R v Iese CA188/03
[2003] NZCA 417
•6 November 2003
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 in the factual circumstances of this case.
[123] If two people are in a relationship, one of them may go to a shop and may purchase something and may bring that item home without the other partner being aware of it. It is, I think, a commonly held misapprehension that that is only done by wives and not by husbands.
[124] If one partner does that, goes to a shop, buys something and brings it home, without the other partner knowing about it, then that item is in the sole possession of the partner who has done the buying until the other partner comes home. When the other partner comes home and says “What did you buy that for?”, but nevertheless decides that, since it has been bought, it may as well be kept, he or she then becomes aware of the item and at that point it really becomes in the joint possession of both partners.
[125] There can be similar considerations in a flatting or in a communal living type context. While in a simple situation between partners, both partners may generally be in possession of most things which are in the house, that may not necessarily apply in a flatting or communal living type scenario. Generally speaking, items which are in the kitchen or in the common areas of the house or building in question may be in the joint possession of all those who live there, so long as there is knowledge of the item in question and an ability to exercise control over it. Conversely, however, items which are in a bedroom may be in the possession only of the occupant of that bedroom.
[126] Reverting to the more general issue of custody or control, it also follows from what I have said that to be in possession of something it does not have to be in one’s physical custody at all times. Although I am here at work now, things which I own at my home are in my possession, because I have control over them, even although I do not have present physical custody of them.
[127] That can be illustrated by reference to the facts of this case, because neither Mr Ginty nor Mr Hawkins were present at Level 2, 1 Bedford Row at the time of the search by the Police, but they were still in possession of the cannabis which was being sold from that address at that time, because that cannabis was under their control.
[128] However, their guilty pleas to the possession for sale charge do not mean that Ms Andersen and/or Mr Iese were not in possession of the cannabis.
[129] That is because, as I said on Monday, and as I have just mentioned, there can be situations where an item is in the joint possession of two or more people, and I have already used the analogies of a couple living together as partners and of people living together in a communal living scenario.
[130] It is entirely a matter for you as to whether you are satisfied that the cannabis bullets in the plastic container in particular were in the possession of either Ms Andersen or Mr Iese on 29 June 2001. That involves a consideration of all the evidence, as indeed of course do the issues which you must consider in respect of count 1.
[5] We will also set out at this stage a passage from the judgment of the High Court in Smith v Police (1993) 11 CRNZ 294, 295 (Tipping J) upon which Mr Green relied as a correct statement of the legal ingredients of possession and to demonstrate how, in his submission, the trial Judge’s directions were in error.
Counsel also referred in this respect to the earlier decision of this Court in R v
Cossey (1990) 6 CRNZ 185. The relevant citation from Smith reads:
Before examining the evidence more closely, I should mention the legal aspects of possession. Possession involves both physical and mental elements. The physical element is satisfied either by custody of the thing in question or control of it. The mental element involves proof of two things; first, knowledge of the essential nature of the thing in question and secondly, an intention to exercise either custody or control of it.
[6] We focus first on the Judge’s three elements. The first, which concerns the physical aspects of custody or control, is uncontroversial. The second refers to the mental ingredient of knowledge but does not make reference to the mental ingredient of intention. The third, supposedly a separate and additional element, is really no more than a statement of the first. An ability to exercise control is not, in substance, different from the unelaborated concept of control. Mr Shamy for the Crown rightly accepted that the Judge’s third element was not really or usefully a third element at all.
[7] The Judge then went on to give what he regarded as a helpful analogy. He spoke of circumstances involving husbands and wives, and partners in that sense. The relationship between Mr Iese and Ms Andersen was not shown to have had that character. As Mr Shamy also properly acknowledged, the analogy to that extent was not particularly useful. More helpful was the Judge’s reference in his paragraph [125] to flatting or communal living contexts.
[8] Mr Green argued that the absence of any direction on the necessary ingredient of intent was in the present context fatal. The argument became the stronger, so Mr Green submitted, by reference to the Judge’s paragraph [124], which suggested that it is enough to be in joint possession with another person if you know that that other person themselves has possession.
[9] Mr Shamy properly recognised that there were problems in the summing-up along the lines contended for by Mr Green. He suggested that the Court might be able to regard the direction as sufficient by reference to the words “decides” and “kept” in the 5th and 6th lines of the Judge’s paragraph [124]. Mr Shamy’s argument was that these words could be viewed as necessarily implying the need for the
further mental element of intention to which counsel acknowledged the Judge had not expressly referred. As was inherent in our decision to allow the appeal immediately following the argument, we were unable to accept Mr Shamy’s invitation to regard this aspect of the Judge’s direction as an adequate substitute for his failure to refer expressly to what was an important aspect of the matter, both generally and particularly in the light of the circumstances of the present case.
[10] In a case in which the alleged possessor has physical custody or control, it may be possible to infer, indeed is sometimes self evident from the nature of that custody or control, that the person in question has the necessary knowledge and intention. But where, as here, immediate physical custody or control is in the hands of another person and the possession of the person in question is alleged to be jointly with that other person, the Crown must prove clearly that the alleged joint possessor has both knowledge of the other’s possession and an intention to exercise custody of or control over the items in question in conjunction with that other.
[11] The appropriate legal direction should always call attention to the need for the requisite intention, albeit in some circumstances the absence of such a direction may not ultimately matter if the presence of that intention is self evident or not in issue. In cases like the present, however, the need for the Crown to prove Mr Iese had the requisite intention was, as Mr Shamy acknowledged, central to the whole case against him.
[12] Mr Iese had acknowledged that he knew Ms Andersen had possession of the cannabis for sale. He denied, however, that he had any such physical or mental links with the cannabis to cause him to be in possession of it himself. Clearly in these circumstances the Judge’s failure expressly to mention the need for Mr Iese to intend to exercise custody of or control over the cannabis, albeit jointly with Ms Andersen, was to omit a necessary legal element which was central to his defence. Furthermore, the Judge must be read as having given the jury the impression that Mr Iese’s knowledge that Ms Andersen had possession was sufficient in law to put him into possession jointly with her. This impression, which appears from the Judge’s paragraph [124], is reinforced by the Judge’s words in paragraph [125] “so long as there is knowledge of the item in question and an ability to exercise control
over it”. That of course omits reference to the vital point that there must also be an intention to exercise control over it. The mere fact that Mr Iese knew that Ms Andersen had possession of the cannabis and may have had an ability to exercise control over it, had he chosen to do so, was not enough of itself to put him into joint possession with her.
[13] Mr Shamy rightly accepted that in these circumstances he could not rely on the proviso to s385(1) of the Crimes Act 1961. He pointed out that the Crown was asserting at trial that Mr Iese and Ms Andersen were parties to and part of a joint venture. There was no suggestion that Mr Iese was guilty as a secondary party under s66 of the Crimes Act 1961. Both he and Ms Andersen were charged as principals. The joint venture suggestion was not, however, matched by any direction along those lines by the trial Judge. The absence of such a direction does not assist the Crown in its present difficulties.
[14] In circumstances such as the present the Court would ordinarily have directed a new trial. Mr Iese had, however, substantially served the requisite part of his sentence and was due for parole quite soon. In these circumstances the Crown quite properly did not seek any direction for a retrial and none was therefore given.
Solicitors:
Cameron & Company, Christchurch for Appellant
Crown Solicitor’s Office, Christchurch
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