Holden v Police - [2020] NZHC 680

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…

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.

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Details

Case: [2020] NZHC 680
Decision Date: 6 April 2020

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ihapera Shayne Holden against her conviction for possessing cannabis for supply. The appeal was heard on 2 April 2020, with judgment delivered on 6 April 2020. The central legal issue was whether the trial judge erred in his assessment of the evidence to the extent that it resulted in a miscarriage of justice. The court was also tasked with determining whether there was a sufficient evidential basis for Holden's conviction for possessing cannabis with the intent to supply.

The court found that the trial judge had erred by not providing reasons for the conviction, which was a violation of the principles of a fair trial. This error rendered Holden's trial unfair, fulfilling the criteria for a miscarriage of justice under the Criminal Procedure Act 2011. Additionally, the court held that the evidence presented did not sufficiently prove beyond reasonable doubt that Holden possessed the cannabis with the intent to supply it for sale. The quantity of cannabis found was below the threshold for a presumption of sale, and Holden's explanation that she was holding the cannabis for another person and intended to receive some in return was not dismissed as unreasonable. The court concluded that the evidence was insufficient to support a conviction under the Misuse of Drugs Act 1975.

The appeal was allowed, and Holden's conviction was quashed. No new trial was ordered.

Orders