McCaskill v Police - [2012] NZHC 2941

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-62 [2012] NZHC 2941

EVELYN VERA MCCASKILL
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 7 November 2012

Counsel: Appellant in person
J Tarrant for Respondent

Judgment: 7 November 2012

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal out of time
and on appeal against conviction and sentence]

EVELYN VERA MCCASKILL V NEW ZEALAND POLICE HC HAM CRI-2012-419-62 [7 November 2012]

[1] On 15 February 2012, the police executed a search warrant at Ms McCaskill’s home address. When they searched the property they found two cannabis pipes, two spotting knives and a number of cannabis bullets. As a result of an interview that they conducted with Ms McCaskill, they charged her with being in possession of those items. So far as the cannabis was concerned, the police laid both a charge of possession for supply and a charge of possession simpliciter.

[2] Ms McCaskill pleaded not guilty to the charges, and on 21 May 2012 she attended a status hearing before Judge Burnett. She was represented at that hearing by a Hamilton solicitor, Mr Bates. At Mr Bates’ request, the Judge gave a sentence indication. She indicated that if a guilty plea was entered on that day, the sentence would be nine months supervision and 180 hours community work. Based on the sentence indication, Mr Bates entered a plea of guilty on Ms McCaskill’s behalf on all charges. The Judge then sentenced Ms McCaskill in accordance with the
indication.[1]

[1] Police v McCaskill DC Thames CRI-2012-075-150, 21 May 2012.

[3] Ms McCaskill now seeks leave to appeal out of time in respect of both conviction and sentence.

Ground of appeal

[4] Ms McCaskill says that she has always maintained that she was not guilty of the charge of being in possession of cannabis for supply. She says she understood that the sentence indication and the guilty plea related only to the charge of being in possession of cannabis for her own use, and not the charge of being in possession of cannabis for supply. She also refers me to a letter dated 8 March 2012 that she sent to the Registrar at the Thames District Court. This makes it clear that she intended to plead guilty to all charges other than the charge of being in possession of cannabis for supply. She indicated in the letter that she proposed to enter a plea of not guilty
to that charge.

[5] Ms McCaskill says that that remained her intention throughout, and that she never intended to instruct Mr Bates to enter a guilty plea to the charge of being in possession of cannabis for supply.

[6] This morning I have had the benefit of hearing evidence from both Mr Bates and Ms McCaskill. I am satisfied from Mr Bates’ evidence that he did his level best to ensure that Ms McCaskill knew exactly what was occurring during the status hearing. I am left, however, in a significant doubt as to…

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 McCaskill v Police

Details

AGLC: McCaskill v Police [2012] NZHC 2941
Case: [2012] NZHC 2941
Decision Date: 7 November 2012

CaseChat Overview and Summary

The case of McCaskill v Police involves Ms Evelyn Vera McCaskill, who was charged and subsequently convicted by the District Court of being in possession of cannabis for supply and possession simpliciter. The New Zealand Police were the respondents in this case, which was heard in the High Court of New Zealand at Hamilton. Ms McCaskill sought leave to appeal out of time and against her conviction and sentence. The central legal issue in this case was whether Ms McCaskill understood that her guilty plea related to both charges or only the charge of possession simpliciter. Ms McCaskill argued that she had always maintained her innocence regarding the charge of possession for supply and only intended to plead guilty to the charge of possession simpliciter. The Court found that there was a significant doubt as to whether Ms McCaskill understood that she was pleading guilty to the charge of possession for supply. The Court was satisfied that Ms McCaskill had an arguable defence to the charge of possession for supply, as she had explained to the police that she and others in her area purchased cannabis together on a bulk basis and then divided it among themselves. The Court concluded that a miscarriage of justice had occurred and granted leave to appeal out of time and allowed the appeal against conviction on the charge of possession for supply. The Court also quashed the sentence imposed on all charges and remitted the charge of possession for supply to the District Court for re-hearing.

Orders