Ekins v R [2017] NZCA 518 (16 November 2017)

Last Updated: 23 November 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA400/2017 [2017] NZCA 518
BETWEEN	ANTHONY NELSON EKINS Appellant
AND	THE QUEEN Respondent

Hearing:	13 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	C G Tuck for Appellant Z R Johnston for Respondent
Judgment:	16 November 2017 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
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REASONS OF THE COURT

(Given by Harrison J)

[1] The appellant, Anthony Ekins, was found guilty following a trial before Judge Ingram and a jury in the District Court at Tauranga on charges of possessing methamphetamine for supply and cannabis for supply. He was convicted and sentenced to five years’ imprisonment.^[1] He appeals against his conviction on the methamphetamine charges only on the ground that the verdicts were against the weight of evidence and therefore unreasonable.
[2] The essential facts are not in dispute. The police executed a search warrant on Mr Ekins’ home in Tauranga in April 2015. They found a large amount of dried cannabis located in different parts of the house. Mr Ekins accepted that the cannabis was his. His defence at trial on the charges of possessing cannabis for supply was that the drugs were for his personal use. The jury’s verdicts reflect its rejection of that contention.
[3] The police executed a second warrant at the same address in July 2015. They found further cannabis and, in the same upstairs room where some of the cannabis had been found in April, a blue container. Inside that container were a number of items. There were 22 grams of methamphetamine (with an estimated street value of $30,000), unused snap-lock bags and a glass methamphetamine pipe. His property was protected by a CCTV security system. At trial Mr Ekins again accepted that he had possession of the cannabis on this occasion but asserted that the drugs were for his personal use.
[4] Mr Ekins denied possession of the methamphetamine. When asked by a police officer about whether his fingerprints would be found on the methamphetamine, he responded “not sure”. Following his arrest, police staff at the District Court removed $2,772 in cash from Mr Ekins. Mr Ekins explained the cash at trial as representing the proceeds of sale of a Subaru motor vehicle. He said he did not disclose its existence when he was earlier arrested because “it’s going to be assumed that it’s from drug dealing”.
[5] Mr Ekins’ defence at trial was that the drugs belonged to a visitor at his house, one Peter Holland. Mr Ekins was downstairs with his baby in the lounge when the police arrived to execute the search warrant. Mr Holland was upstairs in the bedroom where the methamphetamine was found. He was also in possession of a methamphetamine pipe.
[6] Mr Tuck, who did not appear for Mr Ekins in the District Court, effectively adopts and repeats Mr Ekins’ trial defence as the ground for appeal. He says the only evidence linking Mr Ekins to possession of the methamphetamine was its discovery in his home. He says the Crown could not exclude beyond reasonable doubt that Mr Holland was in possession of the methamphetamine.
[7] We reject this ground of appeal. The methamphetamine was found in a room in a house which Mr Ekins occupied. It was located in the same area where he was drying cannabis found at the first search. The discovery of a large quantity, his equivocal response to the police of “not sure” about his fingerprints, the existence of the CCTV security system, and his possession of $2,772 in cash are all available circumstances supporting the Crown case.
[8] Moreover, as the Judge correctly directed the jury, it was an available inference from the facts that Messrs Ekins and Holland were in joint possession of the methamphetamine. And the jury’s unchallenged guilty verdicts on the cannabis charges reflect its rejection of Mr Ekins’ denial that he possessed large quantities of unlawful drugs for supply. It was open to the jury to reject Mr Ekins’ exculpatory denial on the methamphetamine charges also and find beyond reasonable doubt that he was in possession of the methamphetamine, and for the purpose of supply. We agree with Ms Johnston for the Crown that this appeal does not approach the high threshold for interfering with guilty verdicts on the ground of unreasonableness.^[2]

Result

[9] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Ekins [2017] NZDC 3143.

^[2] See R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.