McPherson v Police
[2013] NZHC 1960
•6 August 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2013-488-19 [2013] NZHC 1960
BETWEEN ROBERT IVAN MCPHERSON Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 6 August 2013 Appearances:
Appellant in person
M A Jarman-Taylor and C Gisler for Respondent
Judgment:
6 August 2013
JUDGMENT OF ELLIS J [on appeal against forfeiture]
This judgment was delivered by me on 6 August 2013 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Crown Solicitor, Whangarei
Copy to: Appellant
MCPHERSON v NZ POLICE [2013] NZHC 1960 [6 August 2013]
[1] Mr McPherson appeals against a forfeiture order made in the Kaikohe District Court following his convictions for cultivating cannabis and possession of cannabis for supply.1 The forfeiture order relates to $6000 cash which was found at the scene of the offending, Mr McPherson’s home. Forfeiture of that sum was sought by the Police under s 32 of the Misuse of Drugs Act 1975. The relevant part of s 32 states:
(3) If, on the conviction of any person for an offence against section 6 of this Act, the ... District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the ... District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.
[emphasis added]
[2] For reasons that will shortly become obvious it is not necessary to recite the facts of the matter or to analyse the learned District Court Judge’s decision. That is because the Crown now accepts that the causal nexus required by s 32 - between the money forfeited and the offending for which Mr McPherson was convicted - is missing. Put simply, Mr McPherson’s convictions relate to cultivation and possession for supply. Neither of those offences is predicated on actual sale or supply.
[3] On that basis, and as R v Bishop makes clear, it is not possible to be satisfied that the cash found at Mr McPherson’s home on the relevant day was received by Mr McPherson in the course of or consequent upon the relevant offending.2 And given the Crown (quite properly) did not seek to advance a “float” argument of the kind foreshadowed by the Court in Bishop it also cannot be concluded that the cash was in Mr McPherson’s possession for the purpose of facilitating the commission of that
offending.
1 R v McPherson DC Kaikohe CRI-012-027-001165, 1 March 2013.
2 R v Bishop [2010] NZCA 66.
[4] Although I have little doubt that the money ordered forfeit by the District
Court was cannabis related, I have no choice but to allow Mr McPherson’s appeal.
The forfeiture order made by the District Court is quashed accordingly.
Rebecca Ellis J