R v Edmonds - [2009] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND
CA645/2008
[2009] NZCA 54
THE QUEEN
v
REGINALD EDMONDS
Hearing:23 February 2009

Court:William Young P, Chisholm and Heath JJ
Counsel:J B Samuel for Appellant

S J Mount and M J Inwood for Crown

Judgment:6 March 2009 at 11.30 am

JUDGMENT OF THE COURT

Appeals against conviction and sentence dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1] Following trial in the Auckland District Court before Judge Gittos and a jury the appellant was found guilty of knowingly permitting premises to be used for the cultivation of cannabis (s12(1) of the Misuse of Drugs Act 1975). The trial had taken three days. He was sentenced to two years imprisonment.
[2] This is an appeal against both conviction and sentence. The appeal against conviction relies on two grounds:
(a)The jury’s verdict cannot be supported having regard to the evidence.
(b)An unbalanced and unfair summing-up by the Judge gave rise to a miscarriage of justice.

Alternatively it is alleged that the sentence was manifestly excessive.
Background
[3]       The Crown case was that between 1 November 2006 and 28 February 2007 the appellant permitted his rural property at Barnett Road, Auckland, to be used for the cultivation of cannabis. That property is a disused chicken farm. It comprises eight large sheds and a dwelling, and has been owned by the appellant (through a company) since about 2004. He admitted that at all relevant times he lived in the dwelling on the property.
[4]       At about 5.30am on 28 February 2007 a motorist noticed a fire at the property. After ringing 111 she drove up the driveway to the dwelling occupied by the appellant. Her uncontradicted evidence was that when she told the appellant about the fire he said he would call someone. However, when she told him she had already rung 111 he closed the door in her face and after that she saw him “rushing around” the lounge area and “picking up things”. Although she remained in the vicinity of the property for five or seven minutes she did not see any activity on the driveway leading to the house during that time.
[5]       When the Fire Brigade arrived they found that one of the sheds on the property (shed 7) was on fire. After the fire was extinguished a substantial number of cannabis plants were found at the rear of the shed. The police were called.
[6]       The police found that, in addition to the fire damaged shed, two other sheds (sheds 3 and 4) were being used for the cultivation of cannabis. All these sheds contained potted cannabis plants, a system of lighting above the plants, associated transformers, and ventilation systems. Polythene had been used to line the walls.
[7]       A total of 613 potted cannabis plants at various stages of growth were located. The largest were 1.2 metres high. Another 108 pots containing rooting systems with the tops cut off were also found, together with some dried cannabis material. 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 R v Edmonds

Details

AGLC: R v Edmonds [2009] NZCA 54
Case: [2009] NZCA 54
Decision Date: 6 March 2009

CaseChat Overview and Summary

The appeal in the matter of Regina v Reginald Edmonds, heard before the Court of Appeal of New Zealand, involved an appeal against both conviction and sentence. The appellant was found guilty of knowingly permitting his property to be used for the cultivation of cannabis, a violation of section 12(1) of the Misuse of Drugs Act 1975. The appellant was sentenced to two years imprisonment. The appeal against conviction was based on two grounds: first, that the jury's verdict could not be supported by the evidence; and second, that the summing-up by the trial judge was unbalanced and unfair, resulting in a miscarriage of justice. Alternatively, the appellant argued that the sentence was manifestly excessive. The Crown, represented by S J Mount and M J Inwood, opposed the appeal.

The court found that there was ample evidence to support the jury's verdict. The appellant's argument that the cannabis operation could have been moved onto his property without his knowledge was rejected by the jury. The court found that the jury was entitled to infer that the appellant knew about the cultivation of cannabis and deliberately refrained from doing anything to prevent it. The court also found that the summing-up was not unfair and did not give rise to a miscarriage of justice. Although there were some editorial comments made by the trial judge, the court found that these comments did not undermine the overall fairness of the trial. Finally, the court found that the sentence imposed on the appellant was not manifestly excessive, as the judge had taken into account all relevant factors, including the appellant's previous convictions, age, and health concerns.

In conclusion, the appeals against both conviction and sentence were dismissed. The court upheld the trial judge's decision and affirmed the appellant's conviction and sentence.

Orders