Hurring v Police - [2017] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND

CA550/2016
[2017] NZCA 78

BETWEEN	ANGIE LEE HURRING Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Winkelmann, Woodhouse and Collins JJ

Counsel:

A J Bailey for Applicant
F G Biggs for Respondent

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…

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.

Continue reading Hurring v Police

Details

AGLC: Hurring v Police [2017] NZCA 78
Case: [2017] NZCA 78
Decision Date: 24 March 2017 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an application from Angie Lee Hurring, who sought leave to pursue a second appeal against her convictions on two drug-related charges. The initial convictions were handed down by Judge Gilbert in the Christchurch District Court, and subsequently, her appeal against the conviction was dismissed by Nation J in the High Court. The central issues before the Court of Appeal were whether Hurring’s proposed grounds for a second appeal met the criteria for leave to appeal, specifically if they raised a matter of general or public importance or if a miscarriage of justice might occur.

Hurring's application for leave to appeal was based on three grounds: firstly, that Nation J made factual errors; secondly, that Nation J misconstrued the legal requirements of the Misuse of Drugs Act 1975; and thirdly, that Nation J failed to properly assess the evidence. The Court of Appeal meticulously reviewed each proposed ground and found them lacking. It was established that Nation J's factual findings were correct and his interpretation of the law was accurate. Moreover, the Court found that the evidence presented at trial sufficiently supported the conclusion that Hurring was aware of the presence of the cannabis and the methamphetamine pipe.

The Court concluded that Hurring's proposed grounds for a second appeal did not meet the stringent criteria for leave to appeal. Specifically, the Court held that Hurring had not demonstrated that her appeal raised a matter of general or public importance or that a miscarriage of justice might occur if her appeal was not heard. Consequently, the Court declined the application for leave to pursue a second appeal, thereby affirming the earlier decisions of the lower courts.

Orders