Richards v R [2013] NZCA 607 (3 December 2013)

Last Updated: 11 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA372/2013 [2013] NZCA 607
BETWEEN	DAMON ANTHONY RICHARDS Appellant
AND	THE QUEEN Respondent

Hearing:	19 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	K Clews for Appellant K A L Bicknell and A R van Echten for Respondent
Judgment:	3 December 2013 at 3:30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
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REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] On 5 March 2012, the police executed a search warrant at the appellant Damon Richards’ address. Inside the house, the police located cannabis and other items indicative of the consumption and production of cannabis oil. They found three ice cream containers in which there was cannabis leaf, two other containers and a small bowl all containing dried cannabis, an empty plastic isopropyl container, and an acetone container with a small amount of liquid. There was evidence that the basement of the house had been used as a growing room for cannabis, although it was not operative at the time of search. After the warrant had been executed, Mr Richards made certain comments to the police that appeared to be admissions that he had made cannabis oil and smoked cannabis.
[2] Mr Richards was convicted after a jury trial of possessing equipment for the cultivation of cannabis, producing cannabis oil, and possessing utensils for the cultivation of cannabis. The jury returned a not guilty verdict in relation to count one, which related to the cultivation of cannabis. He appeals against the convictions. There is no appeal against sentence.
[3] Mr Richards raised a number of points in his written submissions which were not pursued orally before us, and which had no merit. The only issue that was the subject of oral submissions to us from Mr Clews was whether the Judge’s summing-up had sufficiently distinguished between counts one and two. It was suggested in a brief submission that the Judge had overemphasised the evidence supporting count one when directing the jury in relation to count two, and there was a failure to differentiate sufficiently the evidence that related to each count. It was submitted that the separate charge direction was given too late in the summing-up.

Analysis

[4] The evidence in relation to both the cultivation count and the possession of equipment count was the same. This was the police evidence of the materials and equipment found in the house in an area where the police alleged the cannabis had been grown. The possession of these items, which could be used for the cultivation of cannabis, naturally supported both charges. There was nothing illogical or unfair in this common evidence being relied on.
[5] The jury’s verdict was not illogical. It was entirely understandable that the jury might not have been satisfied beyond reasonable doubt whether Mr Richards had cultivated cannabis despite the presence of the equipment and materials, but was satisfied that he knowingly had possession of equipment and materials capable of being used, and intended to be used, for its cultivation. Mr Richards had appeared to admit the latter but not the former.
[6] The Judge provided the jury with four question trails which required the jury to consider each count separately. In relation to count two, the jury were required to address the issues first of physical possession, and second, the intention in relation to that particular count. The jury had to find the required proof before it could convict in relation to that count, irrespective of the other counts. The summing-up was entirely adequate in this regard.
[7] We do not accept Mr Clews’ written submission that the separate counts direction must be given at the start of the summing-up. There is no rule as to when a separate counts direction has to be given, and it can be effective later in the summing-up. Moreover, the Judge directed on the need to prove “each” charge at [11] of an 89 paragraph summing-up.
[8] There was ample evidence before the jury to support the convictions, and no merit in the points taken on appeal.

Result

[9] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent