Phillips v Police HC Blenheim CRI-2011-406-13

[2011] NZHC 1904

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2011-406-13

BRENDON SHANE PHILLIPS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 October 2011

Counsel:         R W Ord for Applicant

J M Webber for Respondent

Judgment:      16 November 2011 at 3:00 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 3pm on the 16th day of November 2011.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant was convicted, following a defended hearing in the District Court in Blenheim on 5 November 2010, on one charge of possession of cannabis, one charge of possession of BZP, and one charge of cultivation of cannabis.   He appeals against conviction.

[2]      As counsel for the appellant noted in his written submissions, the appellant has, from the outset, admitted commission of the actus reus of all three offences.

His defence, in the District Court, was based upon a number of matters going to the

PHILLIPS V NEW ZEALAND POLICE HC BLE CRI-2011-406-13 16 November 2011

issue of whether the appellant’s actions were committed with the necessary criminal intent, and as to his criminal culpability for his admitted acts.

[3]      In a carefully reasoned judgment delivered on 3 May 2011, Judge Broadmore referred to the various defences, which he described as concerning the issues of the appellant’s intent, the common law defences of inevitability, necessity and involuntariness,  the  implications  of  the  New  Zealand  Bill  of  Rights Act  in  the context of his addiction, an asserted defence of medical necessity and a defence of de minimis.  In his judgment, Judge Broadmore gave full and lengthy consideration to each of these defences.   He gave reasons for rejecting each of those defences which are entirely convincing.  I agree entirely with Judge Broadmore’s judgment.  I cannot improve upon his statement of reasons, and it is sufficient for me to say that I uphold his decision for the reasons which he gave, which are clearly correct.

[4]      I need only add some brief comments to address some particular points made by Mr Ord for the appellant.

[5]      In his submissions, Mr Ord recorded that the appellant repeatedly instructed at first instance that he wished to defend himself based on the Bible, that counsel specifically advised against it and that advice was reluctantly accepted.   Counsel says that for that reason no evidence was led in respect of his belief in the Bible as a “higher law”.  On appeal, the appellant has renewed his instructions that he honestly believed and believes as a fact that the Bible is a “higher law”, and that the Bible does not describe cannabis consumption as an offence.  Counsel submits that while no direct evidence was adduced at the hearing, there is some evidence supporting what counsel describes as the appellant’s overriding conviction that the Bible is a “higher law”.

[6]      Counsel’s advice at first instance was clearly sound.  The appellant’s belief that the Bible is a “higher law” and that it does not prohibit the consumption of cannabis, however strongly that conviction may be held, cannot affect the appellant’s criminal responsibility.   Belief in the  Bible as  a “higher law” does not exempt persons holding that belief from compliance with laws properly made.  This ground of appeal must accordingly fail.

[7]      The next ground of appeal is that the appellant’s belief in the supremacy in the Bible may give rise to a claim of right.  Counsel refers to Walden v Hensler[1] and R v Murnane.[2]    Mr Ord acknowledges that in New Zealand claim of right defences are usually raised on the basis of the statutory wording in a given offence section, and that the offences under appeal contain no such wording.  He submits however that the defence is available, based on the application of Walden v Hensler in R v Saxton.[3]

[1] Walden v Hensler (1987) 163, CLR 561 (HCA).

[2] R v Murnane DC Wellington CRI-2008-006-932, 16 March 2010.

[3] R v Saxton [2009] NZCA 498.

[8]      Walden v Hensler was concerned with an aboriginal Australian who hunted introduced turkeys in a Queensland National Park.  He successfully pleaded a claim of aboriginal right.  In Saxton, a case concerned with the theft of pounamu, a similar claim was made.  Mr Ord submits that there is a Walden v Hensler defence available to the appellant in common law which is not specifically excluded by statute.  He submits that that defence requires an honest, even if mistaken, belief in a claim of right in respect of property taken or held by the appellant, and that this extends beyond  a  claim  of  right  in  respect  of  property  taken,  to  a  belief  in  a  “higher authority”.  Counsel submits that the appellant claims a right to possess cannabis and that, however deluded that claim may be, the definition of claim of right is such as to permit it to be raised.

[9]      Counsel refers to the acquittals of the defendants in the Waihopai Satellite Monitoring Station case in R v Murnane, and to the definition of claim of right in s 2 of the Crimes Act 1961 which is:

Claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[10]     The  appellant  does  not  claim  any  form  of  property  or  indigenous  right analogous to those claimed in Walden v Hensler and R v Saxton.  Nor does he claim a right to prevent some wrong, such as was asserted in R v Murnane.  In essence, the claim of right asserted by the appellant is nothing more than a claim that the law

does not apply to him. This basis for the appeal is simply untenable.

[11]     In relation to the charge of possession of BZP, counsel submits that there was no evidence that the appellant had purchased or used the BZP after the amnesty for the disposal of BZP, following its classification as a controlled drug, had expired. Counsel  submits that  it is  highly unlikely that  the appellant  gave the  BZP any thought at all and his offending would be based on an omission.   This ground of appeal too is untenable.   There is no evidence to support the submission that the appellant was unaware of the fact that the BZP was in his possession.

[12]     The final ground of appeal raised is that the appellant needs to use cannabis for treatment purposes.   He submits that the only form of cannabis which can, in practice, be obtained by prescription is medicinal cannabis, not leaf cannabis, and that it is impossible for him to obtain medicinal cannabis in leaf form.  He submits that there has been a breach of s 19(1) of the New Zealand Bill of Rights Act 1990 (BORA), and that there is discrimination on prohibited grounds namely religious belief and/or psychological disability or impairment.

[13]     The arguments based on unlawful discrimination under BORA were fully addressed by Judge Broadmore.  As I have indicated, I consider that his reasons for rejecting that defence are correct.   In addition, I note that the proposition that the inability of the appellant to obtain cannabis in leaf form for medicinal purposes is a form of discrimination under s 19 could not, even if there were a tenable basis for it, constitute a defence.   Sections 7 and 9 of the Misuse of Drugs Act 1975 must be applied, according to their terms, to the appellant as to every other citizen.  As s 4 of BORA makes clear, no Court may decline to apply those provisions by reason of any inconsistency with BORA.  Again, this ground of appeal amounts to nothing more than an assertion by the appellant that the law does not apply to him.

[14]     Despite the care and skill of which counsel for the appellant has advanced the submissions he has been instructed to make, they cannot succeed.

[15]     The appeal is dismissed.  Costs are reserved.

Solicitors:           Rob Ord, Barrister & Solicitor, Nelson, for Appellant

O’Donoghue Webber, Nelson, for Respondent

“A D MacKenzie J”