Heemi v R [2018] NZCA 359 (10 September 2018)

Last Updated: 10 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA84/2018 [2018] NZCA 359

	BETWEEN	SHANNON TAIMANIA HEEMI Appellant
	AND	THE QUEEN Respondent

Hearing:	24 July 2018
Court:	Gilbert, Courtney and Moore JJ
Counsel:	P J Kaye for the Appellant E J Hoskin for the Respondent
Judgment:	10 September 2018 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

[1] Following a three-day trial in the District Court at Manukau before Judge N Sainsbury, Shannon Taimania Heemi was convicted of unlawfully possessing a firearm.
[2] Ms Heemi now appeals her conviction on two grounds, both concerning alleged deficiencies in the question trail. The grounds are first, the question trail erroneously referred to Ms Heemi having to prove on the balance of probabilities that the firearm was in the “exclusive possession” of some other person whereas the statute only requires proof that it was in the “possession” of some other person; and secondly, the question trail failed to refer to an intention to exercise control over the firearm as part of the definition of possession.

Facts

[3] On 5 February 2015 the police were making an inquiry at Ms Heemi’s address in relation to property stolen in a burglary the previous day. Ms Heemi arrived at the address in her car while the police were still at the property. After seeing them she stopped a short distance away. The police approached her. They told her they were investigating a burglary and informed her they intended to search the house and her car under the Search and Surveillance Act 2012. This led Ms Heemi to volunteer that there was a gun in the car. The search which followed located a .22 calibre rifle in the boot.

Issues at trial

[4] At her trial Ms Heemi faced two charges: receiving stolen property^[1] and unlawful possession of a firearm. She was found guilty only of the firearm charge, which was laid under s 45(1)(b) of the Arms Act 1983. Section 45(1) provides that a person commits an offence if they carry or are in possession of a firearm without some lawful, proper and sufficient purpose. Section 66 creates a rebuttable presumption that the driver of a vehicle in which a firearm is found is in possession of that firearm.
[5] Ms Heemi ran two defences. Only the first, that she was not in possession of the firearm, is at issue on appeal.^[2] Ms Heemi’s case was that the person who committed the burglary, Mr Makiri, hid the gun in the boot of her car along with the property stolen in the burglary without her knowledge. Ms Heemi said she first noticed the gun earlier in the day. She had been at court. She went to retrieve her jacket from the car when she saw the tip of the gun. She said she freaked out and drove home wondering what she was going to do about it. When she arrived home and saw the police she immediately disclosed the gun’s existence.
[6] It was an agreed fact that Mr Makiri had pleaded guilty to and been convicted of possession of the firearm. Her trial counsel thus argued it was in Mr Makiri’s exclusive possession; he was the one who had hidden it in the car and was the one who had control over it and the intention to exercise control over it. And at no time from that point until the police discovered it did she exercise any control over it, or intend to.

The summing-up and question trail

[7] Addressing the question trail on the charge of unlawful possession of a firearm, which the Judge referred to as “the Stirling rifle” in his summing-up, the Judge said:

[W]e’ve got the three ingredients the Crown must prove and they’re accepted, so this is a slightly unusual situation, it’s agreed the Crown have got through the beyond reasonable doubt threshold and so we now turn to the defence having to prove on balance of probabilities, more likely than not. First of all is number 4 and that’s got two ingredients to it, each has to be shown on balance of probabilities the Stirling rifle was not her property, well that’s agreed, we know it is Mr Makiri’s, so I don’t think there’s any issue about that, so so far the defence are home on 4.1.

Then we come to the real issue on this one, the Stirling rifle was in the exclusive possession of some other person. Now we’re back to ideas of possession.^[[3]] It’s possible to have joint possession and joint possession to give an example is what I talked about before, someone gives you an item for safekeeping and says to you, “Could you leave this at your home and hold it until I come and get it?” Well the person who’s holding it at home has knowledge of it, they have control over it while it’s in their home and they intend to exercise control over it in their home. The person who gave it to them has knowledge of it, but they also have control over it because it’s conditional, “When I want it you give it back to me”, that’s control and they have got an intention to exercise control, “I’m going to come and get it back from you”. Both of those people are in possession of that item, so that’s quite a common situation where you can have this idea of joint possession. For this defence to succeed the defendant has to prove on balance that someone else had exclusive possession, meaning she had no possession of it, so either she didn’t know about it, she didn’t have control over it or she didn’t have intention to control it.

Well first of all it’s probably useful just to note this, possession, to take the situation of joint possession, can be temporary and it doesn’t have to be for any particular length of time. So if you find the rifle and you decide at some point, “I’m going to get rid of it”, up to the point you get rid of it you’ve got possession of it, that’s what the law is and the fact that it’s a short period of time doesn’t really matter. If you’ve got that rifle, you know it’s there, you’ve got control of it and you intend to exercise control of it, it could be five minutes, that will be enough.

So what’s really [in] issue here though is that what the defence says is that the rifle was hidden in the defendant’s car by Mr Makiri ... so she didn’t know it was there, and if she didn’t know it was there she doesn’t have possession of it and that means someone else had exclusive possession, Mr Makiri. But there came a time when she did look in the back of the car and she saw the rifle, so the defence case is that this was at Court and that she freaked out and so she drove back home. So what the defence is saying is well at that point she knew about it, she had control over it because she’s driving it in the back of her car but she hadn’t intended to exercise control because she was trying to work out, “Well what am I going to do about this?”, and when she first met up with the police she immediately disclosed the gun was there. So the defence say on balance you can accept that and if you accept that then she didn’t intend to exercise control over the rifle for that short period of time...

[8] The Judge then summarised the Crown case on this point: in short that she must have made an effort to conceal the rifle because the police had to pull a rug away to see it; that regardless of how long it was in her possession she was looking after it for Mr Makiri; and that she only disclosed it to the police because she knew they would find it anyway.
[9] In respect of the firearm charge the question trail distributed to the jury read:

Charge 2 – unlawful possession of a firearm

The Crown must prove beyond reasonable doubt:

1. The Stirling rifle was a firearm.

Accepted in the Agreed Facts, go to question 2

2. The Stirling rifle was found in the boot of the Dodge Nitro.

Accepted in the Agreed Facts, go to question 3

3. The defendant was the driver of the Dodge Nitro, immediately prior to it being searched by the police.

Not in dispute, go to question 4

If so, the defendant should be found guilty unless:

4. The defendant proves on the balance of probabilities, ie that it is more likely than not that:

4.1 the Stirling rifle was not her property; and

If the answer is yes to 4.1 go to question 4.2

If the answer is no to 4.1, go to question 5

4.2 the Stirling rifle was in the exclusive possession of some other person

If the answer is yes to 4.2 find the defendant NOT GUILTY

If the answer is no to 4.2, go to question 5

5. The defendant proves on balance of probabilities, ie that is more likely than not, that she had the Stirling rifle for some lawful, proper and sufficient purpose.

If the answer is yes to 5 find the defendant NOT GUILTY

If the answer is no to 5, find the defendant GUILTY

The requirement of exclusive possession

Appellant’s submissions

[10] This issue focuses on the requirement in Question 4.2 of the question trail that the appellant prove the firearm was in the exclusive possession of some other person. Mr Kaye, who was not counsel at trial, submitted the Judge erred by requiring the appellant to show the firearm was in Mr Makiri’s “exclusive possession”.
[11] Section 66 of the Arms Act is central to this issue. It creates a rebuttable presumption of possession in cases such as this:

66. Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive found therein

For the purposes of this Act every ... driver of any vehicle on which any firearm, ... is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, ... unless he proves that it was not his property and that it was in the possession of some other person.

[12] Mr Kaye accepted that in his summing-up the Judge correctly directed the jury on what the appellant was required to prove on the balance of probabilities: first that the firearm was not the appellant’s property; and secondly, that it was in the possession of someone else, in this case Mr Makiri. He also accepted, as is evident in the passage above at [7], that the Judge described the term “exclusive possession of some other person” as meaning Ms Heemi had no possession of the firearm; that she either did not know about it, or if she did she did not have control over it and did not have an intention to control it.
[13] Mr Kaye nevertheless submitted that the formulation used by the Judge in the question trail erroneously required Ms Heemi to prove that the firearm was exclusively in the possession of someone else. Mr Kaye described such a requirement as setting a high barrier which Parliament never intended and which was not reflected in the plain words of s 66. The consequence of such a direction, he said, is it fails to accommodate the possibility that another or others may hold possession jointly.
[14] He also advised us that judges in the District Court are regularly directing juries under s 66 that the defendant must prove the firearm was in the “exclusive possession” of someone other than the defendant. The practice of requiring “exclusive possession” by another to be proved in order to discharge the s 66 onus stems from Hooper v Police, where Tipping J observed that the exclusive possession by some other person is what the section must mean when it refers to possession.^[4] This decision was applied in R v Wickliffe, in which this Court said in respect of s 66:^[5]

[T]he only remaining issue was whether there was any evidence to establish that the pistol was in the possession of some person other than Mr Wickliffe on 8 March 2008. That required Mr Wickliffe to prove that the pistol, when it was in the spare room at Arawa Avenue, was in the possession of some other person to the exclusion of possession of Mr Wickliffe (since joint possession would still be possession).

[15] Mr Kaye submitted such a requirement in this case was unnecessary and in fact misleading: Wickliffe was decided on its own facts in a case where the defendant had relocated a gun placed in his car without his knowledge to a place known only to him. More fundamentally, he submitted the question trail provides the enduring record of directions which the jury relies on during its deliberations. Because Question 4.2 required the appellant to prove that the firearm was in the exclusive possession of some other person, it reintroduced the potential for error on the part of the jury despite the directions in the summing-up. Namely, the jury was required to be satisfied the firearm was in Mr Makiri’s possession exclusively rather than in Mr Makiri’s possession, and perhaps another person other than Ms Heemi.

Analysis

[16] Section 66 is explicit. The presumption of possession does not operate to the exclusion of liability of another. In Hooper v Police, a similar case, the appellant accepted he was in occupation of a building where a pistol was found. His defence was that the pistol was not his property but was in the possession of another, namely a woman who also occupied the premises and who had pleaded guilty to possessing the firearm. Tipping J said that assuming the appellant established the pistol as the woman’s property he then had to prove it was in the possession of some other person:^[6]

That effectively required him to establish, on the balance of probabilities, that he himself was not in possession of the pistol either alone or jointly with some other person. That is the inevitable corollary, it seems to me, of the way in which the final part of s 66 is expressed.

[17] Logically, in the present case it would not have been sufficient to discharge the presumption if Ms Heemi simply proved that the firearm was in Mr Makiri’s possession. As this Court said in Wickcliffe joint possession is still possession. Mr Makiri’s conviction for possession of the firearm was conclusive proof that he was in possession.^[7] There was never any suggestion that a person, other than Ms Heemi, may have been in joint possession with him. It was thus necessary for Ms Heemi to satisfy the jury that she was not in joint possession with Mr Makiri.
[18] Additionally, we agree with Ms Hoskin, for the Crown, that it was made plain at all stages of the trial what the expression meant in the context of the particular trial. This was a very short trial. “Exclusive possession” was an expression used by the Crown prosecutor, defence counsel and the Judge throughout. As is evident from [7] above, and reading the summing-up as a whole, the Judge’s use of the words “exclusive possession” was explained and qualified in the factual context of the trial.
[19] Viewed in the context of the trial and against the background of the extensive directions given by the Judge, the use of the phrase “exclusive possession” in the question trail could not have led the jury into error. For these reasons we are satisfied this ground of appeal must fail.

Should the question trail have referred to an intention to exercise control over the firearm?

Appellant’s submissions

[20] Mr Kaye’s criticism under this ground of appeal was similar. He submitted that although the Judge mentioned the requirement for Ms Heemi to have an intention to exercise control of the firearm in his summing-up, it was omitted from the question trail. He submitted this issue formed a central part of the defence case and the failure to make express reference to it in the question trail gave rise to a real risk the outcome of the trial was affected.

Analysis

[21] As the excerpt at [7] reveals, the Judge referred to the requirement for “an intention to exercise control” when explaining the concept of possession. Then, when summarising the defence case, he noted that the defence was Ms Heemi “didn’t know it was there, and if she didn’t know it was then she doesn’t have possession of it”. Once Ms Heemi had seen the firearm in the boot, the Judge explained the defence’s case as Ms Heemi having control over the firearm because it was in the back of her car but no intention to exercise control, because she was thinking about what she was going to do with it. Additionally, the Judge had already given an extensive explanation of what amounts to possession in the context of the receiving charge. He pointed out, by reference to an analogy, that mere possession is not enough; there must also be an intention to exercise control over the property.
[22] While it would have been preferable for the question trail to include a section covering the elements which constitute possession in law, we are not satisfied that, having regard to the Judge’s comprehensive treatment of possession in the summingup, the jury would have been left in any doubt as to what constitutes possession, including the mental element. He also correctly placed this in context when explaining the defence case and the requirement of proving an intention to control.
[23] We do not consider that the omission to make an explicit reference in the question trail to an intention to exercise control over the firearm, particularly given the short duration of the trial, gave rise to a miscarriage of justice.

Result

[24] The appeal against conviction is dismissed.

Solicitor:
Crown Law Office, Wellington for Respondent

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^[1] This related to property taken in the burglary also found in Ms Heemi’s car.

^[2] Ms Heemi’s second defence was that if the jury found she was in possession, she had a lawful, proper and sufficient purpose.

^[3] The Judge had earlier directed on the meaning of possession. On this appeal it was accepted the Judge’s direction on that issue was correct.

^[4] Hooper v Police HC Christchurch AP253/93, 22 July 1993 at 9.

^[5] Wickliffe v R [2009] NZCA 504 at [19].

^[6] Hooper v Police, above n 4, at 4.

^[7] Evidence Act 2006, s 49(1).