R v Iese CA188/03 - [2003] NZCA 417

IN THE COURT OF APPEAL OF NEW ZEALAND

CA188/03

THE QUEEN

v

SANI JOEL IESE

Hearing: 30 October 2003

Coram: Tipping J
Rodney Hansen J Paterson J

Appearances: B R Green and A K Wilkie for Appellant
P J Shamy and A M Toohey for Crown

Judgment: 30 October 2003

Reasons: 6 November 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] At the conclusion of the hearing of this appeal against conviction we gave judgment allowing the appeal, quashing the conviction and indicating that there would be no direction for a retrial. We now give our reasons for determining the matter in that way.

[2] Sani Joel Iese was found guilty of possession of cannabis for sale and sentenced in the District Court at Christchurch to two years imprisonment. He
appealed against his conviction on three grounds, only one of which requires

R V SANI JOEL IESE CA CA188/03 [6 November 2003]

discussion, because it succeeds. Mr Iese was charged on the basis that he was jointly in possession of the cannabis in question with others including, in particular, Marilyn Emma Andersen. He was in a relationship with Ms Andersen, the precise nature of which was not in evidence. She was proved to be in physical possession of the cannabis. The Crown’s contention was that Mr Iese was also in possession of the same cannabis jointly at least with her.

[3] The ground of appeal now under consideration is based on the contention that the trial Judge misdirected the jury as to the legal ingredients of possession, both generally and specifically in relation to the present case. There was no evidence physically linking Mr Iese with the relevant cannabis. It was found in premises colloquially known as a tinny house. The Crown was able to link Mr Iese to the tinny house in a general way but not directly to the cannabis. Ms Andersen, who was also found guilty, was linked to the cannabis by means of her fingerprints. The Crown’s case was based essentially on the proposition that the link between Mr Iese and Ms Andersen, through their relationship, was sufficient to link him to the cannabis which was proved to be in her possession for sale. Clearly, on the evidence available to the Crown, it was not the strongest of cases against Mr Iese.

[4] We now set out in full the relevant passage in the Judge’s summing-up in which he explained to the jury the necessary legal aspects of possession. This is what His Honour said:

[118] The concept of possession involves three elements.

[119] Firstly, the person must have custody of the item in question or control over it.

[120] Secondly, the person must have knowledge of the item in question and of its general nature.

[121] Thirdly, the person must have the ability to exercise control over the item in question.

[122] I can give you a useful analogy about the concept of possession which may be of assistance to you…

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 Iese CA188/03

Details

AGLC: R v Iese CA188/03 [2003] NZCA 417
Case: [2003] NZCA 417
Decision Date: 6 November 2003

CaseChat Overview and Summary

In this appeal, Sani Joel Iese appealed against his conviction for possession of cannabis for sale, which was initially determined by the District Court at Christchurch. Iese was sentenced to two years of imprisonment, but he contested the conviction on three grounds. The appeal was ultimately allowed by the Court of Appeal of New Zealand, with Tipping J, Rodney Hansen J and Paterson J sitting as judges. The central issue was whether the trial judge misdirected the jury concerning the legal ingredients of possession, both generally and specifically in relation to this case. Iese was not physically linked to the cannabis in question, which was found in a tinny house. However, the Crown's case was based on the proposition that the link between Iese and the woman, Marilyn Emma Andersen, through their relationship, was sufficient to link him to the cannabis, which was proved to be in her possession for sale.

The court found that the trial judge's explanation of the legal aspects of possession was incorrect. While the first element concerning the physical aspects of custody or control was uncontroversial, the second element, referring to the mental ingredient of knowledge, did not make reference to the mental ingredient of intention. Additionally, the third element was not a separate or useful element. The judge's analogy, while more helpful in discussing flatting or communal living contexts, was not particularly useful in the context of Iese and Andersen's relationship. The absence of any direction on the necessary ingredient of intent was fatal, as the Crown had to prove that Iese had both knowledge of Andersen's possession and an intention to exercise custody of or control over the items in question in conjunction with her.

Given the omission of the necessary legal element which was central to Iese's defence, the Court of Appeal allowed the appeal, quashed the conviction, and decided not to direct a retrial. This decision was made considering that Iese had substantially served the requisite part of his sentence and was due for parole soon. The Crown did not seek a retrial, and none was therefore given.

Orders