The Queen v Pope and Pope - [2008] NZCA 284

IN THE COURT OF APPEAL OF NEW ZEALAND
CA177/2008
CA191/2008
[2008] NZCA 284
THE QUEEN
v
CHERRIN BRIAN POPE
HEMI PAKI POPE
Hearing:24 July 2008

Court:Baragwanath, Chisholm and Heath JJ
Counsel:P J Butler for C B Pope

A S Greig for H P Pope
P K Feltham for Crown

Judgment:6 August 2008 at 4pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1]       Following trial before Judge McKegg and a jury in the District Court at Blenheim the appellants, who are brothers, were found guilty on charges of cultivating cannabis, possession of cannabis for sale, producing cannabis oil and possession of cannabis oil for supply. They were both sentenced to four years imprisonment.
[2]       Both appellants appeal against conviction on the grounds that there has been a miscarriage of justice because the Judge erroneously admitted into evidence:
(i)        A certificate of analysis.
(ii)The evidence of two police officers purporting to give expert evidence.

A further ground of appeal against conviction based on the absence of a lies direction was abandoned. Although both appellants also appeal against sentence, Hemi Pope only pursues his appeal against sentence if his convictions on counts 3 and 4 are quashed.
Background
[3]       On 3 April 2006 police officers executed a search warrant at a Marlborough rural property comprising around ten acres. It is Mäori land with multiple owners and both brothers have an interest in the land. The Crown alleged that at the relevant time the brothers were using the property as their base, with Cherrin Pope living in the cottage and Hemi Pope living in a garage adjacent to the cottage. Cherrin Pope was at the property when the search warrant was executed.
[4]       The police search revealed 40 cannabis plants ranging from one to one and a half metres in height growing at various locations on the property. Some of the cannabis was growing in a well fenced clearing. A total of 16 kilograms of dried cannabis head and 7.2 kilograms of dried cannabis leaf was located at various places on the property.
[5]       About 750 metres from the cottage the police located a bowl containing an oil-like substance in a derelict vehicle. On subsequent analysis the bowl was found to contain 9.6 grams of cannabis oil. An ESR certificate of analysis to that effect was admitted into evidence, and is not in issue.
[6]       A rectangular glass dish and scraper were found in an old stove under a lean-to by the cottage. This dish and scraper also contained the remnants of an oil-like substance. Three fingerprints on the bottom of the dish matched those of Cherrin Pope and one in the oil-like substance matched those of Hemi Pope. An ESR certificate of analysis relating to the remnants in this dish has given rise to the first ground of appeal.
[7]       As was their right, both appellants declined to make statements.
[8]       Shortly before the trial was due to begin…

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: [2008] NZCA 284
Decision Date: 6 August 2008

CaseChat Overview and Summary

The appeal in The Queen v Pope and Pope involved Cherrin Brian Pope and Hemi Paki Pope, who were convicted of cultivating cannabis, possession of cannabis for sale, producing cannabis oil, and possession of cannabis oil for supply. Both brothers appealed against their convictions and sentences, although Hemi Pope limited his appeal against sentence to the condition that his convictions on counts 3 and 4 were quashed. The primary issue was whether the admission of certain evidence by the trial judge led to a miscarriage of justice. Specifically, the appellants contested the admissibility of a certificate of analysis and the evidence of two police officers who purported to be expert witnesses. The court had to determine whether the trial judge correctly admitted the evidence and whether any errors in admitting the evidence resulted in a miscarriage of justice.

The Court of Appeal held that the certificate of analysis was inadmissible because the trial judge erroneously admitted it without the necessary notice to the defendants, as required by the Misuse of Drugs Act. This error was fatal to the admissibility of the certificate. Regarding the police officers' evidence, the court found that while one officer's evidence was inadmissible due to insufficient expertise, the other officer's evidence was admissible as he qualified as an expert. Despite these errors, the Court of Appeal concluded that the convictions would have stood even without the erroneous evidence, as the overall evidence against the appellants was overwhelming. The court applied the proviso to section 385(1) of the Crimes Act, which allows the court to dismiss an appeal if no substantial miscarriage of justice occurred. Therefore, the appeals against conviction were dismissed.

Regarding the sentence, the Court of Appeal found that the trial judge appropriately sentenced both brothers to four years imprisonment, considering the nature of the offences and the absence of mitigating factors. The appeals against sentence were also dismissed. In summary, the appeals against both conviction and sentence were dismissed.

Orders