Robinson v The Queen

[2004] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

CA159/04

THE QUEEN

v

PHILIP NOEL ROBINSON

Coram:Glazebrook J
Hammond J
Chambers J

Counsel :Appellant in Person

H D M Lawry for Crown

Judgment (on the papers):      21 September 2004     

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Cultivation of cannabis

[1]       Following trial by jury, Philip Robinson was found guilty of cultivating cannabis.  The trial judge, Judge Erber, fined him $750 plus costs. 

[2]       Mr Robinson’s appeal has been heard on the papers pursuant to s392B of the Crimes Act 1961.  The relevant materials, including written submissions, which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the court, who have conferred and agreed upon this judgment.

Issues on the appeal

[3]       Mr Robinson’s grounds of appeal and his submissions on the appeal have not been presented in orthodox form.  So far as we have been able to ascertain, Mr Robinson seeks to raise four issues on this appeal. 

[4]       First, he says that Judge Erber refused to appoint an amicus curiae. 

[5]       Secondly, he submits that the judge wrongly ruled inadmissible a certain document called “The Report” which he wished to put before the jury. 

[6]       Thirdly, he challenges the Misuse of Drugs Act 1975 on the grounds that cannabis is harmless and that it should have been left to the jury to exercise their conscience as to whether the law is “fair and just”.  This argument is presented in a number of different ways, but the ultimate submission is that cannabis should not be illegal. 

[7]       Finally, he appeals against the fine and costs. 

[8]       We shall deal with the issues in turn.

Amicus curiae

[9]       Mr Robinson complains that the judge refused his application that the court should appoint Mr K E A d’Oudney, of France, as amicus curiae.  He was said to be “a disinterested advisor”. 

[10]     Judge Erber dismissed this application on 30 March 2004.  We have not seen the reasons for dismissing it, if he gave them.  But it is obvious that the application was misconceived.  We should point out that the suggested amicus, Mr d’Oudney, is the author of a book entitled The Report, the eighth edition of which was apparently published in 2002.  The Report is a polemic work advocating the legalisation of cannabis. 

[11]     Any application to appoint Mr d’Oudney as an amicus was doomed to failure.  First, an amicus is always a New Zealand lawyer.  Mr d’Oudney is not.  Secondly, amici are appointed in cases where the court requires assistance on some area of law, to advocate a position which might not otherwise be propounded.  Amici are rarely appointed in criminal trials.  Thirdly, in any event, Mr d’Oudney was obviously not “a disinterested party”.  Fourthly, Mr d’Oudney was, according to the application, prepared to come to New Zealand only if the court paid his costs to do so.  The judge would have had no jurisdiction to order public funds to be expended for that purpose. 

[12]     The application was correctly rejected.  We would point out that Judge Erber did permit Mr Robinson to have a McKenzie friend.

Admissibility of The Report

[13]     Mr Robinson sought to put before the jury The Report.  Judge Erber ruled that the document was inadmissible.  He was correct to do so. 

[14]     First, Mr d’Oudney’s views on the legalisation of cannabis were irrelevant to the issues the jury had to decide.  Only relevant evidence is admissible. 

[15]     Secondly, even if expert evidence was relevant (which it was not), then in accordance with the normal rules of evidence, the person who seeks to give the expert evidence would himself have had to give that evidence.  Mr Robinson would have had to call him.  The witness would have had to qualify himself as an expert and would have had to be available for cross-examination.

[16]     The judge correctly ruled that Mr Robinson was not entitled to put Mr d’Oudney’s work before the jury. 

Challenge to the cannabis law

[17]     At the heart of Mr Robinson’s appeal is the fact that he considers the cannabis law in this country to be unjust.  He considers cannabis to be harmless and the “‘law’ of prohibition and the persecution of cannabis users [to be] illegal”. 

[18]     Judge Erber patiently explained to Mr Robinson that the courts were not the forum in which this campaign could be waged.  It is Parliament Mr Robinson must persuade.  The courts, including juries when they sit as triers of fact, must obey Parliament’s laws.  The jury had sworn an oath to apply the law of New Zealand.  It was not open to them to disregard Parliament’s categorisation of cannabis as a class C controlled drug.

Sentence

[19]     Mr Robinson submits that he should have been discharged without conviction. 

[20]     The police located 11 mature cannabis plants growing in a tunnel house.  They ranged in size from 1.5 metres tall to 3 metres tall.  Mr Robinson admitted planting and tending to the plants and having harvested other plants.  He showed the police a biscuit jar containing what he said were 22 cannabis cookies.  He had 380 cookies frozen in his freezer, which he also said contained cannabis.  The total weight of the cookies was 7.85 kg.  Mr Robinson said that he ate them himself and sometimes gave them away. 

[21] In those circumstances, it cannot possibly be said that the judge was wrong to enter a conviction. This was not a case where the power to discharge without conviction notwithstanding the jury’s finding of guilt should have been exercised. The penalty – a fine – was clearly within the sentencing judge’s discretion. The order for costs was in accord with the Costs in Criminal Cases Act 1967.

Result

[22]     We dismiss the appeal. 

[23] This appeal, like the defence at trial, never had any prospect of success. Mr Robinson must have known that this was not the correct forum for advancing arguments in favour of the legalisation of cannabis. His appeal led to substantial cost on the Crown’s part as the Crown was duty bound to answer his submissions. We consider that this case comes within s8(5) of the Costs in Criminal Cases Act. We order Mr Robinson to pay costs to the Crown with respect to this appeal in the sum of $750.

Solicitors:
Crown Law Solicitors, Auckland