Hossaini v Police
[2017] NZHC 2208
•12 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-404-220 [2017] NZHC 2208
BETWEEN MOHAMMAD MUSTAFA HOSSAINI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 September 2017 Counsel:
P C Q Stokes for Appellant
M L Clarke-Parker for RespondentJudgment:
12 September 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 12 September 2017 at 4.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, AucklandMeredith Connell, Wellington
HOSSAINI v NEW ZEALAND POLICE [2017] NZHC 2208 [12 September 2017]
The appeal
[1] Following a search conducted at his parents’ home on 23 March 2016, Mr Mohammed Hossaini was charged with possessing the Class C controlled drug cannabis for the purpose of supply, having possession of a pipe for the purpose of smoking cannabis and possession of scales for the purpose of committing an offence involving cannabis. Pleas of guilty were entered to the charges involving the pipe and scales. Mr Hossaini pleaded not guilty to the charge of possessing cannabis for supply.
[2] After a defended hearing in the District Court at Auckland on 13 January
2017, Judge Fleming found him guilty of that charge and entered a conviction.1 On
17 May 2017, Mr Hossaini was sentenced by a different District Court Judge, on all of the drug charges and an unrelated driving offence to which he had pleaded guilty. To respond to all offending, Judge Henwood imposed 18 months’ intensive supervision, 40 hours’ community work and disqualified Mr Hossaini from driving for a period of six months.2
[3] Mr Hossaini appeals against conviction on the possession for supply charge. No complaint is made about the sentence imposed.
Background
[4] In a “Charging Document” filed in the District Court at Auckland on 24
March 2016, it was alleged that Mr Hossaini, on 23 March 2016, had in his possession 16 deal bags of cannabis, containing 50.12gms, for the purpose of supply. The charge was brought under s 6 of the Misuse of Drugs Act 1975 (the Act). No reference was made to the specific provision within s 6 that Mr Hossaini was alleged
to have breached.3
[5] The 16 deal bags were found in Mr Hossaini’s possession during a search of
his room on 23 March 2016. Mr Hossaini’s mother had contacted Police to report
1 New Zealand Police v Hossaini [2017] NZDC 15886.
2 New Zealand Police v Hossaini [2017] NZDC 14648.
3 The relevant parts of s 6 of the Misuse of Drugs Act 1975 are set out at paras [10] and [13]
below.
that one of her son’s was smoking cannabis in her home. When police officers attended, she allowed them to enter without warrant. A search was undertaken. Constable Drake detected a strong smell of cannabis from Mr Hossaini’s room. On the floor, next to the bed, there was a makeshift bong and a small packet of cannabis.
[6] While undertaking the search, Constable Drake located a sports bag on the ground containing a set of scales and a large bag, with about 500 smaller bags. A large bag containing 16 smaller bags of cannabis was located at the top of a wardrobe in the room. The cannabis weighed 50.12gms. That exceeded significantly the quantity required for a presumption of supply, 28gms.4
[7] Mr Hossaini was arrested for possession of cannabis for supply. He was questioned by Constable Drake. Mr Hossaini admitted that the items belonged to him but that he smoked one small bag of cannabis each day. While denying involvement in the sale of cannabis, Mr Hossaini advised Constable Drake that he had that quantity of cannabis because he was “going to a party tomorrow and … was going to take it” with him. When asked why he was in possession of bags and scales, Mr Hossaini answered that the bags came “in bulk” and he had scales “to weigh weed”.
[8] Mr Hossaini gave evidence that he was 25 years old and his brother was 23 years old. Mr Hossaini said that he used 2.5gms of cannabis per day on average and had packed the cannabis into the bags to monitor for himself and his brother how much had been used. Mr Hossaini said that he would probably have taken five of the bags of cannabis to the party to share with friends who were older than him. Mr Hossaini’s father gave evidence to confirm that his son smoked heavily with his brother, and friends whom he knew were of about his son’s age.
The charge
[9] During the course of the hearing in the District Court, there was some confusion over the provision under which the charge had been brought. While the
Charging Document placed reliance on s 6 of the Act, and identified a maximum
4 Misuse of Drugs Act 1975, s 2(1A) and Schedule 5, cl 1.
penalty of eight years’ imprisonment, it did not make it clear whether the underlying purpose for which Mr Hossaini allegedly had the cannabis was for gratuitous supply or sale.5
[10] Section 6(1) and (2) of the Act provides:
6 Dealing with controlled drugs
(1) Except as provided in section 8, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—
(a) import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3; or
(b) produce or manufacture any controlled drug; or
(c) supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(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).
(2) Every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction to—
(a) imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) imprisonment for a term not exceeding 14 years where paragraph (a) does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) imprisonment for a term not exceeding 8 years in any other case.
….
5 Section 2(1) of the Misuse of Drugs Act 1975 defines the term “supply” as: “includes distribute, give, and sell”.
[11] The charge was expressed simply as possession for “supply”. Ms Stokes, for Mr Hossaini, appears to have acted on the basis that the prosecutor may have been relying on either s 6(1)(d) or (e).6 However, following discussions between counsel and the Judge at the conclusion of the prosecution evidence, it appears that the Judge regarded the charge as having been brought under s 6(1)(f).7 I am satisfied that the hearing continued on that basis, without any material prejudice to Mr Hossaini.
[12] Section 6(1)(f) applies to possession of a controlled drug for any of the purposes set out in s 6(1)(c), (d) or (e).8 Section 6(1)(c) did not apply as it relates solely to Class A and Class B drugs. Section 6(1)(d) did not apply because an element of that offence is that any supply was to a person under the age of 18 years. There was no evidence of such a purpose. Accordingly, the relevant purpose had to be that set out in s 6(1)(e) namely, “to sell or to offer to sell, any Class C controlled drug to a person of or over the age of 18 years”.
[13] Section 6(6) of the Act sets out what is generally called the presumption for supply. That provision states:
(6) For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply …
[14] During the course of cross-examination of Constable Drake, and after completion of the prosecutor’s evidence, there were discussions between the Judge and counsel for Mr Hossaini about the relevance of any intention to sell cannabis on his part. The evidence of Constable Drake concluded with the following exchanges between Judge Fleming and Ms Stokes:
THE COURT:
Not for sale what, sorry?
CROSS-EXAMINATION CONTINUES: MS STOKES
6 See the exchange between Ms Stokes and the Judge, set out at para [14] below.
7 See the exchange between Ms Stokes and the Judge, set out at para [15] below; and the Judge’s
ruling on an application to discharge Mr Hossaini under s 147 of the Criminal Procedure Act
2011, set out at para [16] below.
8 Set out at para [10] above.
Q. You did not, you would accept that Mr Hossaini was not taking the cannabis out with him, did not intend to have the cannabis to sell?
A. I don’t know what his intent was with it.
Q. But you would accept that proposition, wouldn’t you? Your belief was that he had the cannabis to supply or to give it, supply or give it away rather than to sell? Would you accept that?
A. Again I don’t know whether he was going to sell it, give it to people.
I said all I charged him with and went with was the facts that I had. That he had a quantity, had the items, scales, the bags, et cetera, and it fit within the charge of cannabis for supply given the items, the weights, et cetera.
Q. You would be aware as a constable with the New Zealand Police Force that sale is a different subsection to supply under subsection 6 section 1 of the Misuse of Drugs Act?
A. I’d have to have a look at that to know exactly what you’re talking
about.
Q. What I’m trying to determine is the basis for you laying this charge
and –
THE COURT:
Well I’m not sure what you’re saying here. I mean he’s charged under section 6 and I’m presuming that we’re dealing probably, because of the amount, with section 1(f), possession for one of the purposes and one of the purposes is supply. Where does it say that it has to be for sale under that section?
MS STOKES:
Your Honour, it’s sections 1(d) or (e) which would be the relevant section. Well either of those sections. What I’m trying to – it is relevant to perhaps submissions that I would make following the police case.
THE COURT:
Look, he’s charged with had possession for the purpose of supply.
MS STOKES: But in terms of – THE COURT:
He’s not being charged with for sale, has he?
MS STOKES:
No. Well Your Honour, perhaps I can end it there. I have no further questions for this witness.
But feel free to ask more questions if you want to. I was just puzzled as to
what exactly you were thinking. But anyway, perhaps it’ll – re-examination?
RE-EXAMINATION: MR COSSEY – NIL QUESTIONS FROM THE COURT – NIL WITNESS EXCUSED
[15] Ms Stokes made a submission that there was no case to answer. After a brief discussion about the date on which the alleged offence occurred, Ms Stokes turned her attention to the nature of the charge:
MS STOKES:
Secondly, Your Honour, when I was, what I was trying to make a point of is that possession of class C drug over the presumptive limit is for either supply of a person under 18 years of age subject subsection (d). That’s the offence category there. And my submission is that there’s been no evidence that the intention was to supply to a person under 18. Alternatively, with Class C it’s whether it’s for, it can be an offence for sale. And my submission is, due to the evidence given by the police officer and the manner in which, the reason for the laying of this charge and, as Your Honour confirmed, it was supply, not sale, so I would submit section 147 is appropriate here.
THE COURT: [To the prosecutor]
What do you say about that, Mr Cossey? So you’re saying it has to fit within section 6(1)(d) and there’s no evidence that, of either supplying a person under 18 or selling to a person over 18, is that right?
MS STOKES: Yes, Your Honour. THE COURT:
What are you going to say, Mr Cossey?
MR COSSEY:
Well Ma’am, given that there’s the 50 grams over the presumptive for personal use of 28 grams and that there’s 16 deal bags of cannabis that the defendant stated to the officer that he was taking it to a party the next day, that fits in within section 6. And that is enough for the police to prove their charge that the defendant was intending to supply cannabis given the evidence that was found at the search of – the scales and the deal bags in addition to the extra empty deal bags.
…
You see your problem really is subsection (6), isn’t it, that’s why I am saying there must be case law on this, Ms Stokes because this is your problem, for the purposes of subsection (1)(f) a person is presumed until the contrary is proved to be in possession of a controlled drug, for any of those purposes, if he or she is in possession of the controlled drug in an amount or quantity at or over which the controlled drug is presumed to be for supply. So unless you’ve got some case law that tells me that you have to also prove you were about to supply to someone under 18, then I’ll make a decision on this now. So if you haven’t, then I’ll just make the decision unless you’ve got some case laws to the contrary.
…
[16] A further discussion took place about the elements of the offence. Next, Judge Fleming ruled on Ms Stokes’ submission that Mr Hossaini should be discharged under s 147 of the Criminal Procedure Act 2011. After addressing a question concerning the date of the alleged offence, she said:
… The second submission is that the prosecution has failed to establish any evidence that the defendant was supplying cannabis, being a Class C controlled drug, to a person under the age of 18 years or selling or offering to sell the Class [C] controlled drug to a person over 18 years of age. I do not regard that submission as going to one as to whether or not there is no case to answer. The evidence is that the defendant had possession of the number of deal bags that I have already referred to. There is also evidence of him being in possession of scales and that indicates on the basis of no case to answer that the defendant was having possession of cannabis for the purposes of supply. In terms of subsection (6) of section 6, it provides that for the purposes of section (1)(f) a person is presumed, until the contrary is proved, to be in possession of a controlled drug for one of the relevant purposes in this case if he is in possession of the controlled drug in an amount, level or quantity at or over which the controlled drug is presumed to be for supply. This amount of cannabis is well over the presumed amount of
28 grams and, accordingly, I find there is a case to answer.
…
Analysis
[17] In my view, Judge Fleming was right to dismiss the s 147 application at the conclusion of the prosecution case. The presumption for supply set out in s 6(6) of the Act includes sale, when the prosecutor relies on s 6(1)(e). As the quantity of cannabis located exceeded the presumptive level for supply, it was for Mr Hossaini to rebut that presumption. As the prosecution case was grounded on s 6(1)(e), it was necessary for Mr Hossaini to rebut the presumption of sale by credible evidence that
the cannabis was not in Mr Hossaini’s possession for the purpose of sale to a person
of or over the age of 18 years.
[18] Mr Hossaini gave evidence about the purposes for which he had cannabis in his possession. So too did his father. While Mr Hossaini’s father was able to say that his son would consume cannabis and share it with his brother, he could not express any view on the purpose for which the particular quantity of cannabis was in his son’s possession.
[19] In giving judgment, Judge Fleming said, in addressing the question whether the presumption had been rebutted:
[5] As I have indicated, [Mr Hossaini’s] evidence was that the cannabis was for his own use and that of his brother, but he also frankly gave evidence that he would share or give the cannabis to his friends. His evidence was that he had packed the cannabis in the way that he had, that is, in separate snap lock deal bags so that he could monitor his daily consumption and that of his brother. However, he also told the constable when he was travelling from the home back to the police station that he had only packed the cannabis in snap lock bags as he was going to take the cannabis to a party which was on the following day. He expanded on that explanation when giving evidence and said he intended to take five of the snap lock bags for himself and for his friends who he anticipated would be there. He also said that he did not always pack cannabis in separate snap lock bags and it seemed from his evidence that generally he would store cannabis in a jar.
[6] On any basis this was a large amount of cannabis. [Mr Hossaini] said that he purchased cannabis in reasonably large amounts because he was a high consumer and it appeared as if that was a regular level of purchase by him.
[7] [Mr Hossaini’s] explanation for packing the cannabis in snap lock bags as a way to monitor his own consumption is implausible, particularly given he said he did not usually do so. The division of cannabis into multiple snap lock bags together with scales and a situation where [Mr Hossaini] admitted himself he was weighing the cannabis are strong indicators of dealing in cannabis, particularly given the amount of cannabis which was approaching the limit which triggers the presumption.
[8] I am not satisfied [Mr Hossaini’s] explanation is sufficient to prove the contrary and, accordingly, the presumption applies and the charge is proved.
[9] I have also noted for the sake of Ms Stokes that there was a suggestion there needed to be evidence of supply to a person under 18 years of age in terms of one of the subsections of s 6. I note that “supply” includes distribute, give and sell, and there is ample evidence certainly of distribution and giving, but in any event upon my reading of subs (6) where
the onus cannot be discharged on the balance of probabilities by the defendant, then the presumption results in the charge being proved, and I am satisfied that it is so proved.
(Emphasis added)
[20] Ultimately, the question is whether the Judge turned her mind to whether Mr Hossaini had proved on a balance of probabilities that he did not have the cannabis in his possession for sale. For the charge of possession for supply to have been proved, the presumption of supply in s 6(6) had to be linked to the sale of cannabis to a person over the age of 18 years. While sale is a subset of “supply,”9 in order to prove the charge, the issue of sale had to be addressed because of the terms of s 6(1)(e).10
[21] Were it not for the Judge’s comments responding to Ms Stokes’ submissions about s 6(1)(d),11 there is no doubt that the distinction drawn by her between personal use and “dealing”12 made it clear that the presumption of sale had not been rebutted. I have considered carefully whether the Judge’s response on the s 6(1)(d) point creates any ambiguity in that regard.
[22] On reflection, I consider that the Judge did not qualify her earlier findings. In context, by using the term “dealing”, the Judge can only have been referring to sale. She found that Mr Hossaini had not proved on a balance of probabilities that he had the cannabis for a purpose other than for sale. In those circumstances, the conviction
must be upheld.
9 Misuse of Drugs Act 1975, s 2(1), definition of “supply”.
10 Section 6(1)(e) and (6) is set out at paras [11] and [14] above.
11 New Zealand Police v Hossaini [2017] NZDC 15886, at para [9], set out at para [19] above.
Section 6(1)(d) is the provision dealing with supply to a person under the age of 18 years.
12 Ibid, at para [7], set out at para [19] above.
Result
[23] For those reasons, the appeal is dismissed.
P R Heath J
Delivered on 12 September 2017 at 4.00pm
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