Smith v The Queen

[2005] NZCA 238

IN THE COURT OF APPEAL OF NEW ZEALAND

CA200/05

THE QUEEN

v

PETER ANTONY SMITH

Hearing:13 October 2005

Court:Robertson, Baragwanath and Heath JJ

Counsel:Appellant in person

M A Davies for Crown

Judgment:17 October 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Heath J)

[1]       In May 1992 Mr Smith was convicted of cultivating cannabis following a jury trial in the District Court at Nelson.  He was subsequently fined $500.

[2]       This is a rehearing of an appeal which Mr Smith filed in a timely manner and which was dealt with on the papers in accordance with the previous procedure.  R v Taito [2003] 3 NZLR 577 affirmed the right of every appellant to have one meaningful appeal from conviction. R v Smith [2003] 3 NZLR 617 held that all persons who have had their appeals dealt with ex parte could apply for a rehearing of the appeal.

[3]       The ground of appeal advanced by Mr Smith involves alleged Police misconduct.  There is no challenge to the directions given to the jury by Judge Unwin.

[4]       Mr Smith filed written material in support of his appeal, all of which we have read carefully.  We also heard from him orally.  We compliment Mr Smith on the way he conducted himself before us, particularly as this has been a troubling experience for him.

[5]       Mr Smith’s submission is that Constable Drummond gave incorrect answers to questions put to him at trial.  In the rehearing application, the point was put on the following basis:

The arresting police officer lied whilst giving evidence at the Nelson District Court.  …  And this is made evident by reading the trial transcript … [and] audio record also.

[6]       The Crown case at trial consisted solely of the Constable’s evidence.  Mr Smith challenged his evidence in cross-examination.  No evidence was given or called by Mr Smith to contradict what was said by the Constable.

[7]       Mr Smith put to the jury that the Constable was giving false evidence.  But in order to find Mr Smith guilty the jury, having been directed about the need for the Crown to prove its case beyond reasonable doubt, must have accepted the Constable’s evidence.

[8]       We have read the evidence of Constable Drummond.  There is no basis upon which we can say that his evidence was either untruthful or inherently unreliable.

[9]       Once the Constable’s testimony was accepted, there was ample evidence for the jury to find Mr Smith guilty on the charge of cultivating cannabis.  There is no legal basis upon which this Court can interfere with the jury’s decision and the conviction entered in consequence of it.

[10]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington