On 22 December 2021, the appellant, Te Ata Mesman, was convicted of attempting to possess the Class A controlled drug methamphetamine for the purpose of supply, contrary to s 6(1)(f) and (2) of the Misuse of Drugs Act 1975 and ss 72 and 311(1) of the Crimes Act 1961.
Ms Mesman had earlier applied under s 147 of the Criminal Procedure Act 2011 for the charge to be dismissed.[1] She argued that it is not possible at law to attempt to possess a substance. This argument failed before Judge M J Callaghan in the District Court at Christchurch. He held that the offence is recognised in this country.[2] Ms Mesman then entered a guilty plea to the charge. She was sentenced in relation to the charge (and other drug and driving-related charges) by Judge Farish on 1 June 2022.[3] The sentence imposed was 12 months’ intensive supervision with a range of conditions intended to help Ms Mesman address the underlying causes of her offending and to provide for her rehabilitation.[4]
[1]R v Mesman [2021] NZDC 19314.
[2]At [24].
[3]R v Mesman [2022] NZDC 10275.
[4]At [14].
Notwithstanding her guilty plea, Ms Mesman appeals her conviction. She contends that attempting to possess a controlled drug for the purpose of supply is not an offence under New Zealand law. The appeal is opposed by the Crown.

Relevant facts

On 23 April 2020, Ms Mesman engaged a courier company. She arranged to have a package delivered to her at a motel unit in Christchurch. She provided her name, phone number, email address and debit card information to the courier company. She had rented the motel unit the previous day for a number of days. She had paid for the accommodation in advance.
Staff employed by the courier company inspected the package. They found a snaplock bag containing translucent crystals. The package was taken to the police. The crystals were analysed. They were found to be methamphetamine. The snaplock bag contained 7.2 g of the drug.
On the afternoon of 24 April and on 25 April 2020, Ms Mesman telephoned, emailed and sent text messages to the courier company demanding delivery of the package. She asserted that the package contained urgent cancer medication.
The police executed a search warrant on the motel unit on 26 April 2020. Ms Mesman was present. She said that she had bought the methamphetamine from a friend and that she intended to use some of it herself and on-sell the remainder.

The appeal

The appeal is brought pursuant to s 229(1)…

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 the Queen

Details

AGLC: Mesman v The the Queen [2022] NZCA 418
Case: [2022] NZCA 418
Decision Date: 7 September 2022 at 4 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently heard an appeal brought by Te Ata Mesman against her conviction of attempting to possess the Class A controlled drug methamphetamine for the purpose of supply. Mesman argued that it is not possible at law to attempt to possess a substance, and that therefore, her conviction was flawed. The appeal was opposed by the Crown. The court considered whether an offence of attempted possession of a controlled drug for the purpose of supply is recognised in New Zealand law. The court concluded that such an offence is recognised and found that Mesman's conviction was properly laid. The appeal was dismissed.

The Court of Appeal held that Parliament, in the Misuse of Drugs Act, has made it an offence for a person to have any controlled drug in his or her possession for any one or more of a number of proscribed purposes. Having a drug in one’s possession for a proscribed purpose is a state of affairs. It is also an offence. A person who intends to bring about this state of affairs and commit this offence, and to that end does or omits an act for the purpose of accomplishing this object, also commits an offence under s 72 of the Crimes Act. The section criminalises attempts to commit any offence, whether under the Crimes Act or any other enactment. The plain wording of s 72 makes it an offence to attempt to possess a controlled drug if the person who makes the attempt intends to take or assume possession of the drug for one or more of the purposes proscribed by s 6(1)(f) of the Misuse of Drugs Act and undertakes or omits an act to accomplish this purpose or those purposes, provided the act done or omitted was sufficient in law to amount to an attempt (s 72(2) and (3)). The statutory provisions are clear on their face and it is not necessary to strain their interpretation to reach this view.

The view the Court of Appeal took is also consistent with the way in which the same issue has been approached in various overseas jurisdictions. Each case of course falls to be determined by reference to the applicable statutory provisions in issue. It is, in the Court of Appeal's view, clear from s 6 of the Misuse of Drugs Act and s 72 of the Crimes Act that there is an offence of attempted possession of a controlled drug for the purpose of supply in this country. The charge was properly laid and Mesman's plea cannot be impugned.

The appeal was dismissed.

Orders