Robinson v Police - [2013] NZHC 3212

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000278 [2013] NZHC 3212

BETWEEN MICHAEL CHARLES ROBINSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 December 2013

Appearances: Appellant in person
J Pridgeon for Respondent

Judgment: 3 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]

This judgment is delivered by me on 3 December 2013 at *** am/pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Meredith Connell, Auckland
And to: Appellant

ROBINSON v NEW ZEALAND POLICE [2013] NZHC 3212 [3 December 2013]

Introduction

[1] The appellant appeared before Judge L Tremewan in the Waitakere District Court on 12 June 2013 for a defended hearing on five charges; namely failing to remain stopped for an enforcement officer, providing false or misleading information to an enforcement officer, possession of cannabis, cultivating cannabis, and possessing utensils (a bong and three spotting knives) for the purposes of committing an offence under the Misuse of Drugs Act 1975.

[2] The relevant Informations record that all charges other than that relating to possession of utensils were dismissed. The Judge found that charge proved. The appellant has appealed against his conviction on the charge of possessing utensils, and the sentence of 50 hours community work and 12 months supervision imposed by Judge Tremewan the same day.

[3] The appellant’s appeal is on the following grounds:

(a) he was not provided with “full disclosure” until the day of the hearing,

and a request to stay the prosecution was declined by the Judge;

(b)even when he was provided with disclosure, it was not “full disclosure”;

(c) the Information on which he was charged alleged that he was found in possession of a needle and syringe, but no such utensils were found; and

(d)(as raised in a later communication from the appellant) that he was found guilty because he had not offered an explanation for the bong or spotting knives which were found. The appellant says that it was for the Police to prove that these items belonged to him, and they had failed to prove that, or that any illegal substance was intended to be consumed.

Evidence in the District Court

[4] In the District Court, evidence was given by Constables Whitefield and Johnson. Both were cross-examined by the appellant. Constable Whitefield said that he had pulled the appellant over at a checkpoint on 10 February 2012. He took details from the appellant, including the home address he gave. The appellant then drove off, without being permitted to do so. The constables then drove to the address the appellant had given but were told he did not live there. The occupant directed them to another address.

[5] At that address, the occupant directed the constables to a sleepout at the side of the house. The constables knocked on the door and were invited to come in. Upon doing so, the constables immediately smelt cannabis. They conducted a search under s 18(2) of the Misuse of Drugs Act.…

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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Details

Case: [2013] NZHC 3212
Decision Date: 3 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Michael Charles Robinson, the appellant, brought an appeal against his conviction and sentence in the Waitakere District Court, presided over by Judge L Tremewan. The charges against Robinson included possession of utensils, namely a bong and three spotting knives, for the purpose of committing an offence under the Misuse of Drugs Act 1975. The appellant was found guilty of this charge and was sentenced to 50 hours of community work and 12 months of supervision. The appeal was based on four grounds: the timing of the disclosure of evidence, the inaccuracy of the information used to charge him, the failure of the prosecution to prove ownership of the items in question, and the lack of explanation provided by Robinson for the items found.

The court examined the timing and completeness of the disclosure of evidence. The appellant argued that he did not receive the full disclosure of evidence until the day of the hearing and that a request to stay the prosecution was denied. The court found that the prosecution had made reasonable efforts to provide the appellant with the necessary disclosure, and the appellant's claim of not receiving the disclosure was unsubstantiated. The court also determined that the information used to charge Robinson was accurate and that he was correctly charged with possession of a bong and knives, not needles and syringes. Furthermore, the court held that the prosecution did not need to prove ownership of the items to secure a conviction for possession, and that the appellant's failure to provide an explanation for the items found was sufficient for the Judge to infer the purpose of possession.

The court found that the sentence imposed on Robinson was not manifestly excessive, as it was within the range of sentences available for the charge of possession of utensils. The appellant's previous convictions for drug-related offences did not render the sentence excessive. Therefore, the appeal against both conviction and sentence was dismissed, though the appellant was granted leave to appeal due to the late filing of the notice of appeal.

Orders