Robinson v Police [2013] NZHC 3212 (3 December 2013)

Last Updated: 11 March 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000278 [2013] NZHC 3212

BETWEEN MICHAEL CHARLES ROBINSON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 December 2013

Appearances: Appellant in person

J Pridgeon for Respondent

Judgment: 3 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]

This judgment is delivered by me on 3 December 2013 at *** am/pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Meredith Connell, Auckland

And to: Appellant

ROBINSON v NEW ZEALAND POLICE [2013] NZHC 3212 [3 December 2013]

Introduction

[1] The appellant appeared before Judge L Tremewan in the Waitakere District Court on 12 June 2013 for a defended hearing on five charges; namely failing to remain stopped for an enforcement officer, providing false or misleading information to an enforcement officer, possession of cannabis, cultivating cannabis, and possessing utensils (a bong and three spotting knives) for the purposes of committing an offence under the Misuse of Drugs Act 1975.

[2] The relevant Informations record that all charges other than that relating to possession of utensils were dismissed. The Judge found that charge proved. The appellant has appealed against his conviction on the charge of possessing utensils, and the sentence of 50 hours community work and 12 months supervision imposed by Judge Tremewan the same day.

[3] The appellant’s appeal is on the following grounds:

(a) he was not provided with “full disclosure” until the day of the hearing,

and a request to stay the prosecution was declined by the Judge;

(b) even when he was provided with disclosure, it was not “full disclosure”;

(c) the Information on which he was charged alleged that he was found in possession of a needle and syringe, but no such utensils were found; and

(d) (as raised in a later communication from the appellant) that he was found guilty because he had not offered an explanation for the bong or spotting knives which were found. The appellant says that it was for the Police to prove that these items belonged to him, and they had failed to prove that, or that any illegal substance was intended to be consumed.

Evidence in the District Court

[4] In the District Court, evidence was given by Constables Whitefield and Johnson. Both were cross-examined by the appellant. Constable Whitefield said that he had pulled the appellant over at a checkpoint on 10 February 2012. He took details from the appellant, including the home address he gave. The appellant then drove off, without being permitted to do so. The constables then drove to the address the appellant had given but were told he did not live there. The occupant directed them to another address.

[5] At that address, the occupant directed the constables to a sleepout at the side of the house. The constables knocked on the door and were invited to come in. Upon doing so, the constables immediately smelt cannabis. They conducted a search under s 18(2) of the Misuse of Drugs Act. The police evidence was that they found a small bag containing two cannabis heads, a tin containing cannabis stalks, three spotting knives, and a used bong containing cannabis residue. Further, the police evidence was that in a separate wardrobe room they found six pots containing cannabis seedlings, and a further six larger cannabis seedlings growing under artificial lights and reflector shields. Their evidence was that this area had been fully lined with silver insulating paper.

District Court judgment

[6] While the Judge recorded on the relevant Information that she found the charge proved, there is no formal decision. The Judge’s sentencing is recorded in brief sentencing notes. When imposing the sentences of community work and supervision, the Judge also directed the appellant to undertake any assessment, course, counselling, programme, or treatment as directed by the probation officer.

Appeal against conviction

Timing of appeal

[7] The appellant was convicted and sentenced on 12 June 2013. Pursuant to s 116 of the Summary Proceedings Act 1957, an appeal could be filed within 28 days of that date. The appellant was, therefore, required to file his appeal on or before

10 July 2013. The notice of appeal was filed on 15 August 2013: approximately one month late. The appellant therefore requires leave to file his appeal. However, as the lateness of his appeal has not been raised by the respondent, I propose to grant leave to appeal.

Disclosure

[8] According to the District Court records, the appellant was originally represented by the Public Defender. He later chose to appear on his own behalf.

[9] The Court has received a statement from Constable Whitefield. I am satisfied that I may receive this evidence, as being relevant to an appeal issue. Constable Whitefield says in the statement that prior to the appellant’s first appearance in the District Court a disclosure package was provided to Ms Chan of the Public Defence Service. This is said to have contained the Informations, a summary of facts, the appellant’s conviction history, copies of the constables’ notebook entries, the drug exhibit form, a property record sheet, an infringement notice, an initial disclosure receipt, and a letter from the defendant. Full disclosure was sent to the appellant’s then counsel, Ms Pomeroy (also apparently of the Public Defence Service), and the appellant, on 10 August 2012. That comprised the previously listed material, together with a witness list and a copy of a jobsheet by Constable Johnson.

[10] Photographs taken on the night of the search, taken on a camera shared by a number of officers at the Henderson Police, could not be located. Constable Whitefield says that new photographs were taken of all the stored exhibits, and were available to be provided to the appellant on 4 October 2012. Constable Whitefield says that three attempts were required before the police were able to deliver the photographs to the appellant at his given bail address. Constable Whitefield says he eventually located the appellant on 13 November 2012. The appellant refused to accept the disclosure package, stating that it should have been given to him within ten days of his last Court appearance. Notwithstanding Constable Whitefield’s explanation that these were new photographs, the appellant continued to refuse to accept the package, which was then dropped through the doorway.

[11] Constable Whitefield says that as more documentation became available, he made further attempts to effect delivery of the disclosure material. On 24 May 2013 he undertook a bail check at the given bail address, and was told that the appellant had not lived there for some time, and had moved to the Thames area. Accordingly, the final disclosure documents could not be delivered until he appeared in the Waitakere Court for his hearing. The final documentation comprised the two briefs of evidence. Ms Pridgeon submitted that these were, in essence, no more than what had already been disclosed by way of notebook entries and jobsheets.

[12] The appellant has submitted strongly this morning that Constable Whitefield’s statement is not truthful and that he did not receive disclosed material. However, I note that many of the matters that are referred to by Constable Whitefield are included in his evidence, and in particular cross-examination, in the District Court. I have no reason to doubt the accuracy of Constable Whitefield’s evidence as to his efforts to effect disclosure.

[13] The prosecutor’s disclosure obligation is set out in s 13 of the Criminal Disclosure Act 2008. The prosecutor is required to give disclosure as soon as is reasonably practicable after a defendant has pleaded not guilty. I am satisfied that Constable Whitefield’s evidence establishes that the appellant received a significant level of disclosure on or before 12 November 2012, more than six months before his defended hearing. It also established that reasonable efforts were made to provide the appellant with further disclosure as it became available, but either the appellant refused to accept it (in the case of the photographs), or could not be provided with it, having left his bail address without advising the police.

[14] I add at this point that the appellant has submitted that he applied for a stay of the prosecution at the start of the hearing but this was not granted. There is no record of such an application on the Court record in respect of any of the Informations. Accordingly, I am left in some doubt as to whether such an application was made. In any event, if it were made, and refused, I am satisfied that the Judge was not in error in refusing it.

[15] In the circumstances, I am not satisfied that there was a breach of the police’s disclosure obligations and I am not satisfied that there was any other information or material that should have been disclosed to the appellant. I am unable to find any merit in this ground of appeal.

The Information

[16] The second point of the appellant’s appeal may be dealt with quite shortly. This was that he was charged with having a needle and syringe in his possession where, in fact, no evidence of needles or syringes was found.

[17] The Information charging the appellant with possession of utensils clearly states that he is charged that he:

... DID HAVE IN HIS POSSESSION A UTENSIL, NAMELY A BONG AND

3 X SPOTTING KNIVES FOR THE PURPOSE OF THE COMMISSION OF AN OFFENCE AGAINST THE MISUSE OF DRUGS ACT, NAMELY SMOKING CANNABIS.

[18] There is no error in the Information. The appellant referred, however, to documents which appear to have been sent to him after his conviction. These do refer to possession of needle/syringe. I have explained to the appellant that it is the Information which sets out the charge against him. Any other reference to a charge is based solely on computer records, produced by virtue of entering the section number under which he is charged. It is the Information which is determinative and I am satisfied that it charged him with possession of a bong and knives. The appellant’s appeal on this ground has no merit.

Was the charge proved?

[19] I now turn to the appellant’s argument that the charge was not proved.

[20] Before the appellant could be convicted of the charge of possession of utensils, the Judge was required to be satisfied that he first, was in possession of the utensils, and secondly, that such possession was for the purpose of consuming cannabis.

[21] I am not satisfied that the Judge was wrong to find the charge proved. To the contrary, I am satisfied that there was ample evidence for both elements of the charge. Constable Whitefield gave evidence as to being told that the appellant occupied the sleepout. Both he and Constable Johnson gave evidence that the appellant was the sole occupant of the sleepout. The bong (containing cannabis residue as identified by the Constables) and knives (which also showed having burnt tips) were found in the sleepout where the appellant was present. The evidence established the elements of possession which are physical possession, knowledge, and control. Ownership of the items, which the appellant contends the police did not prove, is not an element of possession.

[22] As to the purpose of possession, there was also ample evidence from which the Judge could infer that the appellant’s possession of the utensils was for the purpose of consuming cannabis. The police Constables gave evidence of cannabis residue on the bong, and burnt knife tips. That was sufficient for the Judge to infer that the purpose of possession of the bond and knives was for smoking cannabis. As with the previous grounds of appeal, I find that this ground of appeal has no merit.

[23] Accordingly, the appeal against conviction is dismissed

Appeal against sentence

[24] An appeal against sentence can succeed only if the appellant establishes that the sentence imposed was manifestly excessive. “Manifestly excessive” means outside the range of sentences available for the charge on which the appellant was sentenced.

[25] The maximum available sentence on the charge of possession of utensils is imprisonment for a term of up to 12 months, or a fine of up to $500, or both. The appellant has previous convictions for drug-related offending, the earliest being in

1996, the most recent being in 2009. For drug-related offending he has received sentences ranging from fines to imprisonment. I have concluded that there are no grounds on which it could be said that the sentence of community work and supervision was not within the range of sentences available to the Judge. I have concluded that the appeal against sentence has no merit and must also be dismissed.

Result

[26] Accordingly, the appellant is granted leave to appeal, but his appeals against conviction and sentence are both dismissed.

Andrews J