Hurring v Police
[2016] NZHC 2424
•12 October 2016
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 RespondentJudgment:
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 Hurring was given her
rights in the normal manner after Ms Hurring had removed the bag from under the front of her jersey and they had heard something break. He accepted that Ms
3 Criminal Procedure Act 2011, s 229.
4 Section 232(2)(b) and (4).
5 Section 244.
6 Section 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
Hurring was asked who owned the bag and she said it had been handed to her from two males who had been sitting in the back of the car and who had recently jumped in the car after Ms Hurring had met them at a bakery. The Judge accepted the constable’s evidence that Ms Hurring told her she had offered to take the bag as there was no female officer so she knew she could not be searched.
[7] The Judge concluded that Ms Hurring knew a methamphetamine pipe was in the bag and knew what it was, given the circumstances of the search, Ms Hurring secreting a bag up her top and some of the inconsistencies that were exposed in cross-examination, along with the fact he found cannabis had been located in her bra in the same type of green bag that was located in the black belt bag.
[8] The Judge also accepted evidence, which was again not in dispute, that after the constable had searched the bag and found the broken methamphetamine pipe, the constable had carried on with the search. The constable asked Ms Hurring whether she had anything else on her that she wanted to talk about. She said she did not. The constable carried on with the search at which point Ms Hurring handed over a large sum of money in the form of notes which she obtained from her bra. The Judge said that the fact this cash was there was of little relevance given the Police accepted the explanation for having that money, although it did tend to show that on occasions she would store things in her bra area for safe keeping.
[9] Ms Hurring was transported back to the Police station. She was again asked whether or not she had anything she wished to disclose. Ms Hurring patted herself down in the chest area and then pulled out a small snap lock bag of cannabis. Ms Hurring said she did not know where that had come from and did not know it was there. The bag of cannabis was in the same type of small green bag as those located in the black bag that had come from underneath Ms Hurring’s top.
[10] The Judge said he could not accept, having seen and heard Ms Hurring give evidence, that a bag of cannabis could have got into her top without her knowing. He noted that evidence as to her storing money down her bra for safekeeping tied in, to some extent, with Constable Farrell’s evidence that the cannabis in its bag was also secreted in her bra. The Judge inferred, from the circumstances in which that
cannabis was located and disclosed, including the fact that this happened after a number of requests and only in the face of an imminent strip search, that Ms Hurring knew about it and had hidden it where it was because she knew she ought not to have had it.
[11] The Judge was satisfied beyond reasonable doubt that Ms Hurring knew about the cannabis, knew what it was and knew about the methamphetamine pipe and knew what that was. He found she had not only physical possession but the requisite mens rea so as to be criminally liable for possession of these items.
[12] The Judge concluded that Constable Farrell was an honest and reliable witness. He said she had made a statement in relation to the search some weeks later but particularly noted the comment about Ms Hurring saying that it would not be possible for the Police to conduct a search in the absence of a female officer. He said this was something she recalled clearly. He did not accept that this was something she had invented or had got wrong.
[13] On Constable Farrell’s evidence, Ms Hurring had a bag containing the methamphetamine pipe and a small plastic bag containing cannabis under her top. She was not forthcoming as to the bag of cannabis being there as early as she could have been. Solely on the basis of Constable Farrell’s evidence, the Judge had a reasonable basis for concluding that Ms Hurring must have knowingly had in her possession and under her control the belt bag containing the methamphetamine pipe and the snap lock bag containing the cannabis.
[14] The Judge however noted that the essence of Ms Hurring’s defence was that these items had been:8
… foist [sic] upon her in the context of her and her partner’s car being turned over by the police. She was acting in a state of some haste, and possibly panic, and although she accepts she got possession of the relevant items in a physical sense, she never turned her mind to what they might be.
[15] She denied any knowledge that the bag contained a pipe and simply did not know how cannabis contained in a small snap lock bag ended up on her person. On
8 Conviction decision, above n 1, at [8].
being questioned after she had pulled the small black bag out from under her jersey and the constable had heard something break, and after Ms Hurring had been given her rights, she said she was handed it from the two males who had recently jumped in the backseat of the car. The Judge noted the constable had confirmed that, when Ms Hurring was interviewed, she had said repeatedly that it was not her gear, it all happened in a hurry and she was not worried about the bag or the Police stop
because “she did not know there was anything nefarious in the bag”.9
[16] Ms Hurring gave evidence. The Judge noted that she said she and her partner had gone to a bakery in the middle of the night to get a pie because they were hungry. (It appears from the transcript this happened around 1.30 or 2.00 am.) While there, they saw someone they knew and his mate. These people asked for a ride home. Ms Hurring said she and her partner agreed. No more than 40 seconds after leaving the bakery, they were stopped by the Police. After the initial stop, the Police returned to their car and ran some checks. At that point, the two passengers started to panic. She said one of the men then handed her the bag. She understood that it contained some rent money. She said she put it under her jersey. She denied making the comment referred to by the Police constable as to her saying the Police would not search her because there was no female officer present. She said the snap lock bag with the cannabis in it was not under her bra as the constable had said but was located between her t-shirt and a jersey but she did not know how it got there.
Did the Judge err in a material factual finding?
[17] For Ms Hurring, Mr Bailey submitted the Judge made a material error in proceeding on the basis the snap lock bag containing the cannabis had been secreted in Ms Hurring’s bra. He argued that the constable was not clear in her evidence that the cannabis bag had been under Ms Hurring’s bra so that the Judge should not have concluded that the cannabis, on Constable Farrell’s evidence, had been “secreted in
her bra”.10
[18] Constable Farrell, when initially giving evidence, was not specific that the cannabis had come from under the bra. In re-examination she did say that was
where the bag with the cannabis had come from, although somewhat tentatively. Given his acceptance of the constable’s evidence, the Judge could reasonably conclude this was where the bag had come from but, in terms of establishing both possession and knowledge of the possession, the specific finding as to the cannabis being under the bra was not essential to the decision he reached. His conclusions, both as to possession and knowledge, could have been reasonably reached on the basis the bag had been secreted under her top, in the front part of her chest in the top of her clothes. That was where she located it when she patted herself down and, apparently surprised, located the item. In that position, it could not have fallen from her clothes when she took out the bag.
[19] Consistent with that, the Judge had referred to Ms Hurring’s evidence as emphatic “that the little bag of cannabis located in her top area at the Police station was not hers”.11 Later, he referred to her being questioned “about the bag in her top”.12 When deciding what inferences he could reasonably draw from the evidence, he concluded that he could not accept, having seen and heard Ms Hurring give evidence, “that a bag of cannabis can have got into her top without her knowing”.13
[20] I thus conclude that the Judge was entitled to find, on Constable Farrell’s evidence, that the cannabis had been found under Ms Hurring’s bra but that, even if there had been an error in that regard, there would still have been a reasonable basis for his conclusions as to both possession and knowledge. If the bag was secreted under her clothing around the chest area, not spoken of or revealed to the Police until a strip search was imminent, then revealed to be precisely where Ms Hurring was patting herself down, it was reasonable for the Judge to conclude that Ms Hurring knew it was there and knew the bag contained cannabis.
Did the Judge fail to determine the factual basis for his findings?
[21] Mr Bailey next submitted that the Judge made a material error in not reaching any conclusion as to whether Ms Hurring’s explanation, as to how she had the bag
with the methamphetamine pipe handed to her by others, could be true. He argued
11 At [28].
that, without a finding as to that, the Judge could not have reasonably concluded that she knew the bag contained the methamphetamine pipe or the snap lock bag contained the cannabis.
[22] Ms Hurring’s evidence and defence was that she did not know she had the snap lock bag containing cannabis in her possession. The snap lock bag could not have fallen out of the other bag and ended up under her clothing where it did by accident. Once the Judge concluded, as he reasonably could, that this item was under her clothing, separate from the belt bag and revealed in the circumstances which were essentially not in dispute, he had a reasonable basis for concluding that Ms Hurring had possession of it and knowledge of what it was. There would then have been a reasonable basis for concluding that she was guilty of the charge in relation to this item without any finding as to whether the snap lock bag had been handed to her by someone who had been in the backseat. It was thus unnecessary for the Judge to reach any conclusion as to whether her account of what happened was true in relation to that charge.
[23] Mr Bailey argued that it was not open to the Judge to make a finding contrary to Ms Hurring’s evidence that she did not know what was in the belt bag and how it came into her possession, given the Judge did not specifically reject Ms Hurring’s evidence as to how she had received the bag. The Judge found only that she knew of the bag and pipe rather than that they were items that belonged to her. Mr Bailey also argued that the Judge should have accepted Ms Hurring’s evidence when no evidence contrary to her explanation was led.
[24] The charge against Ms Hurring was that she had “in her possession a pipe for the purpose of the commission of an offence against the Misuse of Drugs Act, namely consume methamphetamine”. There was however no issue in this case that this was a pipe that would be used to consume methamphetamine. The Police did not have to prove that Ms Hurring was going to be the person who used the pipe for
that purpose.14
14 Thompson v Police HC Hamilton AP103/06, 21 October 1986 at 5; Moore v Police HC Tauranga
AP11/01, 23 August 2001 at [26]-[27].
[25] Once it was established, on a reasonable evidential basis, that Ms Hurring knew she had possession of the bag and knew it contained a methamphetamine pipe, there was a sufficient evidential basis for the Judge to conclude that she had committed the offence charged in relation to that item. It would not have mattered whether the bag had originally been owned by or in possession of one of the passengers or whether it had always been in Ms Hurring’s ownership or possession. The Judge thus did not have to determine whether her explanation as to how she came to have possession of that belt bag could be accepted. For the same reason, he did not have to determine who the owner of the bag or pipe was. For Ms Hurring to be guilty of the charge faced, the Police had to prove Ms Hurring had the belt bag and the methamphetamine pipe in her possession and she knew she did. The Judge dealt with the charge on that basis.
[26] The Judge said the critical issue was whether he accepted as reasonably possible Ms Hurring’s contention that she was an innocent person in all that happened and that the two gentlemen in the back of her car essentially, through their actions, have landed her in trouble. Given the conclusions he reached, he clearly rejected Ms Hurring’s contention.
[27] In her evidence in chief, Ms Hurring said that, after their vehicle had been stopped and the Police had returned to their vehicle, the boys in the back started panicking and one of them said he had his partner’s money and had asked her to take the money and the bag. Ms Hurring said she took the bag because it had his partner’s money but, in that context, she also said she could clearly smell cannabis in the car. She also said she took the bag but did not “think anything of it at the time”, that she was quite sick and tired at the time but also she grabbed the bag on the understanding it was money. There were inconsistencies in that evidence.
[28] This account was also inconsistent with statements she made later to the Police that the passenger had told her the money was his partner’s rent money and had no connection with cannabis or any other drugs. Had he said that, there would have been no reason for the passenger to be panicking and wanting to get the belt bag out of his possession.
[29] Under cross-examination, Ms Hurring initially denied that when interviewed she had told the Police that she had taken the bag because the passenger said he had warrants for his arrest. Later, when that part of the statement was put to her, she accepted she may have told the Police this.
[30] In describing what happened in her evidence, she said one of the passengers passed her the bag. Having repeated that several times, she said it was placed in her lap and “sort of thrown over”. She also said that it was the passenger who she had not known previously who had passed the bag to her in this way but acknowledged that in her interview she said she had not known which of the passengers had passed her the bag. She also then said under cross-examination that, while she was uncertain whether the person passing her the bag had warrants for his arrest, all she could remember was that “it was rent money in the bag and could [she] hold it for his partner”. After it was put to her that she had said nothing to the Police about the money in the bag being rent money, she again said she had been very sick at the time. There was no evidence she had said anything to the Police about being sick when she was questioned.
[31] In her evidence, Ms Hurring described in some detail how she did not know whether any of the Police officers involved in the initial stop was a woman. It was only when the officer told them they were getting more officers to assist, including a female officer to come and search her, that she knew there had been no female officer present when they were initially stopped. The Judge must have found her to be either dishonest or unreliable as to that evidence, given his acceptance of the constable’s evidence that Ms Hurring had told her that she had offered to take the items because, with no female being present, the Police would not search her.
[32] Under cross-examination, it was suggested to her the pipe was still in the bag when it smashed. Ms Hurring denied this and said it fell out of the bag, obviously because the zip was open. She also said it would not have smashed because it was a padded belt bag. In answer to questions from the Judge as to how she knew this, she said she had noticed that it was that sort of bag when it was on the ground.
[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”.15 On my reading of the evidence, that 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 the pipe in it could be rejected. The Judge could then consider just what had been established on the constable’s evidence and whether he could draw the
inferences required to find the charges proven.
[34] There did not have to be contradictory evidence from other witnesses for the
Judge to reject Ms Hurring’s explanation.
Did the Judge err in his assessment of the evidence?
[35] Mr Bailey argued that the Judge had made errors in his consideration of the evidence in a number of ways. He argued that greater significance should have been given to the fact the only evidence of a fingerprint was that of one of the backseat passengers. It had been found on a snap lock bag found in the belt bag, a snap lock bag similar to the one which contained cannabis and which had been under Ms Hurring’s top. He argued the fingerprint evidence strongly supported the contention the cannabis and the belt bag belonged to the backseat passenger. He submitted this evidence was consistent with Ms Hurring’s evidence of how she came to have the bag. He said it was also significant that her fingerprints were not found on any of the bags.
[36] I do not consider that, on that basis, the Judge’s decision could be held to be unreasonable. The Police had to prove possession of the bag with knowledge of what was in it. Ms Hurring’s fingerprints were not found on the snap lock bag containing cannabis that had been under her clothing, around her chest and separate from the belt bag. She clearly had possession of that item so it was possible for her to be in possession of such an item without there being evidence that her fingerprints
were on the bag.
15 Conviction decision, above n 1, at [35].
[37] There was no dispute she had put the belt bag under her clothing without leaving any evidence of her fingerprints on that bag or the items within it. Ms Hurring could still have been in possession of both the snap lock bag and the belt bag with knowledge of the cannabis and the methamphetamine pipe even if those items had been owned by or in the possession of one of the passengers from the backseat and even if there was no evidence of her fingerprints on such items. That was especially so, given the Judge’s acceptance that she had offered to take the items because she had thought she would not be searched in the absence of a female Police officer.
[38] Mr Bailey also argued that the Judge failed to give adequate weight to evidence from the constable that Ms Hurring “looked surprised” when she pulled out the bag of cannabis at the Police station just prior to being searched. He argued that look of surprise was consistent with her having been unaware the cannabis bag was on her person. I do not consider this was a matter which should have been given more weight. Given the inconsistencies in Ms Hurring’s evidence and the way in which the Judge had reasonably found her evidence to be implausible, it would have been open to him to find that her “surprise” at finding the bag of cannabis was contrived.
[39] It is accepted now that the demeanour of a witness giving evidence at trial may not be a good indicator as to the truth of his or her evidence. Likewise, just how someone suspected of a criminal offence acts or seems when first approached or interviewed by Police may not be a reliable indicator of their guilt or innocence as to the matters being investigated.
[40] Mr Bailey also argued that it was inherently unlikely that a cannabis bag would have been kept separate from all the other bags. I do not accept that is so. It is inherently unlikely that a snap lock bag containing cannabis would have somehow come out of the belt bag and travelled under the clothing to a point where it was in the vicinity of her chest. It is much more likely that the belt bag and the snap lock bag containing the cannabis were put under Ms Hurring’s clothing separately. The Judge did not have to decide just how that happened.
Did the Judge fail to find both elements of the s 13(1)(a) charge established?
[41] Mr Bailey’s final argument was that it was not sufficient for the Judge to conclude simply that Ms Hurring knew the methamphetamine pipe was in the bag. He argued the Judge had failed to consider another important element of the charge, namely whether she had possession of it for the purpose of consuming methamphetamine as alleged in the charging document.
[42] The charging document could be said to be somewhat ambiguous as to whether the charge was laid simply on the basis the pipe was a pipe for the purpose of consuming methamphetamine or whether Ms Hurring had it for that purpose. The offence is, however, committed if someone has possession of an item which had been or was going to be used by anyone for the purpose of committing an offence against the Misuse of Drugs Act, in this instance consuming methamphetamine.16
There was no dispute on the evidence that the glass pipe which broke was of that
sort. That essential element of the charge had thus been proved.
[43] Ms Hurring’s evidence was that she did not know the methamphetamine pipe was in the belt bag and that neither she nor anyone else was going to be using the pipe.
[44] In Thompson v Police, one of the grounds of appeal against conviction was that the Crown had failed to establish the element of intent to commit the offence.17
The Crown submitted that this was a factual issue for the District Court Judge, who was entitled to draw the inference from the whole of the evidence that the possession of the syringe and needle was for the purposes of the commission of an offence against the Act, either by the appellant or by someone else.18 The Crown submitted that it was a matter for the assessment of credibility by the District Court Judge, who
was entitled to refuse to accept the explanation given by the appellant to Police. The
16 Thompson v Police, above n 14; Moore v Police, above n 14; R v Jones [2008] NZCA 187 at [59], in which the Court of Appeal expanded the temporal scope of purpose under s 13(1)(a), without addressing the commission of offences by persons other than the possessor.
17 Thompson v Police, above n 14. This case was decided prior to the amendment of s 3 Misuse of Drugs Amendment Act (No 2) 1987, which severed possession of a needle or syringe from possession of a pipe or other utensil. These were originally in the same offence provision of the Act..
18 At 5.
appellant had offered no innocent explanation as to why she was in possession of a syringe and needle, thus the inference could only be that they were being carried for the use of a controlled drug.
[45] Having regard to the evidence as a whole, Doogue J was satisfied that it was open to the District Court Judge to find as he did, and he could not say that the Judge was not warranted in entering a conviction or at least that his mind should have been left in a state of reasonable doubt.19 The appeal against conviction was dismissed.
[46] In Moore v Police, Randerson J summarised principles of interpretation and application of s 12A(2)(a) of the Act.20 This section prohibits possession of equipment or material capable of being used in or for the commission of an offence against ss 6(1)(b) or 9 of the Act with the intention that the equipment be used in or for the commission of such offending.
[47] Regarding intent, his Honour drew an analogy with the interpretation of s
13(1)(a) in Thompson v Police:21
A person intends that the equipment or material be used in or for the specified offences if he or she means that to occur. Or to put it another way, the use of the equipment or material in or for those offences is the object which that person has in view and intends to be carried out: see by analogy Thompson v Police (1986) 2 CRNZ 274 with reference to s 13(1)(a) of the Misuse of Drugs Act 1975 which refers to persons having possession of certain items “for the purpose of the commission of an offence under the Act”.
[48] The main issue in the appeal against conviction was whether it was open on the evidence for the Judge to infer that the appellant intended that the equipment be used for the manufacture of methamphetamine by himself, by his friend who had entrusted the equipment to him, or both of them.22 Randerson J was satisfied there was ample evidence upon which the Judge could draw that inference.
[49] By analogy with s 13(1)(c), the purpose threshold may be satisfied if someone other than the defendant had used or was going to use the pipe to consume
19 At 6.
20 Moore v Police, above n 14, at [25].
21 At [25(e)].
22 At [26]-[27].
methamphetamine, and the defendant meant that to occur. 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. There had not been any issue over that at the hearing before the District Court Judge. Had Ms Hurring not been searched and had the Police not taken the belt bag and the pipe, that is how it would have been used.
Conclusion
[50] I have considered all the evidence adduced at the hearing. I find there was no error or irregularity which created a risk that the outcome of the trial was affected. I consider that there was a reasonable basis for the Judge concluding the charges had been proven. The appeals against conviction are thus dismissed. That being the case, there is no need for me to consider further the appeals against sentence. Those appeals are also dismissed.
[51] As her community-based sentence resumes upon dismissal of these appeals, Ms Hurring is to present herself to the Probation Service within 48 hours of judgment to commence her community work.23
Solicitors:
Andrew Bailey, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.
23 Criminal Procedure Act 2011, ss 345 and 347.