Taitapanui v Police - [2019] NZHC 460

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-2

[2019] NZHC 460

BETWEEN
TANGIARIKI HEMENE TAITAPANUI

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2019-441-3

BETWEEN

TE AWAITI THOMPSON
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (via AVL): 14 March 2019

Counsel:

W R Hawkins for Appellant Taitapanui S M Lott for Appellant Thompson

C Walker for Crown

Judgment:

15 March 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] The sole issue in this appeal is whether or not, in a charge under s 6(1)(e) of the Misuse of Drugs Act 1975, it is necessary for the prosecution to prove the age of the person to whom the sale was made.

TAITAPANUI & ANOR v NEW ZEALAND POLICE [2019] NZHC 460 [15 March 2019]

[2] On 30 July 2018, the appellants, Ms Taitapanui and Mr Thompson, were convicted in a Judge-alone trial before Judge Adeane in the Hastings District Court of:1

(a)selling a Class C controlled drug, namely cannabis;2 and

(b)possessing cannabis for sale.3

[3] They jointly appeal the conviction on the basis that the Judge erred in determining that it was not a specific element requiring proof for a charge of selling cannabis pursuant to s 6(1)(e) of the Misuse of Drugs Act 1975 (the Act) to prove sale to a person over 18 years of age. They argue that a miscarriage of justice has therefore occurred within the meaning of s 232(2)(c) of the Criminal Procedure Act 2011 that has affected the outcome of the trial.

Factual background

[4] Ms Taitapanui and Mr Thompson are domestic partners. On the afternoon of 23 January 2018, the police went to an address in Hastings to conduct a search warrant in relation to stolen property. During the execution of that search warrant, cannabis was located at the property. Several containers containing cannabis were found in the appellants’ bedroom. Various other items, including electronic scales, a notebook containing “tick lists”, quantities of cannabis packed in clear plastic bags and cash were also located.

[5] Mr Thompson admitted to owning the cannabis, cannabis utensils, and drug paraphernalia. After he was cautioned, he also admitted to selling cannabis, explaining that the notebook was a “tick book” for people owing money.

[6] Ms Taitapanui also admitted to selling cannabis, saying in the DVD interview with police that she sold it to friends.

1      Police v Taitapanui [2018] NZDC 27352.
2      Misuse of Drugs Act 1975, s 6(1)(e); maximum penalty eight years’ imprisonment.
3      Section 6(1)(f); maximum penalty eight years’ imprisonment.

District Court decision

[7] The Judge noted that Mr Thompson and Ms Taitapanui were each charged with having in their possession a Class C controlled drug for the purpose specified in s 6(1)(e) of the Act. He stated:4
That section in turn provides that no person shall sell any Class C controlled drug to a person of or over 18 years of age. It is immediately juxtaposed against ss (d) which makes it clear that whereas supply simpliciter to…

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: [2019] NZHC 460
Decision Date: 15 March 2019

CaseChat Overview and Summary

The High Court of New Zealand Napier Registry heard an appeal against convictions for the sale and possession of cannabis for sale by Tangiariki Hemene Taitapanui and Te Awaiti Thompson. The appellants argued that the trial Judge erred in determining that it was not a specific element requiring proof for a charge of selling cannabis under section 6(1)(e) of the Misuse of Drugs Act 1975 to prove sale to a person over 18 years of age. The court had to determine whether it is necessary for the prosecution to prove the age of the person to whom the sale was made. The court considered the statutory framework, particularly sections 6 and 7 of the Misuse of Drugs Act 1975, and the legislative intent behind the creation of different offences based on the age of the person to whom the drug is supplied or sold. The court also examined relevant case law. The court concluded that age is relevant only when it is a matter of supplying drugs to a person under the age of 18, but when the offence is that of selling or offering to sell drugs, or having drugs in possession for the purpose of sale, this is an offence regardless of the recipient's age. The court found no error in the Judge's decision, and the appeal was dismissed.

Orders