McCaskill v Police [2012] NZHC 2941 (7 November 2012)

Last Updated: 16 November 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-62 [2012] NZHC 2941

EVELYN VERA MCCASKILL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 November 2012

Counsel: Appellant in person

J Tarrant for Respondent

Judgment: 7 November 2012

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal out of time

_{and on appeal against conviction and sentence]}

EVELYN VERA MCCASKILL V NEW ZEALAND POLICE HC HAM CRI-2012-419-62 [7 November 2012]

[1] On 15 February 2012, the police executed a search warrant at Ms McCaskill’s home address. When they searched the property they found two cannabis pipes, two spotting knives and a number of cannabis bullets. As a result of an interview that they conducted with Ms McCaskill, they charged her with being in possession of those items. So far as the cannabis was concerned, the police laid both a charge of possession for supply and a charge of possession simpliciter.

[2] Ms McCaskill pleaded not guilty to the charges, and on 21 May 2012 she attended a status hearing before Judge Burnett. She was represented at that hearing by a Hamilton solicitor, Mr Bates. At Mr Bates’ request, the Judge gave a sentence indication. She indicated that if a guilty plea was entered on that day, the sentence would be nine months supervision and 180 hours community work. Based on the sentence indication, Mr Bates entered a plea of guilty on Ms McCaskill’s behalf on all charges. The Judge then sentenced Ms McCaskill in accordance with the

indication.[1]

[3] Ms McCaskill now seeks leave to appeal out of time in respect of both conviction and sentence.

Ground of appeal

[4] Ms McCaskill says that she has always maintained that she was not guilty of the charge of being in possession of cannabis for supply. She says she understood that the sentence indication and the guilty plea related only to the charge of being in possession of cannabis for her own use, and not the charge of being in possession of cannabis for supply. She also refers me to a letter dated 8 March 2012 that she sent to the Registrar at the Thames District Court. This makes it clear that she intended to plead guilty to all charges other than the charge of being in possession of cannabis for supply. She indicated in the letter that she proposed to enter a plea of not guilty

_{to that charge.}

[5] Ms McCaskill says that that remained her intention throughout, and that she never intended to instruct Mr Bates to enter a guilty plea to the charge of being in possession of cannabis for supply.

[6] This morning I have had the benefit of hearing evidence from both Mr Bates and Ms McCaskill. I am satisfied from Mr Bates’ evidence that he did his level best to ensure that Ms McCaskill knew exactly what was occurring during the status hearing. I am left, however, in a significant doubt as to whether Ms McCaskill understood that she was pleading guilty to the charge of being in possession of cannabis for supply. I am satisfied that there is a reasonably possibility that she believed that the sentence indication and the guilty plea related only to the charge of being in possession of cannabis for her own use.

[7] This is a matter of some significance, because I am satisfied that Ms McCaskill has an arguable defence to the charge of being in possession of cannabis for supply. This arises out of the explanation Ms McCaskill gave to the police when they interviewed her after searching her address. At that time she told the police that she and others in her area purchased cannabis together on a bulk basis. They did so because it was cheaper to do that rather than to purchase cannabis individually. The cannabis purchased in that way was then divided between those who contributed to the cost of its purchase. This is broadly in line with what Mr Bates advised the Judge during the course of the status hearing.

[8] Mr Bates accepted that he was not aware of Ms McCaskill purchasing the cannabis herself and on-selling it to others for profit or, indeed, on-selling it at all. He was aware that there was an arguable defence to the charge based on the fact that the provision of cannabis to those who had participated in its purchase amounted to a supply, and not a sale. If that was the case, it would not amount to an offence in terms of ss 6(1)(f) and 6(2) of the Misuse of Drugs Act 1975. Mr Bates understood that Ms McCaskill wished to plead guilty to all charges, however, in order to bring them to a conclusion.

Result

[9] In those circumstances I am satisfied that a miscarriage of justice has occurred. I grant leave to appeal out of time and allow the appeal against conviction on the charge of being in possession of cannabis for supply. That charge is remitted to the District Court for re-hearing.

[10] The convictions on the other charges will stand. Clearly, however, the sentence that the Judge imposed related principally to the charge of being in possession of cannabis for supply. For that reason it is appropriate to quash the sentence imposed on all the charges. The issue of penalty on the charges other than the charge of being in possession of cannabis for supply can be determined once the

_{District Court has dealt with that charge.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Copy to: Appellant

---

[1] Police v McCaskill DC Thames CRI-2012-075-150, 21 May 2012.