Hurring v Police
[2017] NZCA 78
•24 March 2017 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA550/2016 [2017] NZCA 78 |
| BETWEEN | ANGIE LEE HURRING |
| AND | NEW ZEALAND POLICE |
| Court: | Winkelmann, Woodhouse and Collins JJ |
Counsel: | A J Bailey for Applicant |
Judgment: (On the papers) | 24 March 2017 at 3 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Ms Hurring seeks leave to pursue a second appeal against her convictions on two charges:
(a)Possession of a pipe for the purpose of consuming methamphetamine.[1]
(b)Possession of cannabis.[2]
[1]Misuse of Drugs Act 1975, s 13(1)(a) and (3); liable to a maximum penalty of one year’s imprisonment or a fine not exceeding $500 or both.
[2]Section 7(1)(a) and (2)(b); liable to a maximum penalty of three months’ imprisonment or a fine not exceeding $500 or both.
Ms Hurring was convicted of these offences by Judge Gilbert in the Christchurch District Court on 7 June 2016.[3] She was sentenced to 60 hours of community work.[4] Ms Hurring’s appeal against conviction was dismissed by Nation J in the High Court on 12 October 2016.[5]
Background
[3]Police v Hurring [2016] NZDC 12425 [Conviction judgment].
[4]Police v Hurring [2016] NZDC 12410 [Sentencing notes] at [7].
[5]Hurring v Police [2016] NZHC 2424 [First appeal].
Ms Hurring’s vehicle was stopped by the police at 1.40 am on 25 September 2015. The vehicle was being driven by Ms Hurring’s partner. Ms Hurring was in the front passenger seat. Two male passengers were in the rear seats. The police smelt cannabis in the car. They undertook a search of the vehicle which revealed cannabis packaged in ziplock bags in the glovebox and boot.[6] Ms Hurring was told by Constable Farrell that she would be searched and was asked if there was anything she wanted to disclose. She admitted she had a pouch bag under her clothing. That bag contained the methamphetamine pipe and a number of empty ziplock bags. Ms Hurring also removed $2,000 in cash from her bra.
[6]That cannabis was not the subject of Ms Hurring’s charges.
Ms Hurring was taken to the police station where Constable Farrell says she produced a ziplock bag of cannabis from her bra. The ziplock bag of cannabis was similar to the ziplock bags found in the pouch bag. Ms Hurring said the pouch bag had been handed to her by one of the men in the back seat of the car and she thought money was inside the pouch bag. Constable Farrell said Ms Hurring told her she had taken possession of the bag in the mistaken belief that she was not likely to be searched by the police. Ms Hurring denied having said this. She said the ziplock bag of cannabis was located between her t-shirt and jersey and that it must have somehow travelled out of the pouch bag.
District Court decision
Judge Gilbert found Ms Hurring’s explanation of events “completely implausible”.[7] He concluded Ms Hurring knew the cannabis was in her bra and that she had possession of the methamphetamine pipe in the pouch bag for the purpose of consuming methamphetamine.[8]
High Court decision
[7]Conviction judgment, above n 3, at [10] and [35].
[8]At [38].
Nation J analysed each ground of appeal raised by Ms Hurring and reached the following key conclusions:
(a)Judge Gilbert did not err in respect of any material factual findings.[9]
(b)Judge Gilbert did not fail to determine the factual basis for his findings. There did not have to be contradictory evidence from other witnesses for the Judge to reject Ms Hurring’s explanation.[10]
(c)Judge Gilbert did not err in his assessment of the evidence. In particular, the absence of Ms Hurring’s fingerprints on the ziplock bags and the presence of another person’s fingerprints on those bags did not mean that Judge Gilbert had misconstrued the evidence concerning Ms Hurring’s possession of the cannabis.[11]
(d)Judge Gilbert had properly considered the possession of the pipe charge and correctly concluded Ms Hurring had possession of that pipe for the purposes of consuming methamphetamine.[12]
Leave to appeal to this Court
[9]First appeal, above n 5, at [20].
[10]At [34].
[11]At [36]–[37].
[12]At [49].
Ms Hurring seeks to appeal to this Court on three grounds. She wishes to argue:
(a)Nation J made factual errors.
(b)Nation J misconstrued the requirements of s 13(1)(a) of the Misuse of Drugs Act 1975 concerning the purpose of the possession of pipe charge.
(c)Nation J failed to properly assess the evidence when dismissing Ms Hurring’s appeal.
Alleged factual errors
In her application for leave to appeal Ms Hurring says Nation J misinterpreted the evidence concerning the absence of her fingerprints on the ziplock bags found in the pouch bag. In our assessment there is no merit to this aspect of the proposed ground of appeal. The fact Ms Hurring’s fingerprints were not found on the ziplock bags and the presence of another person’s fingerprints on those bags did not mean Ms Hurring did not know about the cannabis or the methamphetamine pipe.
Ms Hurring takes issue with Nation J’s interpretation of the evidence about who passed the pouch bag to Ms Hurring. There is also nothing in this point. The key issue at trial was whether Ms Hurring knew about the cannabis and the pipe. There was ample evidence to conclude she did know about those items.
Ms Hurring also challenges Nation J’s interpretation of her evidence concerning whether or not she had told the police she was feeling unwell. Again, we see no basis for allowing a second appeal to pursue that particular issue.
Misapplication of the law
The second proposed ground of appeal alleges Nation J misconstrued s 13(1)(a) of the Misuse of Drugs Act. However, a careful reading of Nation J’s decision reveals that he fully understood that the offence required proof that Ms Hurring had possession of the pipe for the purposes of committing an offence against the Misuse of Drugs Act. Nation J specifically held:[13]
In this instance, there was ample evidence on which the Judge could conclude that either Ms Hurring or those in the car with her intended the methamphetamine pipe would be used to consume methamphetamine.
[13]First appeal, above n 5, at [49].
There is no basis to the suggestion Nation J failed to address the key ingredients of s 13(1)(a) of the Misuse of Drugs Act.
Adequacy of assessment of the evidence
The third proposed ground of appeal alleges Nation J failed to give adequate weight to Ms Hurring’s explanation that the pouch bag had been handed to her just before the police search.
This proposed ground of appeal also lacks merit. Nation J explained in his judgment:
[33] In relation to Ms Hurring’s contention that she was an innocent person in all that happened the Judge found her evidence to be “completely implausible”. On my reading of the evidence, it was a conclusion that he could reasonably come to. It meant that her account of what happened and how she came to be in possession of the bag with a pipe in it could be rejected. …
Conclusion
Section 237(2) of the Criminal Procedure Act 2011 requires Ms Hurring to satisfy us that her appeal raises a matter of general or public importance or that a miscarriage of justice may have occurred or may occur if her appeal is not heard. Ms Hurring has failed to pass these high thresholds. We are satisfied Ms Hurring’s proposed appeal does not raise any matter of general or public importance and that no miscarriage of justice has occurred or will arise if Ms Hurring is not able to pursue a further appeal.
The application for leave to pursue a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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