Hepi v The Queen
[2010] NZCA 503
•1 December 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA295/2010
[2010] NZCA 503
BETWEENNATALIE TE RUAHINE HEPI
Appellant
ANDTHE QUEEN
Respondent
CA370/2010
AND BETWEEN JAMES HENARE HETA
Appellant
ANDTHE QUEEN
Respondent
Hearing:27 September 2010
Court:Glazebrook, Potter and Asher JJ
Counsel:C D Bean for Ms Hepi
Mr Heta in Person
S B Edwards for Respondent
Judgment:1 December 2010 at 9.30am
JUDGMENT OF THE COURT
AMs Hepi’s appeal against conviction on Counts 4 and 5 is allowed. The convictions are quashed.
BMr Heta’s appeal against conviction on Counts 2, 4 and 5 is allowed. The convictions are quashed.
C No retrial is ordered.
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1] Following trial in the District Court at Hamilton the appellants James Heta and Natalie Hepi were convicted of:
(a)unlawful possession of a firearm pursuant to s 45(1)(b) of the Arms Act 1983 (Count 4 in the indictment); and
(b)unlawful possession of an explosive pursuant to s 45(1)(b) (Count 5 in the indictment).
[2] Mr Heta was also convicted of possession of equipment capable of being used for cultivating cannabis with the intention that it be used for cultivating cannabis pursuant to s 12A(2)(a) Misuse of Drugs Act 1975 (Count 2).
[3] Mr Heta had previously entered guilty pleas to charges of possession of utensils and possession of an offensive weapon, namely knuckle dusters.
[4] The jury were hung on Counts 1 and 3 which charged the appellants with cultivation and possession for sale of cannabis on or before 15 February 2008.
[5] This was a third trial for Mr Heta and Ms Hepi. At the first trial the jury were hung and the second trial had to be aborted because of an alleged incident in the public gallery.
[6] On 27 April 2010 Mr Heta was sentenced to six months imprisonment and Ms Hepi was sentenced to 300 hours community work and three months community detention.
[7] The appellants appeal against the convictions. Ms Hepi also appealed against her sentence, but as the sentence has been served the appeal was not pursued. Mr Heta did not file submissions but made brief oral submissions at the appeal hearing. Following discussion with Mr Bean after Mr Bean had presented submissions on behalf of Ms Hepi, Mr Heta confirmed that he adopted the submissions made on behalf of Ms Hepi. We therefore treat the submissions for Ms Hepi as made on behalf of both appellants except where a distinction is required.
Grounds of appeal
[8] The stated grounds of appeal for both appellants are:
(a) misdirection on s 66 Arms Act in the summing up;
(b)replacement flow chart provided to the jury was illogical and incorrect;
(c)misdirection as to the meaning of “occupancy” in s 66;
(d) answer given to the jury question re “assisting” was insufficient;
(e)the misdirection as to the meaning of “occupancy” was likely to have confused the jury in relation to Count 2 (this applies to Mr Heta only).
[9] The appellants say that as a result of the individual and cumulative effects of these errors there has been a miscarriage of justice and the verdicts should be set aside.
[10] The Crown submitted that the trial Judge correctly directed the jury and correctly responded to questions. To the extent there was at first an error in the direction on s 66, in the Crown’s submission it was corrected by a clear re-direction and any errors in the amended flow chart were rendered immaterial by the clear re-direction.
Factual background
[11] Ms Hepi and Mr Heta have been in an “on and off” relationship for some twenty eight years and have a number of children together.
[12] On 15 February 2008 police executed a search warrant at 9 Georgetti Street, Bennydale, a township about 40 kilometres from Te Kuiti. This is a residential property Ms Hepi has owned for around twenty years.
[13] The police officers found over 200 mature cannabis plants growing in the garden and in an outside room which had been converted for this purpose. They found over 1.6 kilograms of dried plant material packaged in varying amounts. In a caravan on the property they found an operable .22 semi-automatic rifle and ammunition (of a different calibre). Other items were found in the caravan which are commonly associated with the cultivation of cannabis and it was apparent the caravan had been set up for use as a growing room.
[14] Although no-one was at home when the search warrant was executed there were indications the house was inhabited. There was fresh food in the kitchen and the cannabis plants were well tended and recently watered.
[15] The cannabis plants, dried cannabis plant material, utensils and equipment were the subject of Counts 1, 2 and 3 in the indictment at the third trial. The firearm and the ammunition were the subject of Counts 4 and 5.
Counts 4 and 5: Relevant statutory provisions
[16] Section 45 of the Arms Act provides:
Carrying or possession of firearms, airguns, pistols, restricted weapons, or explosives, except for lawful, proper, and sufficient purpose
(1)Every person commits an offence ... who, except for some lawful, proper, and sufficient purpose,
(a) Carries; or
(b) Is in possession of
any fire, airgun, pistol, restricted weapon, or explosive.
(2)In any prosecution for an offence against subsection (1) of this section in which it is proved that the defendant was carrying or in possession of any firearm, airgun, pistol, restricted weapon, or explosive, as the case may require, the burden of proving the existence of some lawful, proper and sufficient purpose shall lie on the defendant.
[17] Counts 4 and 5 charged the appellants with possession of the firearm/ammunition. The Crown relied on s 66 of the Arms Act to prove possession.
[18] Section 66 of the Arms Act provides:
Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive found therein
For the purpose of this Act every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, imitation firearm, restricted weapon, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.
[19] The Crown case was that the appellants were “in occupation” of 9 Georgetti Street at the relevant time and therefore deemed by s 66 to be in possession of the firearm/ammunition. The Crown relied on the fact of Ms Hepi’s ownership of the property and on items of circumstantial evidence showing the property was occupied and linking Ms Hepi and Mr Heta to the property.
[20] Ms Hepi’s evidence was that she moved out of the house in September 2007 and had not returned. Mr Heta’s case was that he had not been living at the property since April or May of 2007. Both claimed to have no knowledge of, and therefore no control over, the cannabis or the items found in the property including the firearm and the ammunition.
Summing up
[21] In her summing up Judge Burnett, the trial Judge, explained to the jury that the onus of proving guilt rests on the Crown which means that the Crown must prove the essential elements of a charge beyond reasonable doubt. She said that in respect of Counts 4 and 5 there was an onus on the accused that she would explain later but it was a lesser onus than that on the Crown, being on the balance of probabilities.[1]
[1] At [6].
[22] Having explained the charges in Counts 1, 2 and 3 of the indictment, she turned to Count 4 and referring to a flow chart she provided to the jury, the Judge said:[2]
Moving now to count 4, which is the charge of possession of the .22 rifle. Now the burden of proof beyond reasonable doubt lies with the Crown in proving possession. So the first question is was the accused, either Mr Heta or Ms Hepi depending on who you are considering, in occupation of 9 Georgetti Street? If your answer is yes then that person is deemed at law to be in possession of the .22 rifle, and then if that is the case the next question is has the accused proved on the balance of probabilities that there was some lawful, proper and sufficient purpose for the .22 rifle to be in his or possession? In effect there has been no evidence as to why the rifle was there, what purpose it played. We know it was there but we do not know what purpose it was there for, but what we do know is that this rifle had a silencer attached to it and its identifying serial number had been deliberately removed from it, so I suggest that you will not have any difficulty with the conclusion that you have to reach about lawful, proper and sufficient purpose. If you are of the view that either Mr Heta or Ms Hepi was not in occupation of 9 Georgetti Street then you nevertheless need to go on and ask yourselves the question, did that accused have the .22 rifle in his or her possession? That is did that accused, (a) know what it was and know of its presence and have the ability to exercise control over it, that is to do something with it if he or she wanted to, for example, move it or place it somewhere else or clean it or something like that. And similarly exactly the same elements apply in respect of count 5, which is possession of the ammunition and the ammunition, as we know, was two live .303 full metal jacket bullets and 20 live 12 gauge shotgun cartridges. So you deal with that in the same way as you have dealt with count 4 and you will apply your common sense and experience of life when you are considering these issues. (emphasis added)
[2] At [13].
[23] The Judge next directed the jury about inferences and circumstantial evidence. She referred to a number of inferences submitted by the Crown as supporting the conclusion that the appellants were in occupation of 9 Georgetti Street. She stated:[3]
Similarly, the Crown point you to the presence of the .22 rifle with the silencer and the serial number deliberately erased, and the ammunition and say that Ms Hepi must have known of the presence at her home of these items and, in any event, that at law she was in occupation of 9 Georgetti Street and is therefore held at law to be deemed to be in possession of the firearm and ammunition. As you know Ms Hepi denies this and says that although she continued to have her mail sent to 9 Georgetti Street, she did not live there at all, nor even visit and even when she drove past her home on the way to numerous tangi she only tooted, but she did not stop or even check her home and that once she had moved into town that was the end of her physical connection to the house, and that she could not know anything about what was going on there. (emphasis added)
[3] At [15].
[24] She then said:[4]
Now it is for you to decide what evidence or inferences you agree with and the real issue for your focus in this aspect of the case is whether or not, on the totality of all the evidence, you are satisfied beyond reasonable doubt that Ms Hepi did know about the growing cannabis, the dried cannabis and the equipment and did take steps to assist with the growing of the cannabis and that at law she was in occupation of 9 Georgetti Street and therefore at law she was in possession of the firearm and the ammunition. ... (emphasis added)
[4] At [16].
[25] In summarising the Crown case, the Judge referred again to Ms Hepi being the legal owner of 9 Georgetti Street. The various items of circumstantial evidence which the Crown said linked Ms Hepi and Mr Heta to that address were repeated in considerable detail in the summing up.[5]
[5] At [18]-[20].
[26] Dealing with the defence case for Mr Heta, the Judge noted he was not the owner of 9 Georgetti Street, and he said there was no evidence that he lived or stayed there at the relevant time, or that linked him to the cannabis and other items found there.[6]
[6] At [21].
[27] Dealing with the defence case for Ms Hepi, the Judge said it was the essence of the defence for Ms Hepi that she did not live at 9 Georgetti Street at the relevant times and as a consequence had no knowledge of what was going on there and did not partake in any way in relation to the events at the property. She continued:[7]
... And in respect of the firearm and ammunition, it is the essence of the defence case that Ms Hepi was not in occupation of Georgetti Street and therefore cannot be deemed at law to be in possession of the firearm and ammunition and that she did not know of its existence in any event. And, that if she did, she had no ability to exercise control over it or the ammunition, that is no ability to do something with it if she wanted to, such as move it or something like that.
[7] At [22].
[28] The Judge then interrupted the summary of the defence case for Ms Hepi and said:
I just remind you that the law is that a person in occupation is held at law or deemed to be in possession in relation to the firearm and the ammunition and that the law says that if you are in occupation at 9 Georgetti Street then at law you are in possession of the firearm and ammunition and are deemed to be guilty unless you prove you have them for some lawful, proper and significant and sufficient purpose and you do not need to consider whether there was a lawful, proper and sufficient purpose, there is no evidence of that and clearly the serial number had been deliberately erased on the .22 rifle. The point is if Ms Hepi was in occupation then she was in possession and you apply your common sense to whether or not she was in occupation. On her own evidence she was the legal owner, she had not leased 9 Georgetti Street to anyone, she could enter whenever she wanted to and the Crown says she did. The defence for Ms Hepi said she did not. Ms Hepi had an absolute right to enter whenever she wished and she drove past there frequently and could have gone in at any time. (emphasis added)
Addendum to summing up
[29] Some 20 minutes after the jury retired to consider their verdicts counsel raised with the Judge issues relating to the summing up. Following discussion with counsel the Judge gave further directions to the jury. These followed about 50 minutes after the jury first retired to consider their verdicts. In giving the further directions the Judge referred to replacement flow charts for Counts 4 and 5 which she provided to the jury.
[30] The further directions given by the Judge were:[8]
Madam Foreperson, ladies and gentlemen of the jury have you been required to hand over flow charts for counts 4 and 5? I am going to replace them because I have omitted, when I was speaking with you, an important step for you to consider. As you can see there is an extra step at the foot of the page so I am just going to go over this matter with you. In relation to counts 4 and 5, which is the charge of possession of the .22 rifle and then charge 5 is possession of the ammunition, the following things remain the same: the burden of proof beyond reasonable doubt lies with the Crown in proving possession. Was the accused, and you are considering separately, Mr Heta and Ms Hepi in occupation of 9 Georgetti Street? If the answer to that is no then you have to go to the question of whether that particular accused had the item in his or her possession, that is did that particular accused know what it was and know of its presence and had the ability to exercise control over it, that is to do something with it and if the answer to that is yes, then you have to establish whether or not that accused has proved on the balance of probabilities, which is a lower standard of proof than beyond reasonable doubt, that there was some lawful, proper and sufficient purpose for the .22 rifle to be in his or her possession or of course the ammunition, depending on which count you are referring to and you will recall that the rifle, for example, had the serial number deliberately erased and the ammunition was of the type that I described and it is for you to assess whether there was any lawful, proper and sufficient purpose but that will not be a difficult issue for you to determine. If however you decide that either of the accused was in occupation of 9 Georgetti Street then that person is deemed to be in possession and again they have to establish on the balance of probabilities that there was some lawful, proper and sufficient purpose, or that it was not his or her property, that is the rifle or the ammunition was not his or her property and that it was in the possession of someone else. In other words that the rifle did not belong to this particular person and was in the possession of some other person. I know these are not immediately straight forward matters for you to conclude and if there is any question that you would like to ask me about it obviously I am willing to talk to you about that. The reason that I am raising this with you is that I had omitted that final step, that the accused, even if deemed to be in possession, can rebut that by satisfying you to the balance of probabilities that it was not his or her rifle, or it was not his or her ammunition, and it was in the possession of some other person. Who that other person is does not have to be named or known but that it was in the possession of some other person. (emphasis added)
[8] At [35].
Was the jury misdirected on s 66?
[31] To prove the offences under s 45 of the Arms Act charged in Counts 4 and 5, the Crown had to prove beyond reasonable doubt that:
Count 4
(a) The rifle was a firearm (unless admitted);
(b)The rifle was found at 9 Georgetti Street, Benneydale (unless admitted);
(c) The accused had possession of the rifle.
Count 5
(a) The ammunition was an explosive (unless admitted);
(b)The ammunition was found at 9 Georgetti Street, Benneydale (unless admitted);
(c)The accused had possession of the ammunition.
[32] If the Crown proved those things then the accused was guilty unless the accused proved on the balance of probabilities that possession of the firearm/ammunition was for some lawful, proper and sufficient purpose.[9]
[9] Arms Act 1983, s 45(2).
[33] There appears to have been no dispute about the first and second essential elements the Crown had to prove.
[34] The Crown relied on s 66 to prove the third essential element, possession of the rifle/ammunition. Section 66 is a deeming provision. It deems an occupier of premises to be in possession of any of the items referred to in the section found on the premises, including any firearm or explosive, unless that presumption is rebutted by the occupier. For s 66 to apply to prove possession of those items by the accused, the Crown first had to prove in relation to Mr Heta/Ms Hepi, that he/she was in occupation of 9 Georgetti Street. If that fact was proved to the required standard then a presumption that he/she was in possession of the rifle/ammunition was raised under s 66. This presumption could be rebutted by Mr Heta/Ms Hepi proving, on the balance of probabilities, that the firearm/ammunition was not his/her property and was in the possession of some other person.
[35] Sections 45 and 66 each raise a separate and distinct rebuttable presumption, following proof by the Crown of a certain fact or facts. These are difficult concepts for a jury to understand. Correspondingly, it can be a difficult task for the trial Judge to give clear directions to the jury. There is a risk that the concepts will become confused and muddled. This happened in the present case.
[36] In directing the jury about Count 4, the charge of possession of the rifle, the Judge said the first question for consideration was whether Mr Heta/Ms Hepi was in occupation of 9 Georgetti Street. She then directed the jury that if their answer was, yes, “... that person is deemed at law to be in possession of the .22 rifle”. She then directed the jury that the next question was whether the accused had proved, on the balance of probabilities, that there was some lawful, proper or sufficient purpose for the .22 rifle to be in his/her possession.[10]
[10] At [13]. See at [22] above.
[37] Those directions were clearly wrong. They confused the rebuttable presumptions under s 45 and s 66. The Judge needed to direct the jury that if they were satisfied that Mr Heta/Ms Hepi was in occupation of 9 Georgetti Street, then they had next to consider (under s 66) whether Mr Heta/Ms Hepi had proved that the rifle/ammunition was not his/her property and was the property of some other person. If Mr Heta/Ms Hepi failed to prove those facts, then the presumption of possession would apply and possession of the items would be established through the deeming provision in s 66. Then and only then, would the jury revert to consideration of whether the accused had proved a lawful, proper and sufficient purpose for possession of the items, under s 45 (if this was part of the defence case).[11]
[11] And in this case it does not seem that it was; see at [47] below.
[38] The Judge perpetuated the misdirection in relation to Count 5 later in the summing up.[12] Then, when dealing with inferences and circumstantial evidence, the Judge added to the confusion by referring to inferences raised by the Crown in respect of Ms Hepi in this way:[13]
... that Ms Hepi must have known of the presence at her home of these items and, in any event, that at law she was in occupation of 9 Georgetti Street and is therefore held at law to be in possession of the firearm and ammunition.
[12] At [13].
[13] At [15]. See [23] above.
[39] Although she continued with an explanation of Ms Hepi’s denial of occupation, no directions were given about how the presumption of possession could be rebutted under s 66.
[40] Again, when summarising the case for Ms Hepi, the Judge confused the rebuttable presumptions applying under s 45 and s 66 when she said:[14]
I just remind you that the law is that a person in occupation is held at law or deemed to be in possession in relation to the firearm and the ammunition and that the law says that if you are in occupation at 9 Georgetti Street then at law you are in possession of the firearm and ammunition and are deemed to be guilty unless you prove you have them for some lawful, proper and significant and sufficient purpose and you do not need to consider whether there was a lawful, proper and sufficient purpose, there is no evidence of that and clearly the serial number had been deliberately erased on the .22 rifle. The point is that Ms Hepi was in occupation then she was in possession ... (emphasis added)
[14] At [22].
This direction assumes that the presumption in s 66 cannot be disproved because the serial number was erased. But the erasure of the serial number was quite irrelevant to the rebutting of the s 66 presumption, ie it had no relevance to whether or not the rifle was Ms Hepi’s property or whether it was the property of some other person.[15]
[15] It would have been very relevant to the rebuttable presumption under s 45, however.
[41] Having been alerted by counsel to the misdirections, the Judge tried, but failed, to correct them when she gave the further direction to the jury. The Judge provided the jury with a replacement flow chart and gave the jury further direction, referring to the replacement flow chart. The re-direction again confused the rebuttable presumptions under s 45 and s 66. The Judge said:[16]
If however you decide that either of the accused was in occupation of 9 Georgetti Street then that person is deemed to be in possession and again they have to establish on the balance of probabilities that there was some lawful, proper and sufficient purpose, or that it was not his or her property, that is the rifle or the ammunition was not his or her property and that it was in the possession of someone else. In other words that the rifle did not belong to this particular person and was in the possession of some other person. (emphasis added)
[16] At [25].
[42] The confusion in the directions given to the jury was carried through to the replacement flow chart provided to the jury. We mention that although the replacement flow chart provided to the jury was included in the materials before us, the original first flow chart was not available. It was apparently retrieved from the jury and counsel, but no copy had been retained on the Court file.
[43] We consider it imperative that a copy of any material provided to the jury be retained on the Court file. If an item such as a flow chart has been given to the jury but replaced by a subsequent version, both copies should be on the Court file with the substituted copy clearly marked that it has been replaced by the later version. Further, we consider that counsel should be able to retain a copy of any material issued to the jury so it is available to them when considering the summing up as a whole.
[44] In our view, the summing up would have been greatly improved and made more manageable by using an issues based approach focused on a flow chart that set out issues in question form.
[45] This approach would have required the Judge to clarify with counsel in advance of summing up to the jury, and preferably before counsel made their closing addresses, what were the issues in the case that the jury had to determine. We observe that a discussion by the Judge with counsel on the basis of a draft flow chart prepared by the Judge, will usually assist in defining the issues in the case and will ensure the Judge has the benefit of counsels’ input into the flow chart or question trail.
[46] It seems there was no dispute that the rifle was a firearm and the ammunition was an explosive within the meaning of the Arms Act. Evidence to this effect was given by a Police Armourer. It seems it was not in dispute that the firearm, ammunition and cannabis (the subject of Counts 1 to 3) were found at the address. Mr Allen stated this in his closing address for Mr Hepi. But these matters had to be confirmed with counsel, so the jury could be directed by the Judge that while they were essential elements of the chagres which the Crown must prove, they were not in dispute.
[47] Next, it seems clear from the Crown’s closing address that the Crown relied on only the deeming provision in s 66 to prove possession of the rifle/ammunition. There is no suggestion in the Crown’s closing address that the Crown sought to establish possession by the alternative route of actual possession about which the Judge directed the jury in her summing up[17] and in the flow chart. Indeed, on the evidence the deeming provision was the only route realistically available to prove possession. Giving the jury directions on both routes introduced confusion in the application of these complex statutory provisions.
[17] At [13].
[48] Further, there was no suggestion in the closing addresses of either defence counsel that (assuming possession was proved), Ms Hepi and/or Mr Heta relied on the rebuttable presumption in s 45 that he/she had some lawful, proper and sufficient purpose for being in possession of the rifle/ammunition. There was no evidential foundation for this defence. The evidence was that neither of the accused had a firearms licence for the rifle and there was evidence that the serial number had been deliberately erased. This aspect should have been cleared away by the Judge with counsel before the Judge finalised the flow chart and summed up to the jury.
[49] If these matters had been clarified, and the issues in the case clearly identified, the summing up and the flow chart would have been quite straightforward, and would have focused on:
(a)whether the Crown had proved beyond reasonable doubt that the accused was in occupation of 9 Georgetti Street; and
(b)if so, whether the accused had proved on the balance of probabilities that the rifle/ammunition
(i) was not her/his property; and
(ii) was in the possession of some other person.
[50] The crucial issue of occupancy would then have been addressed by the Judge explaining the meaning of “in occupation”, followed by summaries of the Crown and defence cases on occupancy and identification of the relevant evidence.
Jury questions
[51] Some 20 minutes after the jury retired the second time, they asked two questions. The questions were:
(1) “What defines occupancy”?
(2) “Is assisting different from not stopping something you know about”?
[52] The Judge inquired of the foreperson in respect of each question, whether it related to all charges the jury were considering. The foreperson confirmed that each question related to all charges. The Judge then replied to the questions as follows:
First question
Well what defines occupancy or in occupation or occupier, is not defined either in the Acts you are considering or by the Courts and you apply your commonsense and experience of life when you are considering whether or not either accused was “in occupation” or an “occupier” at 9 Georgetti Street and perhaps I can add that a person who either alone or in combination with others, has the right to use the premises as he or she wishes, such as to live in it or stay in it regularly. In [sic] factors such as a right to physical access to or some regular physical presence at the address or ownership are all relevant. Occupancy, occupier and in occupation can have a normal meaning such as either living there or in regular attendance there.
Second question
Well, yes, assisting is different to not stopping something that you know about. Assisting involves some active step being taken such as, for example, in the cultivation, watering the plants, staking them, trimming them, preparing the soil, setting the timer. Any of those things would be assisting. It is an action, a deliberate action taken. This is different from not stopping something you know about. Which is passive, such as standing by and doing nothing.
Was the jury misdirected as to the meaning of “occupancy”?
[53] The Crown relied on s 66 of the Arms Act to prove that each of the accused was in possession of the firearm/ammunition for the purposes of s 45. Consequently, whether each of the appellants was “in occupation” of 9 Georgetti Street, and thereby deemed by s 66 to be in possession of the rifle/ammunition (unless he/she could rebut the presumption), was a crucial issue in the case.
[54] The Judge did not provide an explanation of the meaning of “in occupation” in her summing up. She told the jury to apply their common sense as to whether the accused were in occupation of 9 Georgetti Street.
[55] She focused on the facts and circumstances which linked Mr Heta and Ms Hepi respectively to 9 Georgetti Street and which the Crown said provided proof beyond reasonable doubt that each was “in occupation” of the property. These facts included in the case of Ms Hepi, that she owned the property and there was no evidence that she had leased or let it to anyone else and in the case of Mr Heta, that he had a long term relationship with Ms Hepi.
[56] In summarising the defence case for Mr Heta, the Judge traversed the facts and circumstances relied on to prove that he neither lived or stayed at the property at the relevant time, but at a different address, 17 Craig Terrace. In the case of Ms Hepi, the Judge referred to her evidence that although she owned 9 Georgetti Street, she was not “in occupation” of the property because she had moved to an address in Broadford Place, Te Kuiti in August 2007 in order to provide accommodation for four grandchildren as well as four of her own children, and she had not lived at or visited 9 Georgetti Street at all, during the relevant period.
[57] There were numerous other items of evidence that the Judge drew to the attention of the jury for consideration in determining the issue of occupation of 9 Georgetti Street. There was evidence that someone was currently using the property. There was fresh food in the kitchen and the cannabis plants were recently watered.
[58] Obviously the jury struggled with the meaning of “in occupation” and sought clarification from the Judge. The Judge correctly responded that “occupancy” and “in occupation” are not defined by the Arms Act and that the jury must use their common sense and experience of life in determining whether either Mr Heta or Ms Hepi was in occupation of 9 Georgetti Street.[18] However, this did little more than repeat what the Judge said in her summing up, and the balance of her answer to the jury was contradictory and confusing. The jury should have been given much more help in the summing up with the meaning of “in occupation”, and the meaning needed to be related in the circumstances of this case.
[18] In R v Coultas [2009] NZCA 71 at [15] it was stated that juries are simply asked to utilise their commonsense and experience of life in considering whether an accused person is relevantly in occupation of any land or building.
[59] In this case, where Ms Hepi was the owner of 9 Georgetti Street, it was necessary to clearly distinguish between ownership on the one hand and occupation on the other. While legal control over land and buildings will vest in an owner (unless the owner has assigned or devolved the right of control to another person, e.g. a lessee), legal control will not necessarily mean that the owner is “in occupation” of the property. Factors such as the extent of a person’s physical access to, or presence at, an address and the degree of his/her use of the property at the relevant time, will be important factors in determining whether it can fairly be said that a person was “in occupation” of the property. In R v McKeown this Court said:[19]
The lesser the extent of occupation by way of presence or use of the land or building, the more readily should an accused be able to discharge the onus to rebut on a balance of probabilities the presumption of his possession of any weapon found on that land or building.
[19] R v McKeown (1988) 3 CRNZ 438 (CA) at 442.
[60] The Court also said:[20]
It would be more difficult for a person with control over the premises to rebut the presumption of possession of a weapon found on those premises than it would be for a person with no such control.
[20] At 441.
[61] A right or entitlement to occupy is only one factor to be considered in determining whether the accused was in occupation of the property. The reference in the Judge’s answer to the jury’s question, to “the right to use the premises as he or she wishes” and “a right to physical access”, without a clear distinction between ownership and occupation being drawn, may well have left the jury uncertain or confused.
[62] There is a risk that the Judge’s answer would have confirmed any confusion or misunderstanding in the minds of the jury created by the statement which concluded the Judge’s summary of Ms Hepi’s defence in her the summing up:[21]
The point is if Ms Hepi was in occupation then she was in possession and you apply your common sense to whether or not she was in occupation. On her own evidence she was the legal owner, she had not leased 9 Georgetti Street to anyone, she could enter whenever she wanted to and the Crown say she did. The defence for Ms Hepi said she did not. Ms Hepi had an absolute right to enter whenever she wished and she drove past there frequently and could have gone in at any time.
[21] At [22].
Again, legal ownership of the property by Ms Hepi was equated by the Judge with occupation for the purposes of s 66.
Was the answer to the jury question re “assisting” insufficient?
[63] It is difficult to see how the jury’s second question related to Counts 4 and 5 and the Judge did not seek clarification from the jury. The expression “assist” was part of the Judge’s directions on Count 1 (cannabis cultivation) and the Judge’s answer was given in the context of that charge. However, as Mr Bean submitted, if in relation to Counts 4 and 5 the jury were postulating that Ms Hepi was an innocent bystander the answer simply added confusion.
Count 2
[64] Count 2 charged possession of equipment for cultivation of cannabis. The jury found Mr Heta, but not Ms Hepi, guilty of that charge.
[65] Given the general confusion in the directions to the jury about the meaning of “possession” we consider there is a real risk this verdict is also unsafe. We allow Mr Heta’s appeal on Count 2.
Result
[66] For the reasons given all the stated grounds of appeal succeed. Ms Hepi’s appeal against conviction on Counts 4 and 5 is allowed. The convictions are quashed. Mr Heta’s appeal against conviction on Counts 2, 4 and 5 is allowed. The convictions are quashed. The convictions followed a third trial and were on charges less serious than the charges on which the jury were hung. No retrial is ordered.
[67] Ms Hepi’s sentence, though the subject of an appeal, has been served.
Solicitors:
Crown Law Office, Wellington for Respondent
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