M v Police HC Dunedin Cri-2009-412-6

[2009] NZHC 502

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2009-412-000006

M

v

POLICE

Hearing:         6 May 2009

Appearances: Appellant in person

R Smith for Respondent

Judgment:      6 May 2009

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction and sentence.

[2]       The appellant, Mr M  , was convicted in the District Court on a charge of possession of cannabis following a defended hearing.   He was convicted, and fined $250 and Court costs of $130.

[3]      At the hearing in the District Court, Mr M   represented himself.

[4]        The Crown called one witness, Sergeant Mapp.  He testified that on 28 July

2008 he attended at the appellant’s address to serve him with a notice under the

Harassment Act.

M V POLICE HC DUN CRI-2009-412-000006  6 May 2009

[5]      There  was  a  strong  smell  of  cannabis  coming  from  the  garage.    When Sergeant Mapp asked the appellant about the smell, he said the appellant stated he had just consumed a joint.  The Sergeant then invoked his powers under s18(2) of the Misuse of Drugs Act 1975 and searched the garage, where he located 2 grams of dried  cannabis.    According  to  the  testimony  of  Sergeant  Mapp,  the  appellant admitted to him that it was his, and said it was for his health.

[6]      The  appellant  cross-examined  the  sergeant.     The  thrust  of  his  cross- examination was that the police were out to make him look bad and to protect his estranged wife.

[7]      The  appellant  gave  evidence  himself,  and  during  cross-examination  was asked, “Is it possible that just prior to the officers arriving you had been smoking cannabis.”   He replied “It is possible that under medical advice that I may have smoked cannabis.”  When asked whether it was his cannabis, the appellant replied:

That’s a hard question to answer, there’s, I mean, was it cannabis that I may have been using?  It might have been.

[8]      Further, when asked “… was it in your possession… prior to Sergeant Mapp finding it?” the appellant stated, “Look, I'm a pretty honest person.  Yes, it probably was.”

[9]      The Judge found the charge was proved, advising the appellant that what he had had to say in Court did not amount to a defence.  The Judge did not condone the use of cannabis for self-medication purposes.  However, because the appellant was a first offender, and because the Judge accepted there was a background of serious health issues lurking in the recent past, he fined him $250 and Court costs of $130.

Grounds of appeal

[10]     Mr M    raised a number of grounds of appeal, as follows:

(1) That the Judge wrongly declined his application for an adjournment. (2) That the prosecution witness, Sergeant Mapp, lied under oath.

(3)The harassment notice that the police officers delivered contained several significant errors.

(4)The police are attempting to defame him and pervert the course of justice.

(5)The police are refusing to take statements from him about attempts made by his estranged wife on his life.

[11]     Mr M   also sought leave to call evidence from his lawyer to confirm that the police had come that day to take Mr M   into  “mental health”, as well as an order requiring the police to disclose its file about the attempts on his life.  I was informed that these issues were also raised with the District Court Judge and were the basis for the application for an adjournment which the Judge refused.

[12]     During the course of the hearing before me,  I asked Mr M   about the admissions he is recorded as having made during his evidence. He did not dispute the accuracy of the transcript nor the truth of the admissions, saying he tried to be honest.

[13]     Mr M   also confirmed that although the appeal was expressed to be against both appeal and sentence, it was the conviction that was the real concern. He was “not bothered” about the sentence.

The court’s ruling

[14]     There is no doubting Mr M  ’s honesty and the sincerity of his beliefs.

[15]     However, what the District Court had to decide was  whether  or  not  the elements of the offence with which Mr M   had been charged (namely possession  of  cannabis)  were proved  beyond  reasonable  doubt.    In  light  of  Mr M  ’s own admissions, the charge was undoubtedly proved and the Judge was undoubtedly correct in so finding.

[16]     The matters raised by Mr M   and about which he wished to call further evidence are irrelevant to the issues before the Court.   Mr M   told me he has made a complaint to the Police Complaints Authority and that would seem to be the appropriate forum to deal with the various matters he has raised.

[17]     I am satisfied that none of the matters advanced can constitute grounds for an appeal.    The  Judge’s  decision  on  conviction  was  correct  and  the  sentence  was lenient.

[18]     The appeal is accordingly dismissed.

Solicitors:

Crown Solicitor, Dunedin

Copy to Appellant