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The Queen v Robertson

The Queen v Robertson

Case [2009] NZCA 154 29 April 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA631/2008
[2009] NZCA 154
THE QUEEN
v
JOHN ALLAN ROBERTSON
Hearing:22 April 2009

Court:Ellen France, Heath and Fogarty JJ
Counsel:J K W Blathwayt for Appellant

M E Ball for Crown

Judgment:29 April 2009 at 3 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]       Mr Robertson was tried in the District Court at Wellington, before Judge Kelly and a jury, on two charges relating to the Class C controlled drug, cannabis. The first, a representative charge, alleged that Mr Robertson sold dried cannabis plant material to persons unknown between 17 November 2006 and 24 April 2007. The second alleged that, on or about 24 April 2007, Mr Robertson had cannabis plant material in his possession, for the purpose of sale.
[2]       The jury returned verdicts of guilty on both charges. Mr Robertson was convicted and sentenced to an effective term of imprisonment of two years and nine months.
[3]       Mr Robertson appeals against both conviction and sentence.
Outline of relevant facts
[4]       Between 17 November 2006 and 24 April 2007, Mr Robertson’s home at Featherston was under covert surveillance by Police. The surveillance involved the use of a video camera situated at an unspecified location in proximity to the house. The premises were observed on 72 out of 158 days. During that period, the Police observed a total number of 720 visits to the property. Of those, 298 were visits of less than one minute in duration. A further 227 lasted less than five minutes. That meant that only 195 (or 27 per cent) of the visits were of a duration of more than five minutes. It is clear that at least some of the visits must have been legitimate.
[5]       At 8 am on 24 April 2007, Police executed a search warrant at the Featherston property. Two tick lists were located, together with cannabis packaged for sale, extra bags for packaging cannabis and cellphone messages consistent with the sale of cannabis. There was no evidence of actual sales.
[6]       The quantity of cannabis located was relatively small; a total of four grams. It was packaged in four re-usable bags, each containing one gram of cannabis plant material.
The convictions appeal points
[7]       Two grounds of appeal are pursued:
(a)       The verdicts were unreasonable.
(b)Evidence about what was captured on the videotaped surveillance was wrongly admitted.

Mr Blathwayt, for Mr Robertson, contends that, individually or cumulatively, the errors amount to a miscarriage of justice.
[8] Mr Blathwayt submits that the convictions were contrary to the weight of evidence. The critical point relates to inferences that were available to the jury. Mr Blathwayt submits that there was insufficient evidence for the jury to infer that Mr Robertson had possession of cannabis for sale and was selling cannabis from the property.
[9] The evidential point is based on the refusal of the Police to make…

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.

Continue reading The Queen v Robertson

Details

AGLC: The Queen v Robertson [2009] NZCA 154
Case: [2009] NZCA 154
Decision Date: 29 April 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Robertson involved an appeal against both conviction and sentence. Mr Robertson was convicted in the District Court on two charges related to the sale and possession of cannabis. The jury found him guilty on both counts, and he was sentenced to two years and nine months in prison. The appeal against both conviction and sentence was dismissed. The primary legal issues were whether the verdicts were unreasonable and if the evidence about the videotaped surveillance was wrongly admitted. The court held that the convictions were not unreasonable, as there was sufficient evidence for the jury to infer guilt. Additionally, the court found that the refusal to disclose the videotaped surveillance did not prejudice the fairness of the trial, as there were other means for Mr Robertson to provide explanations for the visits to his property. The appeal against the sentence was also dismissed, as the sentence imposed was deemed appropriate given the nature of the offenses.

The final orders of the Court of Appeal were to dismiss the appeals against both conviction and sentence, thereby upholding the original decisions made in the District Court.

Orders