R v Kenneth Christopher Morgan - [2003] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND
CA68/03
THE QUEEN
v
KENNETH CHRISTOPHER MORGAN
Hearing:26 November 2003

Coram:Gault P
Goddard J
Rodney Hansen J
Appearances: Appellant in Person

HDM Lawry for the Crown

Judgment:9 December 2003

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

[1]        The appellant appeals against his conviction and sentence in the Auckland District Court on one charge of cultivating cannabis and one charge of possession of cannabis for the purpose of supply. He was sentenced to concurrent terms of four years imprisonment on each charge.
Background
[2]        On 17 September 2001, the police executed a search warrant at an address in Garbolino Road, Mangawhai. The property was a 12-acre rural lifestyle block, which had a small cottage on it. The police found that the interior of the cottage had been converted to create a concealed room, custom-made and fitted for the cultivation of cannabis. In the room were found sixty-seven plants growing. They varied in size from 30 to 50 centimetres tall. In another small room, constructed in the kitchen area, the police found seventy-seven cannabis seedlings and two mature plants, each one metre tall.
[3]        In a drying cabinet, 963 grams of freshly picked cannabis seed heads were found. Elsewhere were located two bags of cannabis leaf, totalling 1,356 grams in weight. The police also found $1,800 in cash.
[4]        The appellant represented himself at his trial and gave evidence in his own defence. He admitted occupying the property as a tenant and also that he was responsible for cultivating the cannabis plants found there. He also admitted being in possession of the harvested material. He claimed that he was growing and processing the cannabis with the knowledge and support, including financial support, of the owner of the property, Clive Chismon. He said Mr Chismon was the owner of the harvested cannabis and would make any decision as to its disposal whereas he, the appellant was, as he described it, merely the gardener. He said the cash found in his possession was won at the casino.
Grounds of appeal
[5]        In this Court the appellant again represented himself, although counsel acting for him had prepared the written submissions filed in advance.
[6]        His appeal against conviction was brought on two grounds:
a)The evidence disclosed by the police search should have been ruled inadmissible because of defects in the issue of the warrant.
b)There were inadequacies and a lack of balance in the Judge’s summing up to the jury.

The first ground of appeal affects the convictions on both counts. The second concerns only the charge of possession for supply. In oral argument, the appellant also sought to argue that the trial Judge had wrongly refused to adjourn the trial. This ground had not been notified and was not pursued.
[7] The appeal against sentence is based on its being manifestly excessive.
Search warrant
[8] The application for the search warrant relied on information received from Mr Chismon, the owner of the property. 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 Kenneth Christopher Morgan

Details

AGLC: R v Kenneth Christopher Morgan [2003] NZCA 286
Case: [2003] NZCA 286
Decision Date: 9 December 2003

CaseChat Overview and Summary

In the case of R v Kenneth Christopher Morgan, the appellant appealed against his conviction and sentence in the Auckland District Court on one charge of cultivating cannabis and one charge of possession of cannabis for the purpose of supply. The appellant was sentenced to concurrent terms of four years imprisonment on each charge. The Court of Appeal of New Zealand heard the appeal on 26 November 2003, with the judgment delivered by Rodney Hansen J on 9 December 2003.

The legal issues in this case were whether the search warrant was validly issued and if there were inadequacies and lack of balance in the summing up to the jury. The appeal against sentence was based on the argument that it was manifestly excessive.

The Court found that the search warrant was validly issued, as it contained sufficient information to enable the issuing officer to be satisfied on reasonable grounds that a search would disclose evidence of the commission of an offence. The Court also found that the summing up in relation to Count 2 was defective, as the Judge never clearly explained to the jury how the presumption of possession for supply could be rebutted.

The Court quashed the conviction on the charge of possession of cannabis for supply and reduced the sentence to three years imprisonment, acknowledging that the offending was now confined to simple cultivation. The appeal against conviction was allowed, and the appellant's conviction on the charge of possession of cannabis for supply was quashed. The appeal against sentence in respect of Count 1 was also allowed, with a sentence of three years imprisonment imposed in place of the original four-year sentence.

Orders