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Henderson v R

Henderson v R

Case [2017] NZCA 605 19 December 2017

Identification Evidence

Circumstantial Evidence

Text Messages as Evidence

Sentencing

Forfeiture

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA549/2016
[2017] NZCA 605

BETWEEN	WIREMU HENDERSON Appellant
AND	THE QUEEN Respondent

CA12/2017
BETWEEN	JOHN PERRY MORGAN HENDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	4 September 2017 (further submissions received 12 September 2017)
Court:	French, Williams and Woolford JJ
Counsel:	J K W Blathwayt for Appellant in CA549/2016 J M Miller and B J Peck for Appellant in CA12/2017 D R La Hood and R Georgiou for Respondent
Judgment:	19 December 2017 at 10.30 am

JUDGMENT OF THE COURT

AWiremu Henderson’s appeal against conviction is dismissed.
BJohn Henderson’s appeal against sentence is dismissed

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

John Henderson is the father of Wiremu Henderson and Perry Henderson. John and Wiremu were convicted of drug related offending following a joint jury trial in the District Court presided over by Judge Tuohy.[1]
[1]Perry Henderson was also a defendant at the trial, though was not convicted. He was found not guilty on one charge of being an accessory after the fact to John Henderson’s possession of methamphetamine for supply, and received a discharge without conviction for a one charge of failing to stop.
Wiremu now appeals his two convictions, one for possession of methamphetamine for supply and the other for possession of a psychoactive substance known as N-BOMe for supply.[2] John appeals his sentence.

Background

[2]The jury acquitted Wiremu Henderson of a third charge of possession of cannabis for supply.

The charges against the Hendersons arose primarily as the result of a police search in May 2015 of a residential property at Astrolabe Street in Cannons Creek. John Henderson had a beneficial interest in the property. It was occupied by him, his two sons and Wiremu Henderson’s girlfriend, Ms Grace Arnold.
The police arrived at the address at 6.00 am. They surrounded the property, some officers stationed at the front, others at the rear. After loudly announcing their presence, some officers observed a male person open a window and drop an item into a bush below. The item was later retrieved and found to be a plastic bag containing approximately 20 grams of methamphetamine. Inside the house, police found Wiremu and Grace in one bedroom (bedroom one) and Perry Henderson in a second bedroom. A fourth person was seen fleeing from the rear of the house, leaving behind a shoe, and a trail of cash and bagged methamphetamine. Inside the house, police discovered a significant quantity of drugs and other drug related material in bedroom one. Drugs were also found in the lounge which John had been using as sleeping quarters.
Wiremu, Grace and Perry were arrested on the day of the search. John, whom the Crown say was the man who ran away from the house, was not located for several months.

Wiremu Henderson’s appeal against conviction

Conviction for possession of methamphetamine for supply — identification evidence

Wiremu Henderson’s conviction for possession of methamphetamine for supply relates to the contents of the bag found in the bush.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henderson v R

Details

AGLC: Henderson v The Queen [2017] NZCA 605
Case: [2017] NZCA 605
Decision Date: 19 December 2017

CaseChat Overview and Summary

Wiremu Henderson appeals his conviction for possession of methamphetamine for supply and possession of a psychoactive substance known as N-BOMe for supply. John Henderson appeals his sentence of eight and a half years’ imprisonment. The Court of Appeal unanimously dismissed both appeals. The Court held that Wiremu’s conviction for possession of methamphetamine for supply was properly based on evidence that he was the person seen by police dropping a bag of methamphetamine from a bedroom window. Wiremu’s counsel argued the evidence was unsafe and a formal identification procedure should have been followed, but the Court held that the evidence was more properly classified as resemblance evidence rather than visual identification evidence. In any event, the Court held that there was ample evidence on which the jury could be satisfied Wiremu was the man at the window. The Court also held that Wiremu’s conviction for possession of N-BOMe for supply was properly based on text messages found on a phone in the bedroom which Wiremu shared with his girlfriend. The Court held that the text messages were not hearsay because they were implied or unintended assertions and the probative value of the texts was not dependent on the truth of their contents. The Court held that John’s appeal against sentence must also be dismissed. John argued that his sentence should have been reduced by at least two years because of the imminent forfeiture of his interest in the house at Cannons Creek. The Court held that the relevant statutory provisions do not permit of any interpretation other than that they are dealing only with instrument forfeiture orders. The Court held that the forfeiture of John’s interest in the house was a civil forfeiture order and therefore did not warrant a discount in sentencing.

Orders