Martin v Police

[2013] NZHC 2376

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0034 [2013] NZHC 2376

BETWEEN  PETER JAMES MARTIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   11 September 2013

Counsel:                  Self-represented Appellant

R B Annandale for Respondent

Judgment:                11 September 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 11 September 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Almao Douch, Crown Solicitor, Hamilton

Copy for:           P J Martin, Hamilton

MARTIN v POLICE [2013] NZHC 2376 [11 September 2013]

Introduction

[1]      Mr Martin appeals his conviction in the District Court at Hamilton on 6 June

2013 on a charge of cultivation of cannabis.  Cultivation of cannabis is an offence pursuant to s 9(1) Misuse of Drugs Act 1975 (“Act”).   Mr Martin defended the charge.

[2]      The matter came before Judge M L F S Burnett.  The Judge heard evidence and,  it  appears  from  the  Judge’s  judgment,  submissions  from  Mr Martin  as  to jurisdiction.    Essentially,  Mr Martin  submitted  that  he  was  not  subject  to  the jurisdiction of the Court for several reasons.

[3]      The Judge reviewed the evidence which had been given and found that the elements of the charge were proved beyond reasonable doubt.   She dismissed the challenges to the Court’s jurisdiction and entered a conviction.  The Judge sentenced Mr Martin to 130 hours of community work.

[4]      Mr Martin appeals against conviction, again on grounds which  go to the

Court’s jurisdiction.

[5]      Mr Martin’s appeal was called at 10 am.   He did not appear at that time. Having waited for five minutes, having had the matter called twice, and on the application of Crown counsel, I dismissed the appeal.  Shortly after that, Mr Martin appeared and explained that he had been detained by the security guards at the Court. Without  objection  from  Crown  counsel,  I  recalled  my  earlier  order  and  heard Mr Martin’s appeal.

Appeal

[6]      Mr Martin’s principal submissions were as follows.

[7]      The first is that he is not a “person” for the purposes of s 9(1) of the Act. Section 9(1) provides as follows:

9        Cultivation of prohibited plants

(1)       Except  pursuant  to  a  licence  under  this  Act,  or  as  otherwise permitted by regulations made under this Act, no person shall cultivate any prohibited plant.

[8] In support of this argument, Mr Martin referred me to s 29 of the

Interpretation Act 1999 (“Interpretation Act”), which defines “person” as:

person includes a corporation sole, a body corporate, and an unincorporated body.

[9] I accept the submission of Crown counsel that Mr Martin is a “person” for the purposes of s 9(1) of the Act. The definition in s 29 of the Interpretation Act is inclusive. It does not preclude a human being as a “person” for the purposes of s 9(1) of the Act.

[10]     Mr  Martin’s  second  submission  was  that  High  Court  Rules,  r 5.49  was relevant and applied before the District Court and now on appeal.

[11]     Rule 5.49 provides as follows:

5.49     Appearance and objection to jurisdiction

(1)       A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement  of  defence  and instead  of  so  doing,  file and  serve  an appearance stating the defendant's objection and the grounds for it.

...

[12]     I am satisfied that rule 5.49 was irrelevant to the matter before the Judge and to Mr Martin’s case on appeal.   Rule 5.49 applies in civil proceedings before the High Court.  It has no application to proceedings under the Act in the District Court.

[13]     Mr Martin’s third submission was that cannabis should not be considered an illegal substance.  That is not an argument that I am able to entertain.  The fact is that cannabis is a “prohibited plant” for the purposes of s 9(1) of the Act.

Result

[14]     Having  heard  from  Mr Martin  and  Crown  counsel,  I  am  satisfied  that Mr Martin was and is subject to s 9(1) of the Act and to the jurisdiction of the District Court in respect of the offending alleged.   I dismiss his appeal against conviction accordingly.

..................................................................

M Peters J