Hurring v Police - [2016] NZHC 2424

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000058 [2016] NZHC 2424

BETWEEN
ANGIE LEE HURRING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 October 2016

Appearances:

A J Bailey for the Appellant
C J Boshier for the Respondent

Judgment:

12 October 2016

JUDGMENT OF NATION J

[1] Ms Hurring appeals against two decisions, both delivered in the District Court on 7 June 2016.1 The first found Ms Hurring guilty of one charge of possession of cannabis and one charge of possession of a methamphetamine pipe.2
The second decision convicted her of those offences and sentenced her to 60 hours’ community work. Orders were also made for destruction of the cannabis and the methamphetamine pipe.

[2] The convictions are appealed against on the ground there was an insufficient evidential basis to find the charges established beyond reasonable doubt. The
sentence appeal is formulated as contingent upon the result of the conviction appeal.

1 Police v Hurring [2016] NZDC 12425 [Conviction decision]; Police v Hurring [2016] NZDC
12410 [Sentencing decision].
2 Misuse of Drugs Act 1975, ss 7(1)(a), (2)(b) and 13(1)(a) and (3).

HURRING v POLICE [2016] NZHC 2424 [12 October 2016]

Jurisdiction

[3] Ms Hurring is able to appeal her conviction as of right.3 As first appeal Court, this Court must allow the appeal if satisfied that the Judge erred in his assessment of the evidence to such an extent that there is an error or irregularity which has created a real risk that the outcome of the trial was affected or has resulted in a trial that is unfair or a nullity.4

[4] Ms Hurring is able to appeal the sentence imposed as of right.5 This Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.6 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 (the CPA) was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).7

Appeal against conviction

[5] It is clear from the Judge’s decision that he found, and it was not in dispute, that on 25 September 2015 a Constable Farrell was asked to assist with a traffic stop in Christchurch near Linwood. Constable Farrell approached Ms Hurring and asked her to stand against a fence while she searched her. Ms Hurring turned around and stated that she had a bag hidden on her that was not hers. She then proceeded to pull a small black bag from under the front of her jersey. Constable Farrell asked her to place it on the ground at which point she heard something break. When the bag was searched, the broken pipe used for methamphetamine smoking was found along with a number of small green snap lock bags.

[6] The Judge accepted the constable’s evidence that Ms…

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 [2016] NZHC 2424
Case: [2016] NZHC 2424
Decision Date: 12 October 2016

CaseChat Overview and Summary

Ms Hurring appealed against her conviction and sentence in the District Court. The District Court had found her guilty of possessing a methamphetamine pipe and possessing cannabis. The appeal against conviction was based on the contention that there was an insufficient evidential basis to find the charges established beyond reasonable doubt. The appeal against the sentence was contingent upon the outcome of the conviction appeal. The High Court found that the Judge was not in error in concluding that Ms Hurring had the requisite knowledge of the items in her possession and was therefore guilty of the charges. The appeals against conviction and sentence were dismissed. The Court ordered that Ms Hurring was to present herself to the Probation Service within 48 hours of judgment to commence her community work.

Orders