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Court of Appeal of New ZealandLast Updated: 19 December 2011
IN THE COURT OF APPEAL OF NEW ZEALAND
CA128/05THE QUEENv
PAUL RODNEY HANSENHearing: 22 August 2005
Court: Robertson, Williams and Wild JJ
Counsel: S G Vidal for
Appellant
B J Horsley
and M F Laracy for Crown
Judgment: 29 August 2005
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JUDGMENT OF THE COURT
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The appeal against conviction is dismissed. The appeal against the sentence of three years’ imprisonment is allowed. The existing sentence is quashed and Mr Hansen is sentenced to two and a half years’ imprisonment.
____________________________________________________________________
REASONS
Introduction
[1] This is an appeal against conviction and sentence on one charge of being in possession of cannabis plant for a purpose specified in para (d) of subs (1) of s 6 of the Misuse of Drugs Act 1975.
[2] Mr Hansen pleaded guilty to a cultivation charge upon which he was convicted and discharged. He was found guilty by a jury on the other charge after trial in the Invercargill District Court in March 2005. On 8 April 2005 he was sentenced by Butler DCJ to 3 years’ imprisonment.
The appeal
[3] The appeal against conviction is advanced solely on the basis that this Court’s decision in R v Phillips [1991] 3 NZLR 175 is no longer good law with regard to the proposition that s 6(6) of the Misuse of Drugs Act imposes a legal or persuasive onus as opposed to an evidential onus on an accused. The appellant’s primary contention is that this Court should emulate the approach which commended itself to the House of Lords in R v Lambert [2002] 2 AC 545.
[4] The sentence was submitted to be manifestly excessive in and of itself, and particularly having regard to that imposed on a co-accused Anthony Charles Hill.
Facts
[5] On the afternoon of 26 May 2003, as a result of the activities of Mr Hill on drug related matters, police executed a search warrant under the Misuse of Drugs Act at Mr Hansen’s address in Glenorchy. When the police arrived, both Mr Hansen and Mr Hill were present.
[6] When questioned by the police, they advised that cannabis would be found on the premises. A small deal bag containing 2.2 grams and one cannabis cigarette was found on Mr Hansen, and Mr Hill had cannabis in his shirt pocket.
[7] A substantial amount of cannabis plant material was found lying on the floor of the garage where the men, prior to the police’s arrival, had been stripping dried cannabis from the plants and placing the head into buckets. Police found 225 grams of cannabis in one bucket and a further 150 grams in another. A further 1520 grams of cannabis material was found by the police including other head which had not then been stripped off.
[8] Mr Hansen told the police that the material belonged to Mr Hill and himself 50/50. There was dispute about the quantity and quality of the additional material and how much could be considered as worth $300 per ounce. The Judge sentenced on the basis that Mr Hansen’s share was worth about $4,350 about which there could be no complaint.
[9] With regard to the cultivation charge, he told the police that he had grown the cannabis but refused to disclose the location.
[10] At trial, Mr Hansen gave evidence indicating that his share of the cannabis was solely for his own use. No complaint is made as to the manner in which the jury was directed about this in terms of R v Phillips. The explanation did not dissuade the jury from convicting. The sole issue is whether a direction in terms of R v Phillips was appropriate.
The legal framework of conviction
[11] Section 6(6) of the Misuse of Drugs Act provides that if accused persons possess more than 28 grams of cannabis plant, then they are deemed to have possession for the purposes of supply “unless the contrary is proved”. Mr Hansen’s appeal is advanced on the basis that, in light of recent rights-based jurisprudence, this provision should be interpreted as placing on the defendant an evidential burden only. That is contrary to the approach of this Court in R v Phillips which held that that section imposed a legal (balance of probabilities) burden of proof.
[12] Section 6 of the Misuse of Drugs Act provides:
6. Dealing with controlled drugs
(1) Except as provided in section 8 of this Act, 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) of this subsection.
...
(6) For the purposes of paragraph (f) of subsection (1) of this section, a person shall until the contrary is proved be deemed to be in possession of a controlled drug for a purpose set out in paragraph (c), paragraph (d), or paragraph (e), as the case may require, of that subsection if he is in possession of any of the following:
...
[(e) Five grams or more of any cannabis preparation as described in the Schedule 2 to this Act, or 28 grams or more of cannabis plant as described in the Schedule 3 to this Act ...]
[13] Mr Hansen was charged under s 6(1)(f). His position was that the cannabis in his possession was solely for his own use. However, since he had in his possession over 28 grams or more of cannabis plant, the presumption contained in s 6(6) was triggered, meaning that he was deemed to be in possession for the purposes of supplying or selling until the contrary was proved on the balance of probabilities.
[14] For the purposes of this appeal, the following provisions of the New Zealand Bill of Rights Act 1990 are also relevant:
- Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), -
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment –
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic way.
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
...
(c) The right to be presumed innocent until proved guilty according to law.
R v Phillips
[15] Phillips is a unanimous decision of this Court delivered in 1991 by Cooke P. The Judge noted that s 6 of the New Zealand Bill of Rights Act was an important section “but it has no application unless the enactment in question can be given a meaning consistent with the rights and freedoms contained in the Bill of Rights.” He recorded at 176 the submission for the appellant that:
the expression ‘until the contrary is proved’ could be taken to mean until some evidential foundation sufficient to create a reasonable doubt appears: that it could be interpreted in such a way as to cast on the defence, not the burden of proving anything in the sense of obtaining a finding of fact, but merely an evidential onus of tendering or pointing to some evidence which, if accepted, might create a reasonable doubt.
[16] The Court, however, held at 177:
we are not persuaded that the ordinary and natural meaning of the word “proof” or “proved” is capable of extending so far. To suggest that s 6(6) of the Misuse of Drugs Act can be read in the sense contended for is, in our view, a strained and unnatural interpretation which, even with the aid of the New Zealand Bill of Rights Act, this Court would not be justified in adopting.
The appeal was accordingly dismissed.
Appellant’s submissions
[17] The appellant submits that the law has evolved since Phillips. Ms Vidal submitted that, given the development of rights-based jurisprudence, the Court must have regard to the basic human rights that are protected by the New Zealand Bill of Rights Act and consider whether or not s 6(6) of the Misuse of Drugs Act can now be given an interpretation consistent with those rights.
[18] In support of this proposition the appellant cites R v Lambert, and some recent academic writings – Don Mathias “Criminal Fairness in the House of Lords” [2002] NZLJ 435 and John Burrows QC “The Changing Approach to the Interpretation of Statutes” (2002) 33 VUWLR 981.
[19] The appellant also prays in aid the following passage from R v Oakes (1986) 26 DLR (4th) 200 at 222:
In general, one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in section 11(d). If an accused bears the burden of disproving on the balance of probabilities an essential element of an offence, it would be possible for conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was true.
[20] It is said for the appellant that his case falls squarely within the situation envisaged in this passage and Ms Vidal submitted:
There was a reasonable doubt as to whether the accused was in possession of the cannabis for the purpose of supply. The accused was found guilty by the jury not because there was proof that he was going to supply cannabis but due to his inability to disprove he had the cannabis for supply.
Respondent’s submissions
[21] The Crown submits that there is no basis to reconsider Phillips. The phrase “unless the contrary is proved” is unambiguous and capable of only one meaning. The essence of the Court’s reasoning was that “proof to the contrary” could not be read down to mean “point to or adduce some evidence”. There is a fundamental distinction in criminal law between “proof” and “evidence”. In support of this distinction the Crown refers to Stroud’s Judicial Dictionary of Words and Phrases, Cross on Evidence, and the decision of this Court in Machirus v Police [1983] NZLR 764. Greatest emphasis was placed, however, on the following passage concerning the distinction between “proof” and “evidence” from an English Court of Appeal case, R v Daniel [2002] EWCA Crim 959; [2003] 1 Cr App R 99, at 107-108:
We could not have construed section 352 as imposing only “an evidential burden of proof”, whatever that may mean, on a defendant. That is because, with respect to their Lordships’ obiter views in Lambert and the Court’s ruling in Carass, the words “if he proves” must, as a matter of plain English, mean more than the evidential raising of an issue for the prosecution to refute beyond reasonable doubt. See ... the following words of Lord Devlin, giving reasons for the advice of the Board in R v Jayasena [1970] AC 618 at 624C-E, PC (seemingly not cited in Lambert):
Their Lordships do not understand what is meant by the phrase “evidential burden of proof”... It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof.
[22] The point made in Daniel, the Crown submits, is that proof requires a standard, whereas the “evidential burden” is proof of nothing.
[23] The Crown also submits that the Phillips approach is consistent with an application of the subsequent interpretation enunciated in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 of such issues to the section. The first step requires the Court to identify the different interpretations which are “properly open”. If only one meaning is properly open then that meaning must be adopted. This Court has consistently emphasised that s 6 of the New Zealand Bill of Rights Act only authorises consistent meanings that can be “reasonably” (Ministry of Transport v Noort [1992] 3 NZLR 260 at 272 per Cooke P) or “properly” (Quilter v Attorney-General [1998] 1 NZLR 523 at 581 per Tipping J) given, or that are “fairly open” (Ministry of Transport v Noort [1992] 3 NZLR 260 at 286 per Hardie Boys J) and “tenable” (Moonen at [16] per Tipping J). Conversely, it does not authorise a “strained interpretation” (Ministry of Transport v Noort [1992] 3 NZLR 260 at 272 per Cooke P) or authorise a Court to “legislate” (Quilter v Attorney-General [1998] 1 NZLR 523 at 542 per Thomas J).
[24] The Crown submits that an interpretation of “unless the contrary is proved” that imposes an evidential burden on the defendant is not properly open.
[25] Further, the respondent submits that the approach taken in Phillips has been relied upon by Parliament in subsequent and recent amendments to the Misuse of Drugs Act which incorporate other drugs and presumption levels. This confirms that the legislature’s clear intention is to maintain the legal burden in s 6(6).
[26] In the alternative, the Crown argued that any inconsistency with the right to be presumed innocent is a justified limitation within s 5 of the New Zealand Bill of Rights Act because the presumption only comes into play once the Crown has not only proved possession, but possession of an amount prescribed by law as justifying the inference that the accused is supplying or selling.
Discussion
[27] The appellant argues that the law has evolved since Phillips was decided, although we note that there has been no change to the statutory regime in this time. Phillips is a post-New Zealand Bill of Rights Act decision. Section 6 of the New Zealand Bill of Rights Act requires the Courts to adopt a rights-consistent approach, but it does not enable the Courts to give statutory provisions meanings other than their natural and ordinary meaning where Parliament’s intention is clear and unambiguous, or meanings that they cannot bear on their face.
[28] On the other hand, we acknowledge that Phillips is pre-Moonen, which reviewed the approach of this Court to the interpretation of statutes consistently with the New Zealand Bill of Rights Act.
[29] In Moonen, Tipping J for the Court proposed at [17]-[19] a “helpful” five-step approach to the analysis and application of ss 4, 5, and 6 of the New Zealand Bill of Rights Act. The first step is to identify the different interpretations of the words of the other Act which are properly open. If only one meaning is properly open, then the Court must adopt that meaning. If more than one meaning is available, the second step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question. Having adopted that meaning, the third step is for the Court to identify the extent to which that meaning limits the relevant right or freedom. The fourth step is to determine whether the extent of the limitation as found is a justified limitation in terms of section 5. Tipping J sets out principles relevant to this determination which we do not need to consider in this case. The fifth and final step is to indicate whether the limitation is or is not justified.
[30] Later, in Moonen v Film and Literature Board of Review (No 2) [2002] 2 NZLR 754, Richardson P qualified these statements by emphasising the disclaimer with which [17] begins, stating:
Clearly, it was not intended to be prescriptive. “May” means may. The five-step approach may be helpful. Other approaches are open.
[31] The first step of the Tipping J approach requires the Court to identify the possible different interpretations of the words of the other Act which are properly open. In this case the words in question are “unless the contrary is proved”. The appellant does not definitively provide a phrase with which to define those words, but implies that such a phrase would be something like “unless the defendant can adduce or point to evidence which could induce a reasonable doubt.” This is how the evidential burden for which the appellant argues is normally described (see R v Kerr [1976] 1 NZLR 335, at 340).
[32] We are not persuaded that such a meaning is one which the phrase “unless the contrary is proved” can properly be said to bear. The word “proved” is fatal to the appellant’s argument. The idea of proof requires the party charged with the burden to show something to a persuasive standard. As was said recently by Lord Bingham of Cornhill in Attorney-General’s Reference No 4 of 2002: Sheldrake v DPP [2004] UKHL 43.
An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact.
[33] Raising an issue as to a particular element of a crime cannot be said to be “proof”. Therefore, the meaning advanced by the appellant is not “properly open”, “tenable”, “reasonable” or any of the other descriptions mentioned earlier. The Court is bound to adopt the only meaning available, that of a legal burden beyond the balance of probabilities.
[34] The appellant relied heavily on R v Lambert in which the House of Lords held that a similar provision imposed only an evidential burden on the appellant in light of s 3 of the Human Rights Act 1998 (UK).
[35] The persuasive value of Lambert in this case rests on a comparison of first, s 3 of the Human Rights Act 1998 (UK) with s 6 of the New Zealand Bill of Rights Act, and second, of the provisions in the relevant drug legislation which cast a reverse onus on the defendant.
[36] The majority of their Lordships found that s 3 of the Human Rights Act required an interpretation of the section as only imposing an evidential burden on the defendant.
[37] Section 3 of the Human Rights Act 1998 (UK) provides:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
[38] The words of s 6 of the New Zealand Bill of Rights Act require the Courts, wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, to prefer that meaning.
[39] The respective provisions require different judicial approaches. The New Zealand Bill of Rights Act permits the Courts to consider only meanings which “can”, in the sense of “properly” or “reasonably” be applied to the provision in question. The UK statute requires the Courts to search for other “possible” meanings in order to give effect to a provision in a Convention-complaint way. The latter is much broader.
[40] This is borne out by the comments of Lord Cooke of Thorndon in R v Director of Public Prosecutions (ex parte Kebilene) [1999] UKHL 43:
I must not conceal that in New Zealand the Glanville Williams approach was not allowed to prevail in R v Phillips [1991] 3 NZLR 175. But, quite apart from the fact that the decision is of course not authoritative in England section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message.
[41] In addition, but to like effect, Lord Steyn in R v A [2001] UKHL 25 said:
The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights.
[42] However, authority does exist to the contrary. The Mathias article cited by the appellant suggests that there is no material difference between the two sections. He argues that s 6 does not contain a “reasonable interpretation” limitation. In response it can be said that a reasonable interpretation limitation is implicit in the word “can”, but if not, then the consistent jurisprudence of this Court, from Noort, through to Quilter and Moonen requires that limitation, and the appellant does not challenge the basis of those decisions.
[43] The appellant also seeks support from the article by John Burrows QC which includes the comment that “the rights-conforming interpretation in Britain is more aggressive than it is here”. If that is the case, it is the result of the differences between s 3 of the UK statute and s 6 of the New Zealand Bill of Rights Act and does not advance the debate.
[44] Finally, we note the recent comments of the Supreme Court in Siloata v R [2005] 2 NZLR 145. There Elias CJ, in the joint judgment of Keith J and herself, said at [1]:
Under s6(6) of the Act, proved possession of 28 grams or more of cannabis plant raises a rebuttable presumption that possession is for the purposes of supply. The burden of rebutting the presumption is on the accused. He must satisfy the jury (or the judge, in a trial by judge alone) on the balance of probabilities that it is more likely than not that he was in possession of the drug for other, less culpable, purposes.
[45] There is no indication that the validity of reverse onus provisions such as s 6(6) of the Misuse of Drugs Act is in doubt. Nor do we read any such indication in the reasons of Tipping J for the majority at [26]:
In R v Phillips the Court of Appeal held that the onus created by s 6(6) of the Misuse of Drugs Act was a legal (or persuasive) onus not just an evidential one. As no argument was raised in this Court on that issue, we do not need to examine it and recent cases in England such as R v DPP ex parte Kebilene. There the now Lord Cooke of Thorndon expressed a different view, based in part on a perceived difference of substance between s 3 of the Human Rights Act 1998 (UK) and s6 of the New Zealand Bill of Rights Act 1990.
[46] We are not persuaded that we should depart from the clear approach in R v Phillips and accordingly the appeal against conviction must be dismissed.
Sentence appeal
[47] This is advanced on the basis that the sentence in and of itself was manifestly excessive having regard to the approach in R v Terewi [1999] 3 NZLR 62 and particularly that it was inconsistent with the approach adopted by another Judge in the sentence of Mr Hill with which Butler DCJ had been anxious to maintain parity.
[48] As this Court noted in R v Keefe CA274/02 28 November 2002, the categories referred to in Terewi are relevant to dealing offences. Both counsel agreed that this matter fell within category two of Terewi with a starting point in the range of two to four years.
[49] Although the jury rejected the explanation of Mr Hansen that the cannabis was for his own use, we acknowledge that there were none of the frequent indications of commercial activity found at his home.
[50] The Judge, because of some uncertainty of the evidence as to quality, fairly sentenced on the basis that there were less than eight cannabis plants but more than four, and that the value of the cannabis, if sold in ounce deal bags. Mr Hansen’s share was worth about $4,350.
[51] The Crown realistically and responsibly accepted that the starting point of three and a half years in Mr Hansen’s sentence was “probably on the high side”. We agree.
[52] Comparisons with other cases are so fact influenced as to have the potential to be misleading or distorting, but having regard to the approach adopted by this Court in R v Ridout CA120/02 19 September 2002, and R v Musgrove CA47/05 23 May 2005, we have reached the view that, in respect of the offending itself, a proper starting point would have been two years.
[53] That is, however, not the end of the matter. In 2000, Mr Hansen was sentenced to two years and nine months imprisonment for serious offending under the Misuse of Drugs Act. It is a matter of considerable aggravation that, relatively soon after the expiry of two years and nine months imposed for that criminality, Mr Hansen is again involved in this sort of offending. In our view that justified an uplift in the sentence to not less than two and a half years.
[54] We are conscious that the sentencing Judge allowed a discount of six months for what he described as ‘mitigating factors’. These were:
(a) his remorse;
(b) the difficulty of a prison sentence at his age; and
(c) the fact that a prison term will detract from his business.
[55] We are not persuaded that any of these are properly to be treated as mitigating factors calling for any discount. They are the inevitable consequences of further criminal offending by a person who was no stranger to the courts.
[56] It is instructive to consider a sentence of two and a half years imprisonment alongside the position of Mr Hill. The proper comparator in respect of Mr Hill’s offending was four years’ imprisonment. That was reduced by a quarter because of a plea of guilty, but such a factor has no relevance to Mr Hansen.
[57] Mr Hill was convicted not only of the same offending as Mr Hansen, but he had also pleaded guilty to an additional charge under the same section which involved 82 ounces of cannabis worth nearly $25,000 found at his address alongside many of the accoutrements of commercial dealing.
[58] Mr Hill had been convicted of the same offending as Mr Hansen in respect of their activities in 1999, but in addition he had earlier serious drug dealing convictions for which he had also received substantial terms of imprisonment.
[59] We are confirmed in our view that two and a half years’ imprisonment for Mr Hansen is appropriate when that exercise is carried out also.
Result
[60] The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence of three years’ imprisonment is quashed and a sentence of two and a half years’ is imposed in substitution.
Solicitors:
Berry & Co, Queenstown, for
Appellant
Crown Law Office, Wellington
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