BUCKERIDGE v R [2004] NZCA 27 (23 March 2004)

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BUCKERIDGE v R [2004] NZCA 27 (23 March 2004)

Last Updated: 1 April 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA340/03

THE QUEEN



v



TIMI REWIRI BUCKERIDGE

Coram: McGrath J
William Young J
O'Regan J

Counsel: Appellant in person
A Markham for Crown

Judgment (On the papers): 23 March 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]

This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions from the appellant and the Crown, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Background

[2]	In January 2001 the appellant was living in a house situated on a hill in substantial bush near Whakatane.
[3]	The police searched the house and the adjoining property on 26 January 2001. In the course of this search they located, inter alia:

1. In scrub, but near the house, 11 cannabis plants (approximately 1.5 metres high).
2. Further away from the house, five plastic sacks. These contained approximately 1.5 kgs of cannabis material of a quality commonly used for making cannabis oil. Also in the sacks were items of equipment customarily associated with the production and marketing of cannabis oil (including pressure cookers, stocking material and empty Myadec capsule containers). The sacks also contained a number of cans. The cannabis plant material had the appearance of having been subjected to at least one "rinse" for the purposes of the production of cannabis oil but it is not unusual for such material to be given two rinses. On the basis of what was found it was open to inference that the cannabis plant material was intended to be subjected to another rinse for the purpose of extracting more cannabis oil. The appellant’s fingerprints were found on one of the pressure cookers and one of the cans.
3. Further away still from the house, 355 cannabis plants of between 1.5 metres and 3 metres in height growing in five well-tended cannabis plots ("the uphill plots"). They had been staked using green and white string and red ribbon. Water containers (some of which contained Bio-Gold fertiliser in solution) were also located.
4. In the house many items commonly associated with cannabis offending: three sets of scales, a roach, cannabis residue, a ceramic dish which had been used to produce cannabis oil, empty Myadec capsules which had once contained cannabis oil, a hydroponics unit and a cannabis bong. As well the police found fertiliser (including Bio-Gold), green and white string and red ribbon. The white string was unused but was in wrapping similar to that found in a 4 wheel drive vehicle associated with the appellant. The green string and red ribbon found at the house corresponded to the green string and red ribbon found at the uphill plots and the white string was similar to some of the white string found there. Also found in the 4 wheel drive vehicle were cannabis leaf residues. More cannabis was found in another vehicle at the address. Water containers similar to those found at the uphill plots were located near the house.

[4]

When interviewed by the police the appellant denied growing any of the cannabis plants which had been found. He denied any responsibility for what was found in the plastic sacks. He accepted the cannabis material found at the house was probably his and that he had used cannabis and cannabis oil. He explained away the horticultural material and equipment found at the house on that basis that it had been bought for growing vegetables and maize. He claimed to have been spending a good deal of time in Auckland although he was vague as to where. He also claimed to have had a boarder but was vague about him too. He had no substantial explanation for his fingerprints on the pressure cooker and can found in the plastic sacks save that he must have been set up.

[5]

The appellant was indicted on five counts which alleged that:

1. Between 31 October 2000 and 26 January 2001 he had produced cannabis oil (count 1).
2. Between the same dates he had cultivated cannabis (count 2). This count related to both the 11 plants found near the house and the 355 plants found in the uphill plots.
3. On 26 January 2001 he had in his possession equipment capable of being used in the production of cannabis oil with the intention that the equipment be so used (count 3).
4. On the same date he had in his possession cannabis leaf capable of being used in the production of cannabis oil with the intention that the material be so used (count 4). This count focused on the cannabis found in the plastic sacks.
5. An unrelated charge of receiving (count 5).

[6]	The appellant was discharged under s347 on counts 3 and count 5. He pleaded guilty to counts 1 and 2, and not guilty to count 4. He elected to be tried by Judge alone on count 4. The Judge was required to deal also with disputed issues of fact associated with counts 1 and 2.
[7]	The appellant’s position at trial was that he had cultivated 11 cannabis plants found to the north of his house and that he had engaged in some minor and largely non-commercial production of cannabis oil. He denied any responsibility in relation to the material found in the plastic sacks or the cannabis growing in the uphill plots.
[8]	The key issues for the Judge to resolve were:

1. Whether the appellant was guilty in relation to count 4.
2. Whether the appellant had cultivated not only the 11 plants of cannabis found near the house but also the 355 plants found further up the hill.
3. Whether the appellant’s production of cannabis oil was commercial in nature.

The Crown case at trial

[9]	The Crown case was formidable, to say the least:

1. The appellant had been living on the property since early 2000.
2. Given the nature of the country, vehicle access to the uphill plots and the place where the plastic sacks were located required the use of a 4 wheel drive vehicle.
3. A vehicle track led away from the house and the plastic sacks and uphill cannabis plots were found on foot-tracks which led away from that vehicle track.
4. The uphill cannabis plots had required constant attention, necessitating visits every 2 or 3 days for watering and the like. It was unlikely, to say the least, that other people could have cultivated these plots without the appellant knowing about it.
5. The appellant had a 4 wheel drive vehicle in the rear of which the police found cannabis leaf residue.
6. Green string and red ribbon found at the house corresponded to green string and red ribbon which had been used to stake the plants in the uphill cannabis plots. The white string that had been used was of the same type as the unused ball of white string found in the house.
7. Bio-Gold fertiliser was found at the house and some of the water containers found at the uphill cannabis plots contained Bio-Gold in solution.
8. The appellant’s fingerprints were on a can and pressure cooker found in the plastic sacks.
9. The appellant’s landlord and the previous tenant of the property each gave evidence to the effect that they were not involved in the cannabis being cultivated in the uphill plots and had no responsibility for what was found in the plastic sacks.

The defence case at trial

[10]

At trial the appellant’s evidence differed somewhat from what he had told the police in that he admitted that the 11 cannabis plants found near the house belonged to him. He also admitted production of cannabis oil which he claimed was substantially for his personal use although he acknowledged that he may have sold a few capsules. He maintained his denial of any involvement with the material found in the plastic sacks or the uphill plots.

[11]

He was not able to give any specific explanation as to the green string or the red ribbon which was found in his house. He was not sure how it came to be there. He was not sure how the cannabis came to be on the back of his four wheel drive truck, save that he suggested could have been some of his own cannabis (ie from the 11 plants). He denied knowledge of the cannabis found in the other vehicle.

The approach of the trial Judge

[12]	The trial Judge rejected the appellant’s evidence. He concluded that the appellant had been responsible for the cultivation of all the cannabis plants that were found and was likewise responsible for the contents of the two black plastic bags.
[13]	He was satisfied that the appellant had been in possession of the cannabis leaf found in the plastic bags for the purpose of production of cannabis oil and thus found him guilty on count 4. On the issues of disputed fact which he was required to resolve he found that the appellant’s production of cannabis oil (count 1) and cultivation cannabis (count 2) were commercial in nature.
[14]	He subsequently sentenced the appellant to a total of four years and three months imprisonment.

The appellant’s submissions to this Court

[15]	In his written submissions in support of his appeal the appellant said that the uphill plots were grown by a "syndicate of gang members" who approached him around October 2000 and told him that they were growing marijuana on the hill. He says that he was threatened by the gang members. He did not, in these submissions, specifically address the material found in the plastic sacks.
[16]	In his notice of appeal the appellant also maintained that his Maori customary rights had been denied; a point which he did not develop in his written submissions.

The submissions for the Crown

[17]	The submissions from the Crown referred to the evidence and invited us to conclude that the findings made by the Judge were well open to him.

Discussion

[18]	We see nothing in the appeal.
[19]	The issues which the Judge resolved against the appellant were purely factual. There was, indisputably, a substantial factual foundation for the findings which the Judge made. In his evidence at trial the appellant did not square up to the central elements of the Crown case and the findings the Judge made were inevitable.
[20]	The explanation now advanced by the appellant is, in effect, his third explanation and it differs (at least in degree) from what the appellant said at interview and what he told the Judge at trial. Further, the appellant has still not addressed many of the key features of the Crown case, particularly the contents of the plastic sacks, his fingerprints, the string and ribbon and the fertiliser.

Disposition

[21]	In those circumstances, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington