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 a person under 18 is a qualifying offence, [to] become an offence under s (e) which deals with persons over 18 years of age, a sale must be involved. Separate provisions are made for sale and supply according to the age of those sold to or supplied.

[8]                 The Judge further noted that both defendants admitted to selling, having “candidly confessed to the police their involvement”,5 and he determined:6

It is in my view, not a specific ingredient of the charge that proof [of] sale to persons over 18 has to be established. The legislative scheme is to create a more aggravated offence of any sort of supply for money or otherwise to those under 18. Where persons over 18 are involved, the full rigors of s 6 of the penalties it involves are [not] invoked, unless there is a sale by definition.

[9]                 The Judge concluded that the ingredients of each of the charges were proved to the required standard.7

Approach to appeal

[10]            This appeal is brought under s 232(2)(b) and (c) of the Criminal Procedure Act 2011 which provides that an appeal must be allowed if the Court is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason. Such an appeal proceeds by way of rehearing.

[11]            A “miscarriage of justice” is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that:8

4      Police v Taitapanui, above n 1, at [2].

5 At [7].

6 At [6]. The omission of “not” in the final sentence of this passage is presumed to have been a typographical error.

7 At [8].

8      Criminal Procedure Act 2011, s 232(4).

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

Discussion

[12]            Counsel for Ms Taitapanui, Mr Hawkins, submits that the issue at the trial was whether police could prove sale to a person aged of or over 18 years, or supply to a person under 18 years of age. He submits that there was no admissible evidence led by the police on this issue, no individual person of any description having been identified. The only evidence of identified individuals that had purchased drugs were the names entered into a “tick list”, many of which were just nick names like “Dj” or “Aunty”.    Ms Taitapanui had said that she sold cannabis to her “mates”, which     Mr Hawkins submits is an imprecise term that cannot definitively include or exclude any individual. The word “mate”, it is submitted, does not denote any specific identifying characteristics, especially in reference to age. While it may have been possible, or even likely, that some of the persons sold to could have been over 18 years of age, that threshold is significantly lower than the required threshold of beyond reasonable doubt. At the trial, Mr Hawkins submitted that the prosecution had failed to establish evidence of age of persons sold to, and therefore sought that the charges be dismissed. He contends the Judge erred in ruling that proof of sale to a person aged over 18 years was not required under ss 6(1)(e) and (f) of the Act.

[13]            Counsel for Mr Thompson, Ms Lott, submits that evidence from Ms Taitapanui in the form of her statement to police admitted that she sold to “mates” is not admissible  against  Mr  Thompson.  That  is  correct.   She  further  submits  that  Mr Thompson’s admissions amounted to “selling” but with no evidence on his customers’ details. That is also correct. In common with Mr Hawkins, Ms Lott submits that the Judge erred in ruling that age is not an element to be proved beyond reasonable doubt.

[14]Section 6 relevantly provides as follows:

6Dealing with controlled drugs

(1)Except as provided in section 8, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—

…

(d)supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or

(e)sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or

(f)have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e).

…

(5)For the purposes of paragraph (e) of subsection (1), if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.

[15]The Act defines supply as including “distribute, give, and sell”.9

[16]            Mr Hawkins submits that, as s 6(1)(d) creates an offence to supply or administer a Class C controlled substance to a person under 18 years of age, while    s 6(1)(e) creates an offence to sell a Class C controlled substance to a person of or over 18 years of age, one of the delineating features between these subsections is the issue of age. That is self-evident.

[17]            Mr Hawkins argues that the parallel provision for being in possession of supply of a Class C controlled drug is s 7(1)(b) of the Act which provides:

7Possession and use of controlled drugs

(1)Except as provided in  section 8, or pursuant to a licence under this   Act, or as otherwise permitted by regulations made under this Act, no person shall—

…

(b)supply or administer, or offer to supply or administer, any   Class C controlled drug to any other person, or otherwise deal in any such controlled drug.

9      Misuse of Drugs Act, s 2.

[18]            Mr Hawkins states that s 7 is drafted in broader terms, being an offence to supply “any person” or “otherwise deal” regardless of age, which can be distinguished from s 6(1)(d) and (e) which restrict liability by virtue of the age of the person to whom the drug is supplied or sold. He submits that if it can only be an offence under s 6(1)(d) if the person sold to is under 18 years of age, similarly it can only be an offence to sell cannabis under s 6(1)(e) if the person sold to is aged 18 years or over. Mr Hawkins notes that s 6(5) is a statutory mechanism that allows a Court to presume supply as being synonymous with sale of a Class C substance. He submits that what this proviso aims to achieve is that, if it can be established that there has been supply of a Class C controlled substance, a defendant cannot escape liability by claiming sale of the substance in question and vice versa. As this proviso makes no mention of the age of the person supplied or sold to, Mr Hawkins submits that the default position must therefore be that, on a strict reading of s 6(1)(e), the person sold to must be aged over 18 years of age and this is an essential element requiring proof beyond a reasonable doubt.

[19]The Crown, however, submits that it is apparent from ss 6 and 7 of the Act that:

(a)it is an offence to supply cannabis to anyone;

(b)it is an offence to sell cannabis to anyone;

(c)it is more serious to sell or supply cannabis to young people (persons under 18 years of age) than to adults (persons of or over 18 years of age); and

(d)it is more serious to sell cannabis to adults than to merely supply them.

[20]            Three Court of Appeal cases have addressed the issue of age in relation to the form of charges of possessing cannabis for sale or supply under s 6(1)(f). The first of these cases is R v Tracy in which the Court suggested that, where there was no evidence as to the age of the intended recipient, the appropriate form of the charge was “for a

purpose specified in paragraph (d) or paragraph (e) of subsection (1) of section 6 of the Misuse of Drugs Act 1975”, saying:10

It seems to us that the legislature must have intended that a charge under para

(f) could be established by evidence showing that the accused must have had at least one of the various purposes therein referred to even though there was insufficient evidence to establish which of such purposes he had in his mind.

[21]            The Crown submits that the above passage indicates that it was not considered necessary for the fact finder to draw a conclusion as to the age of the intended recipient, only that the defendant had intended to either sell to an adult or supply (which includes sell) to a young person.

[22]            The position was refined in R v Paterson in which the Court suggested that, where there was no evidence of supply to young people, there was no need to refer to s 6(1)(d), outlining the various advantages of that approach as follows:11

The form of alternative count suggested in Tracy has been found convenient in practice. It has often been used and its propriety is not in question. It is to be noted, however, that Tracy was concerned with cases where the prosecution is putting forward cumulative or alternative counts, directed both to sale to persons of or over 18 and supply to persons under 18. When there is no reason to suggest that the defendant may have intended to supply persons under 18, we see no reason why a simple count charging possession for sale to persons of or over 18 should not suffice. The prosecution would then have the benefit of the presumption, if the quantity in possession is enough to raise it, because within the meaning of s 6(6) the case would then require that presumption. The defendant could defeat the presumption by proving on the balance of probabilities that he intended merely to supply, without sale, persons of and over 18. It seems highly unlikely that a defendant would attempt to show that he intended to extend his supply to persons under 18, for at best that would leave him open to a new charge at a different trial on which his admission would be evidence against him.

[23]            The approach was further refined in Tran v R, a case in which there was no suggestion of supply to young people.12 The Court approved the use of the wording “for the purposes of sale”, saying:

[9]   In this case, the relevant purpose relied on in terms of s 6(1)(f) was   that of sale. The indictment charged “possession for the purposes of sale” of pseudoephedrine. Sale of a Class C controlled drug to any person constitutes an offence, by the combined operation of paras (d) and (e) of s 6(1). Sale to a

10     R v Tracy [1978] 2 NZLR 91 at 95.

11     R v Paterson [1985] 1 NZLR 334 at 337.

12     Tran v R [2010] NZCA 349.

person under 18 is an offence under para (d), because the definition of “supply” in s 2 includes “sale”. Sale to a person 18 years or older is an offence under para (e). The reason for that somewhat convoluted prescription of the offence of sale of a Class C drug is that the supply (otherwise than by sale) of such a drug to a person over 18 constitutes only the lesser offence created by s 7(1)(b) of the Act.

[24]            The Crown submits that it is apparent from Paterson and Tran that, where there is no suggestion in the evidence that the cannabis is intended to be supplied to young people, it is appropriate for the prosecution to focus the charge on the purpose of sale rather than the alternative purpose of sale or supply. This approach, it is submitted, is to a defendant’s advantage because it excludes the more aggravated form of the offence when there is no evidence to suggest that it is applicable.

[25]            The same reasoning applies in cases involving the allegation of sale rather than possession for sale, the Crown submits. Where there is no evidence that the cannabis was sold to young people, the practice is to charge under s 6(1)(e), with the charge worded so as to exclude “of or over 18 years of age” because, although those words are contained in the section, they are not an element of the charge under s 6(1)(e) but instead serve to demonstrate that the allegation is not the aggravated one of supplying young people under s 6(1)(d).

[26]            The Crown submits the facts of the present case demonstrate the absurdity that would result if the appellants’ contention that the prosecution has to prove age in these circumstances was correct. The appellants are admitted drug dealers, but their position is that they cannot be guilty of a dealing offence because the prosecution cannot prove that they were not committing the more aggravated form of the offence. Following that to its logical conclusion, the Crown submits, would mean that a seller of kilograms of cannabis in a sophisticated commercial operation could never be guilty of a charge of selling cannabis where the age of the recipients is unknown. That is an affront to common sense and cannot have been Parliament’s intention. The Crown submits that it is no answer that there is another available charge under s 7(1)(b) because its maximum penalty of three months’ imprisonment shows that it is neither intended nor appropriate for commercial offending. I accept these submissions.

[27]            For the reasons advanced by the Crown, I am satisfied that the Judge was correct to find that the age of persons sold to was not an element that had to be established. Age is of relevance only when it is a matter of supplying drugs to a person or persons under the age of 18, supplying under the Act not being limited to just selling but also including distributing or giving. This is because distributing or giving drugs to a person of that age is a more serious offence than doing so for persons aged 18 or above. However, when the offence is that of selling or offering to sell drugs, or having drugs in his or her possession for the purpose of sale, this is an offence regardless of the recipient’s age.

[28]            It was not part of the prosecution case, nor suggested by either of the defendants, that the aggravated form of the offence, namely sale to persons under the age of 18 applied. When the prosecution does not allege the aggravated offence, the age of those to whom the drugs are sold is irrelevant. As Mr Walker, for the Crown noted, if that were not the case, when the persons to whom the drugs were sold was unknown, even in the largest and most sophisticated of drug selling operations, the only offence which an admitter seller of drugs could be convicted was one under s 7 with a maximum penalty of three months’ imprisonment.

Result

[29]            I am satisfied that the Judge made no error in his decision. The age of the persons sold to was irrelevant and not an element that the prosecution was required to prove.

[30]Accordingly, the appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor’s Office, Napier for Crown

Counsel:

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