Holden v Police
[2020] NZHC 680
•6 April 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-5
[2020] NZHC 680
BETWEEN IHAPERA SHAYNE HOLDEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 April 2020 Counsel:
M L Dillon for Appellant A S Alcock for Respondent
Judgment:
6 April 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 6 April 2020 at 4:00 pm Registrar/Deputy Registrar
Solicitors:
Martin Dillon, Hamilton, for Appellant Crown Solicitor, Hamilton, for Respondent
HOLDEN v POLICE [2020] NZHC 680 [6 April 2020]
Introduction
[1]Ms Holden appeals her conviction for possessing cannabis for supply.
[2] My task is to decide whether the first instance Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or whether for any other reason a miscarriage of justice has occurred.1
Background
[3] As will become apparent, this is a rather unusual case. As a result, it is necessary for me to set out the background in some detail.
[4] Ms Holden was charged under s 6(1)(f) of the Misuse of Drugs Act 1975 (“the Act”). The offence description in the charging document is:
Did have in her possession a Class C controlled drug, namely cannabis, for the purpose of supply.
[5] The circumstances giving rise to the charge are that on 28 September 2018 a man telephoned the police and reported that a woman had attempted to sell him cannabis in central Hamilton. An operator with the police communications section contacted two constables who were patrolling in central Hamilton in a police car. One of them, Constable Monk, subsequently became the only witness at Ms Holden’s trial. His evidence, relevantly, was as follows:
(a)The officers were told by communications that a male informant had told them a female had attempted to sell him cannabis on Victoria Street. The description provided was that the female was wearing a blue hoodie with tight jeans and jandals.
(b)On their way to Victoria Street the constables were told that the City Cameras operator said they had observation of a female matching that description on their CCTV and that they had located her near the BP service station on Victoria Street.
1 Criminal Procedure Act 2011, s 232(2)(b) and (c).
(c)As the constables approached the BP service station on Victoria Street a male waved them down. He turned out to be the informant who had telephoned the police. He did not want to identify himself but he told the constables a female (inferentially the female he had reported offering him cannabis) had just walked on to the Boundary Road bridge and was walking away from them.
(d)The constables drove their patrol car on to the bridge and saw Ms Holden, the only person on the bridge, walking away from them. She was wearing a jersey, jandals and tight jeans. The officers stopped her:
So once we approached Ms Holden we had a brief conversation, introduced ourselves, obtained her details, explained why we were there speaking with her and then after that I explained to her that due to the information I was given by the informant combined with the information from City Cameras her matching the description, I suspected that she was the person the informant was talking about and I went through the processes of invoking the Search and Surveillance Act in which I informed her why I was going to search her, what I was searching her for. I gave her my name and then I read her her Bill of Rights in full.
(e)Ms Holden was compliant and just as the female constable accompanying Constable Monk was about to commence the search, Ms Holden pulled a container from her clothing and handed it over, saying “yes, I do have something”. The plastic container contained packaged cannabis. Inside the plastic container was a plastic bag containing several small plastic bags with cannabis in them and “tinnies”2. In total the cannabis weighed 25 grams.
(f)Constable Monk asked Ms Holden what she was going to do with the tinnies, to which she replied:
Someone was going to pick them up. That was supposed to be all. I was just supposed to get a smoke out of it.
2 Portions of cannabis wrapped in tinfoil.
At that point Ms Holden was arrested.
[6] I note that Constable Monk in his evidence-in-chief and in cross-examination referred to his “suspicion” that Ms Holden possessed cannabis. However, in re- examination he was asked to rate his suspicion of finding cannabis on Ms Holden on a scale of 1-10 (where 10 was ‘definitely going to find cannabis’). The constable gave his rating as 8.
[7] The trial Judge was Judge AC Roberts. He heard Constable Monk’s evidence on 1 August 2019. At the conclusion of the evidence, Ms Holden’s trial counsel challenged the admissibility of Constable Monk’s evidence. Counsel, Mr Nye-Wood, did not make an application for discharge as such but proceeded on the basis that if Constable Monk’s evidence was inadmissible then a discharge would have to follow. That is how Judge Roberts proceeded.
[8] Mr Nye-Wood’s argument was that the stopping of Ms Holden by the police officers was unlawful because they did not have sufficient grounds to believe she was in possession of cannabis.
[9] Judge Roberts reserved his decision and, eventually, the hearing resumed on 17 September 2019, at which point Judge Roberts delivered his decision orally. It seems that Ms Holden was not present.3
[10]Judge Roberts ruled:4
In my determination Constable Monk had reasonable grounds to believe the defendant was in possession of cannabis. Given the second requirement of the search holds a lower threshold I suggest he also had reasonable grounds to suspect an offence against the Misuse of Drugs Act had or was being committed in respect of the cannabis. I note counsel for the defendant does not appear to contest this point. As such there was a lawful warrantless search under s 22 Search and Surveillance Act 2012 and the defendant’s challenge to the admissibility of the evidence obtained thus cannot succeed.
[11] There is no record that Judge Roberts did anything further beyond noting on the record of hearing that he hoped a local Judge would sentence the defendant. There
3 Judge Roberts noted the record of hearing to that effect.
4 Police v Holden [2019] NZDC 18651 at [26].
is no record of a finding of guilt or of reasons for a finding of guilt. The Judge does not appear to have entered a conviction or set a sentencing date. It is as though the decision that the evidence of Constable Monk was admissible was regarded as determining the trial against Ms Holden. Counsel on appeal do not suggest otherwise.
[12] Eventually, on 21 January 2020, it fell to Judge PR Connell to sentence Ms Holden.5 Mr Nye-Wood represented Ms Holden at the sentencing. Judge Connell convicted Ms Holden and sentenced her to 190 hours’ community work.
The appeal
[13] The notice of appeal (filed by Mr Nye-Wood) contains two grounds going to miscarriage of justice:
(a)The first ground is that Judge Roberts erred in finding the evidence of Constable Monk of the search of Ms Holden admissible.
(b)The second ground is that Judge Roberts erred in his assessment of the evidence because he did not consider whether Constable Monk’s evidence was sufficient to prove that Ms Holden possessed the cannabis for the purpose of supply or sale.
[14] As to the first ground, Mr Dillon, for the appellant, responsibly accepts that it cannot succeed.6
[15]Section 22 of the Search and Surveillance Act 2012 provides, relevantly:
(1)A constable may, in the circumstances set out in subsection (2), search a person without a warrant.
(2)The circumstances are that the constable has reasonable grounds –
(a)to believe that the person is in possession of – [a controlled drug]; or
5 Police v Holden [2020] NZDC 1581.
6 Synopsis of submissions for appellant, dated 9 March 2020, at para 20.
(b)to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug…
[16] For the purpose of forming a s 22 belief or suspicion, Constable Monk was entitled to rely on the information given to him by police communications. This was corroborated by the informant in person. Constable Monk found Ms Holden where the informant indicated and her clothing was consistent with the information he had received. The constable considered the likelihood he would find cannabis on Ms Holden as “8” on a scale of 1-10. On the evidence, that was a reasonable assessment. I am satisfied that Constable Monk had the requisite “belief” under s 22(2)(a). Constable Monk used the word “suspect” in his account of what he explained to Ms Holden,7 but I am satisfied that he had the requisite belief. In any event, on the information given to him, he had reasonable grounds to suspect, per s 22(2)(b), that Ms Holden had tried to sell cannabis to the informant.
[17]It follows that the first ground of appeal cannot succeed.
[18]As to the second ground, s 6 of the Act provides, relevantly:
(1) Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—
…
(d)Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e)Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f)Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.
[19]The definition of “supply” in s 2 of the Act “includes distribute, give, and sell”.
[20] The basis of this ground of appeal is that there is no admissible evidence that Ms Holden possessed the cannabis for the purpose of sale and hence insufficient evidence to found the conviction.
7 See [5](d) of this judgment.
[21] The quantity of cannabis (25 grams) was below the weight where sale is presumed.8 The evidence of what the informant told the police is inadmissible as hearsay9 (and there is no suggestion it could pass the hearsay admissibility test in s 18 of the Evidence Act 2006). What is left is that Ms Holden was proved to possess 25 grams of cannabis, packaged in the way dealers package cannabis. But, Ms Holden gave an explanation that she was holding the cannabis for another person and that she was going to receive some cannabis as a reward. That is not an admission of possession for sale. It is an admission of possession for one of the other meanings of “supply”. Ms Holden, when searched after her arrest, did not possess any money.
[22] There is no evidence of the age of the person to whom Ms Holden was referring.
[23] Mr Dillon submits, therefore, that there was no sufficient evidential basis for Ms Holden’s conviction.
[24] Supplying a person of or over the age of 18 years with cannabis (other than by selling) is an offence but it is not an offence under s 6. It is an offence under s 7(1)(b). It is a lesser offence than the offences prescribed in s 6.
[25]Ms Alcock for the respondent submits that in Taitapanui v Police,
Churchman J said it is apparent from ss 6 and 7 of the Act that: 10
a.It is an offence to supply cannabis to anyone;
b.It is an offence to sell cannabis to anyone;
c.It is more serious to sell or supply cannabis to young people (persons under 18 years of age) than to adults (persons of or over 18 years of age); and
d.It is more serious to sell cannabis to adults than to merely supply them.
[26] In reliance on these dicta, Ms Alcock submits no miscarriage of justice can have occurred. Age is of relevance only when the charge concerns supplying drugs to
8 Misuse of Drugs Act 1975, s 6(6) and sch 5 (“cannabis plant”, 28 grams).
9 Evidence Act 2006, s 17.
10 Taitapanui v Police [2019] NZHC 460 at [19] and [27].
a person or persons under the age of 18. In other words, conviction was inevitable once Constable Monk’s evidence was ruled admissible.
Discussion
[27] As I have said, my task is to determine whether a miscarriage of justice has occurred:11
… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[28] The simple point is that we do not know why Judge Roberts found Ms Holden guilty of the charge. There is no record of his reasons. There is no record that the Judge actually entered a finding of guilty. All the Judge recorded on the record of hearing was his hope that a local Judge might sentence Ms Holden. Neither counsel suggests that reasons were given but the record has been lost. Judge Roberts is a very experienced Judge. I do not discount the possibility the record has been lost, but I have to proceed on the basis there are no reasons for why Ms Holden was convicted and sentenced on this charge.
[29] Section 106 of the Criminal Procedure Act 2011 (“the CPA”) requires a court to give reasons for finding a defendant guilty or not guilty. The Supreme Court in Sena v Police12 considered the requirement to give reasons under s 106 (and at common law) in the context of the requirements of s 232 of the CPA which prescribes how a first appeal court must determine an appeal. Section 232 provides (relevantly):
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
11 Criminal Procedure Act 2011, s 232(4).
12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case
[30]The court said:13
… The language of s 232(2)(b) reflects an assumption that the reasons given by a Judge will reflect that Judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c): this on the basis that a reasoned judgment is essential to a fair trial…
[31] In my view, the apparent failure to provide reasons for a finding of guilt has resulted in an unfair trial. Ms Holden has been convicted and sentenced without knowing the basis on which she has been adjudged guilty. An essential part of a fair trial is absent.
[32] I do not accept Ms Alcock’s submission that here a conviction was inevitable on the evidence and so there is no unfairness amounting to a miscarriage of justice. It might be that in an exceptional case where guilt is ineluctable her submission could be accepted. But this is not such a case.
[33]In my view, the evidence against Ms Holden should have led to her acquittal.
[34] Ms Holden could have been found guilty of the charge only if the prosecution proved beyond reasonable doubt that she possessed the cannabis for the purpose of sale. That is because a person cannot be convicted under s 6(1)(f) of supplying cannabis other than by way of sale to a person aged 18 years or over.
[35] Ms Holden’s explanation that she held the cannabis for another person and her reward was going to be “a smoke” is exonerating with respect to the charge. There is no evidence that anybody under the age of 18 years had an interest in Ms Holden’s cannabis.
13 At [36].
[36] Therefore, for a finding of guilty, Ms Holden’s explanation would have to be dismissed as not being reasonably possible and the remaining prosecution evidence would have had to have been found sufficient to prove beyond reasonable doubt that Ms Holden possessed the cannabis for the purpose of sale. I see no basis for dismissing her explanation. Even if there was, the remaining evidence is not cogent enough to prove possession for sale. The evidence simply puts Ms Holden in possession of a quantity of cannabis packaged in a way dealers package their product. Equally, it is the form in which customers buy it. Ms Holden was not found to have in her possession any other indicators of dealing, and indeed had no money on her.
Decision
[37] The failure to provide reasons for a finding of guilt is an error which made Ms Holden’s trial unfair and establishes a miscarriage of justice.
[38] In any event, I am of the view that the evidence of Constable Monk could not prove beyond reasonable doubt that Ms Holden possessed the cannabis for sale.
[39] The appeal is allowed. Ms Holden’s conviction is quashed. In all the circumstances, there will not be a new trial.
Brewer J
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