Kerr v The Queen - [2012] NZCA 121

IN THE COURT OF APPEAL OF NEW ZEALAND

CA628/2011
[2012] NZCA 121

BETWEEN IAN ROBERT KERR
Appellant

AND THE QUEEN
Respondent

Hearing: 13 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: R J Bowden for Appellant
K A L Bicknell for Respondent

Judgment: 29 March 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

The short point that arises on this appeal is whether the term “knowing” in s 12A(1) of the Misuse of Drugs Act 1975 has an equivalent meaning to “believing”.
Mr Kerr was a shop assistant at a retail gardening outlet “Switched On Gardener” in Whangarei. He was convicted following a jury trial on one count of supplying equipment or material capable of being used to cultivate cannabis, knowing that it was to be so used.
The charge arose from a visit by an undercover officer to Switched On Gardener. The undercover officer spoke to Mr Kerr. The officer had been fitted with a covert recording device. He made various statements to Mr Kerr about what he wanted to do with the items he was seeking to purchase. The jury must have concluded that the discussion indicated an intention to grow cannabis on the part of the undercover officer and to buy and use items from Switched On Gardener for that purpose. The officer ultimately purchased a 400 watt lamp, a fan and carbon filter, three metres of ducting, three metres of Mylar silver foil and a digital timer. He paid $809 for this equipment. The officer returned to the shop on a second occasion again wearing a recording device and purchased further items on the same basis.
Prior to the Judge’s summing up, the issue arose of how the Judge should direct on the question of Mr Kerr’s knowledge of the purpose of the purchase. The trial Judge, Judge de Ridder, summed up on the basis that in terms of knowledge, the issue was whether Mr Kerr “believed” at the time that he supplied the equipment that it was to be used for growing cannabis. It is this direction which Mr Bowden for Mr Kerr submits was a misdirection as to the law.
Section 12A(1) provides:
12A Equipment, material, and substances used in production or cultivation of controlled drugs
(1)Every person commits an offence against this Act who supplies, produces, or manufactures—
(a)any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or
(b) any precursor substance—
knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.
(Emphasis added).

The Judge’s summing up

It was common ground between counsel that there are three elements to the charge of supplying material or equipment. First, the jury has to be sure that the accused supplied the material. The second in this case was that the jury…

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 Kerr v The Queen

Details

AGLC: Kerr v The Queen [2012] NZCA 121
Case: [2012] NZCA 121
Decision Date: 29 March 2012

CaseChat Overview and Summary

Ian Robert Kerr appealed against his conviction and sentence for supplying equipment or material capable of being used to cultivate cannabis, knowing that it was to be so used. The conviction arose from an undercover operation by a police officer who visited Kerr's store, Switched On Gardener, where he made statements indicating his intention to grow cannabis using the purchased items. The central issue in the appeal was whether the term "knowing" in section 12A(1) of the Misuse of Drugs Act 1975 should be interpreted as having an equivalent meaning to "believing." The trial judge directed the jury to consider whether Kerr "believed" at the time of the supply that the equipment was to be used for growing cannabis, a direction which Kerr's counsel argued was legally incorrect.

The Court of Appeal considered the meaning of "knowing" in the context of section 12A(1). They reviewed the legislative intent behind the provision, which was to extend liability for preparatory acts related to drug offenses, regardless of whether the intended use of the supplied items actually occurred. The court highlighted the distinction between "knowing" in section 12A(1) and "intention" in section 12A(2), noting that the former concerns the supplier's awareness of the intended use, while the latter pertains to the offender's intention at the time of possession. The court referenced previous cases, including R v Irwin, which held that "knowing" can mean "believing" when a person is aware of a state of affairs, even if the actual intended use does not occur.

The court concluded that the trial judge's direction to the jury was correct in equating "knowing" with "believing" for the purposes of section 12A(1). The prosecution needed to prove that Kerr believed the equipment would be used for growing cannabis, and the trial judge properly instructed the jury on this point. The court rejected Kerr's argument that the prosecution needed to prove the actual intention of the undercover officer. The appeal was dismissed, and Kerr's conviction and sentence were upheld.

Orders