Mesman v The King - [2023] NZSC 25

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 105/2022
[2023] NZSC 25

BETWEEN	TE ATA PATRICIA MESMAN Applicant
AND	THE KING Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	A J Bailey and R J T George for Applicant I S Auld for Respondent
Judgment:	23 March 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Ms Mesman pleaded guilty in the District Court to attempting to possess methamphetamine for supply. She was sentenced to 12 months intensive supervision with rehabilitation related conditions.[1] Despite her plea, she appealed (unsuccessfully) against conviction to the Court of Appeal and now seeks leave to appeal to this Court.[2]
[1]R v Mesman [2022] NZDC 10275 (Judge J A Farish).
[2]Mesman v R [2022] NZCA 418 (Cooper P, Mallon and Wylie JJ) [CA judgment].
The applicant argued in the Court of Appeal (and proposes to do the same in this Court) that it is not possible to attempt possession. The question raised is therefore whether attempted possession of methamphetamine for supply is an offence known to New Zealand law.

Factual background

Ms Mesman rented a motel unit and engaged a courier company to deliver a package to that unit. The package contained 7.2 grams of methamphetamine. It was intercepted by the police following a tip-off from the courier company. Ms Mesman said to the police executing a search warrant on the unit that she had bought the methamphetamine from a friend and intended to use some of it and on-sell the remainder.

Relevant provisions

Section 6 of the Misuse of Drugs Act 1975 makes it an offence to have methamphetamine in one’s possession for the purpose of supply. Section 72 of the Crimes Act 1961 deals with attempts generally and relevantly provides:
(1)Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
...
(3)An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
The applicant argues that possession is a status not an act or omission; and a status cannot be attempted. The applicant relies on the 1975 decision of Mahon J in R v Grant.[3] In R v Willoughby, decided five years later, Speight J took the opposite view.[4]
[3]See R v Grant [1975] 2 NZLR 165 (SC) at 168–169.
[4]R v Willoughby [1980] 1 NZLR 66 (SC) at 68.
In Ms Mesman’s appeal, the Court of Appeal held Grant was wrongly decided, and that Willoughby is correct.[5] The Court reasoned as follows:[6]

[22] Parliament, in the Misuse of Drugs Act, has made it an offence for a person…

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 Mesman v The King

Details

AGLC: Mesman v The King [2023] NZSC 25
Case: [2023] NZSC 25
Decision Date: 23 March 2023

CaseChat Overview and Summary

In Mesman v The King, the applicant, Te Ata Patricia Mesman, sought leave to appeal against her conviction for attempting to possess methamphetamine for supply. The District Court found her guilty and sentenced her to 12 months of intensive supervision with rehabilitation conditions. The Court of Appeal had already dismissed her appeal against the conviction, and now, she sought leave to appeal to the Supreme Court of New Zealand. Mesman argued that it was not possible to attempt possession, which raised the question of whether attempted possession of methamphetamine for supply is an offence under New Zealand law.

The legal issue before the Court was whether attempted possession of a controlled drug for supply constitutes an offence under the Misuse of Drugs Act 1975 and the Crimes Act 1961. Mesman contended that possession is a status and cannot be attempted, relying on the earlier decision of Mahon J in R v Grant. However, the Court of Appeal had already rejected this argument, aligning itself with Speight J's decision in R v Willoughby. The Court of Appeal held that attempted possession is an offence as it aligns with the purpose of the Misuse of Drugs Act to prevent drug misuse.

The Supreme Court found that while the application raised a potential question of general or public importance, there were insufficient prospects of success to warrant granting leave to appeal. The Court noted that the statutory provisions were clear and consistent with the purpose of the Misuse of Drugs Act. The Court concluded that there was no risk of a miscarriage of justice if leave to appeal was not granted.

The Supreme Court dismissed the application for leave to appeal, affirming the Court of Appeal's decision that attempted possession of methamphetamine for supply is an offence under New Zealand law.

Orders