R v Gray

Case [2009] NZCA 31 24 February 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA562/2008
[2009] NZCA 31
THE QUEEN
v
MAUREEN RITA GRAY
Hearing:12 February 2009

Court:Robertson, Hugh Williams and Miller JJ
Counsel:M J Lillico for Appellant

T Epati and K Laurenson for Crown

Judgment:24 February 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Hugh Williams J)
INTRODUCTION
[1]       The appellant, Ms Gray, was convicted in the Gisborne District Court (CRI 2008-016-001911) on 2 July 2008 on one count of possessing cannabis for the purpose of sale.
[2]       On 4 August 2008 (CRI 2007-016-003005) she was sentenced by Judge Perkins (who presided at the trial) to two years’ imprisonment.
[3]       She appeals against the conviction on the basis that the offence of permitting her premises to be used for the purpose of an offence against the Misuse of Drugs Act 1975 was an included offence and should have been put to the jury, and on the basis that the summing-up reversed the onus of proof.
[4]       The sentence appeal is advanced on the basis that the sentence was manifestly excessive and the appellant should have been sentenced to home detention.
Facts
[5]       The Police executed a search warrant on the appellant’s property on 23 October 2007. They discovered several bags containing cannabis leaf weighing 541 grams secreted in a locked wardrobe, together with some cannabis “bud” weighing three grams. In the roof, to which access was gained through a man-hole, Police found metal boxes, a bucket and other containers containing cannabis plant head material, nearly 7,000 seeds and some cannabis oil. Further cannabis was found in a hallway cupboard and 27 cannabis seedlings were growing at the rear of the property. In all, over 3.5kgs of cannabis was located at the appellant’s property.
[6]       To the Police and in evidence at trial the appellant said she was holding the cannabis for another person but declined to name them beyond saying it was a family member.
[7]       At trial, the appellant made no attempt to rebut the presumption arising from s 6(6) of the Misuse of Drugs act 1975 that the cannabis was for sale. The only issue at trial was whether the Crown could prove the legal elements of possession against Ms Gray.
[8]       The property was occupied by the appellant and her partner, Mr Pomana. He was charged with possession of cannabis for sale, cultivation and possession of ammunition arising from the search. He was found guilty on the ammunition charge. He pleaded guilty to the cultivation charge but the jury were unable to agree on the possession charge. Before re-trial, the Crown amended the indictment from possession of cannabis for sale to permitting premises to be used for the purposes of offences against the Misuse of Drugs Act. He pleaded guilty and was sentenced to Community Work.
Reversal of onus of proof
[9]       Mr Lillico, counsel for the appellant, relied on the following passage for his submission that the…

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 Gray

Details

AGLC: R v Gray [2009] NZCA 31
Case: [2009] NZCA 31
Decision Date: 24 February 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand was called upon to consider the appeals by Ms Maureen Rita Gray against her conviction and sentence. Ms Gray was convicted in the Gisborne District Court of possessing cannabis for the purpose of sale and sentenced to two years’ imprisonment. The appeal against her conviction contended that the offence of permitting her premises to be used for the purpose of an offence against the Misuse of Drugs Act 1975 was an included offence and should have been put to the jury, and that the summing-up reversed the onus of proof. The appeal against her sentence was on the basis that the sentence was manifestly excessive and that she should have been sentenced to home detention.

The Court addressed the legal issues by first considering the contention that the trial judge should have directed the jury to consider the alternative charge of permitting premises to be used for the commission of an offence under the Misuse of Drugs Act. The Court found that the alternative charge was not an included charge and that the trial judge was correct in not directing the jury to consider it. The Court reasoned that there was no prejudice to Ms Gray in the trial judge's decision and that the sole issue at trial was whether the Crown could prove possession of the cannabis by Ms Gray. The Court also found that the summing-up did not reverse the onus of proof, but merely directed the jury’s attention to the prime issue in the case, namely whether the evidence showed Ms Gray or someone else had possession and control of the cannabis.

The Court further considered the appeal against the sentence, finding that the sentence imposed by the trial judge was well within range for the offence and that there was no basis for suggesting that the trial judge fettered his consideration of home detention. The Court concluded that the sentence imposed was appropriate and dismissed the appeal against sentence.

In conclusion, the Court dismissed both the appeal against conviction and the appeal against sentence. The Court found that the trial judge's directions to the jury and the sentence imposed were both appropriate and that there was no basis for interference with the trial judge's decisions.

Orders