McPherson v Police

[2013] NZHC 1960

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