Papps v The King - [2023] NZCA 352

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA384/2022
[2023] NZCA 352

BETWEEN	GREGORY ROGER PAPPS Appellant
AND	THE KING Respondent

Hearing:	19 July 2023
Court:	Gilbert, Lang and Woolford JJ
Counsel:	Appellant in person B J Thompson for Respondent
Judgment:	9 August 2023 at 9.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is allowed to the extent that the convictions on charges 10 and 11 are set aside. We direct that a judgment of acquittal be entered on these charges.
BThe appeal against conviction on the remaining charges is dismissed.
CThe appeal against sentence is allowed to the extent that the sentence of seven months’ home detention is set aside and a sentence of five months’ home detention is substituted.
DThe sentence of community work remains intact.
E The appellant must report to a probation officer on 25 August 2023 and the sentence of home detention will resume on that date on the conditions set out at [73] below.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Papps was found guilty by a jury in the District Court on seven charges of being in possession of items with the intention of using them for manufacturing methamphetamine and pleaded guilty to one charge of being in possession of utensils for the purpose of consuming methamphetamine. On 29 July 2022 Judge W Lawson sentenced Mr Papps to seven months home detention and 100 hours community work.[1] Mr Papps appeals against both conviction and sentence.

Factual background

[1]R v Papps [2022] NZDC 14632 [Sentencing notes] at [14].

The charges were laid after the police executed a search warrant at Mr Papps’ address on 12 April 2019. When they entered the property, they found a garage that was secured with a lock. Security cameras had been installed on the exterior of the address.
When the police entered the garage they found another security camera, although this did not have the ability to record events within the garage. Scattered in different areas of the garage they also found items of equipment that they believed were consistent with having been used for the manufacture of methamphetamine. In addition, they found materials that could be used in the manufacture of methamphetamine. These included iodine, hydrochloric acid, phosphorous acid and caustic material. Swabs taken from several areas in the garage revealed the presence of methamphetamine, although not in significant concentrations.
When the police searched the dwelling at the address, they found pipes and syringes that were consistent with having been used for the consumption of methamphetamine.

The charges

At the beginning of the trial Mr Papps faced 14 charges. The most serious of these alleged that he had manufactured methamphetamine at his address between 9 October 2017 and 12 April 2019. He also faced 12 charges of being in possession of equipment, materials, and a pre-cursor substance with the intention that those items be used in the manufacture of methamphetamine. In addition, he faced one…

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 Papps v The King

Details

AGLC: Papps v The King [2023] NZCA 352
Case: [2023] NZCA 352
Decision Date: 9 August 2023 at 9.30 am

CaseChat Overview and Summary

Gregory Roger Papps appeals against his conviction and sentence for charges related to methamphetamine manufacturing and possession. The appeal was heard in the Court of Appeal of New Zealand, with Gilbert, Lang, and Woolford JJ presiding over the case. The appellant was represented in person, while B J Thompson appeared for the respondent.

The appeal against conviction succeeded in part, with the convictions on charges 10 and 11 being set aside, and a judgment of acquittal being entered on these charges. However, the appeal against conviction on the remaining charges was dismissed. The appeal against sentence was partially allowed, with the sentence of seven months' home detention being reduced to five months. The 100 hours of community work remained intact.

The appellant raised several grounds for appeal, including the amendment of the Crown Charge Notice, the wording of the question trail, the extent of evidence relating to methamphetamine manufacturing, and alleged deficiencies in the conduct of his defence by his trial counsel, Mr Craig Horsley.

The Court found that the amendment of the Crown Charge Notice followed orthodox charging principles and did not cause any injustice to the appellant. The inclusion of the words "or someone else" in the question trail did not result in a miscarriage of justice, as the jury was aware that the appellant would be using the items to manufacture methamphetamine. The evidence relating to the manufacture of methamphetamine was relevant to the charges, and the jury was able to distinguish between the charges based on their verdicts.

The Court found that a miscarriage of justice had occurred in relation to charges 10 and 11, as there was insufficient evidence to support these charges. However, the Court found that no miscarriage of justice had occurred in relation to the remaining charges, despite the alleged deficiencies in the conduct of the appellant's trial counsel. The Court held that the failure to adduce evidence of a hair follicle drug test, the digital date stamp of a photograph, and the ESR test results did not have a material effect on the outcome of the trial. The late production of the trial booklet of text messages and the failure to object to irrelevant and prejudicial text messages did not adversely affect the jury's assessment of the appellant's credibility.

In relation to the sentence, the Court found that the sentence of home detention should be reduced to reflect the fact that the appellant should not have been convicted on charges 10 and 11. The sentence of community work remained intact. The appellant must report to a probation officer on 25 August 2023, and the sentence of home detention will resume on that date subject to certain conditions.

Orders