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IN THE SUPREME COURT OF NEW ZEALAND
SC 58/2005 [2007] NZSC 7
PAUL RODNEY HANSEN
v
THE QUEEN
Hearing:22 February 2006
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:S Vidal and J Taylor for Appellant
T Arnold QC, J C Pike and J M Davidson for the Crown
Judgment:20 February 2007
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
REASONS
Para No
Elias CJ [1] Blanchard J [46] Tipping J [85] McGrath J [168] Anderson J [262]
ELIAS CJ
[1] Under s 6(6) of the Misuse of Drugs Act 1975 those who are in possession of controlled drugs above specified quantities are deemed “until the contrary is proved” to possess the drugs for the purpose of supply or sale. Possession of cannabis is an offence which carries a maximum term of imprisonment of three months. Possession of cannabis for the purpose of supply or sale carries a maximum term of imprisonment of eight years. The appellant was proved at trial to have been in possession of more than the 28 grams of cannabis plant at which the statutory presumption of purpose of supply or sale is triggered. The Judge directed the jury that s 6(6) required him to disprove on the balance of probabilities a purpose of supply or sale.[1] The appellant contends this direction was wrong, although it conforms to the decision of the Court of Appeal in R v Phillips.[2] Following his conviction, the appellant appealed unsuccessfully to the Court of Appeal, which declined to depart from R v Phillips. He was granted leave to appeal further to this Court on the question whether s 6(6) does place a legal onus of proof on the accused, as R v Phillips held.
[1]In written directions given to the jury, the Judge instructed them that once the Crown had proved beyond reasonable doubt that the accused was in possession of cannabis weighing more than 28 grams, “the accused is presumed or deemed to have the drugs for the purpose of supplying them to others”:
[2] The appellant maintains that requiring an accused to persuade the jury that he did not have the purpose of sale or supply is inconsistent with his right under s 25(c) of the New Zealand Bill of Rights Act 1990 to be presumed innocent until proved guilty. He argues that s 6 of the New Zealand Bill of Rights Act required s 6(6) of the Misuse of Drugs Act to be given a meaning consistent with the presumption of innocence in s 25(c). Section 6 of the New Zealand Bill of Rights Act provides:
6Interpretation consistent with Bill of Rights to be preferred –
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[3] The appellant contends that consistency with the right to be presumed…
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.
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AGLC
R v Hansen [2007] NZSC 7
Case
[2007] NZSC 7
Decision Date
CaseChat Overview and Summary
In the Supreme Court of New Zealand, the case of R v Hansen revolved around the interpretation of section 6(6) of the Misuse of Drugs Act 1975. The appellant, Hansen, was convicted of possessing cannabis for the purpose of supply or sale. Section 6(6) of the Act presumes that if a person is in possession of more than a specified quantity of a controlled drug, they are in possession for the purpose of supply or sale, until proven otherwise. Hansen argued that this provision infringed his right to be presumed innocent until proven guilty, as guaranteed under section 25(c) of the New Zealand Bill of Rights Act 1990. The Supreme Court considered whether section 6(6) imposed a legal burden of proof on the accused, requiring him to disprove the presumption on the balance of probabilities. The Court concluded that section 6(6) indeed imposed such a legal burden and was inconsistent with Hansen's right to be presumed innocent. However, the Court held that the inconsistency was justified under section 5 of the Bill of Rights Act, which allows for reasonable limits to rights and freedoms in a free and democratic society. The appeal was dismissed, affirming Hansen's conviction.