HURRING v NEW ZEALAND POLICE [2017] NZCA 78

HURRING v NEW ZEALAND POLICE [2017] NZCA 78 [24 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA550/2016[2017] NZCA 78BETWEEN ANGIE LEE HURRINGApplicantAND NEW ZEALAND POLICERespondentCourt: Winkelmann, Woodhouse and Collins JJCounsel: A J Bailey for ApplicantF G Biggs for RespondentJudgment:(On the papers)24 March 2017 at 3 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Ms Hurring seeks leave to pursue a second appeal against her convictions on two charges:(a) Possession of a pipe for the purpose of consuming methamphetamine.11 Misuse of Drugs Act 1975, s 13(1)(a) and (3); liable to a maximum penalty of one year'simprisonment or a fine not exceeding $500 or both.(b) Possession of cannabis.2[2] Ms Hurring was convicted of these offences by Judge Gilbert in the Christchurch District Court on 7 June 2016.3 She was sentenced to 60 hours of community work.4 Ms Hurring's appeal against conviction was dismissed by Nation J in the High Court on 12 October 2016.5Background[3] Ms Hurring's vehicle was stopped by the police at 1.40 am on 25 September2015. The vehicle was being driven by Ms Hurring's partner. Ms Hurring was in thefront passenger seat. Two male passengers were in the rear seats. The police smelt cannabis in the car. They undertook a search of the vehicle which revealed cannabis packaged in ziplock bags in the glovebox and boot.6 Ms Hurring was told by Constable Farrell that she would be searched and was asked if there was anything she wanted to disclose. She admitted she had a pouch bag under her clothing. That bag contained the methamphetamine pipe and a number of empty ziplock bags. Ms Hurring also removed $2,000 in cash from her bra.[4] Ms Hurring was taken to the police station where Constable Farrell says she produced a ziplock bag of cannabis from her bra. The ziplock bag of cannabis was similar to the ziplock bags found in the pouch bag. Ms Hurring said the pouch bag had been handed to her by one of the men in the back seat of the car and she thought money was inside the pouch bag. Constable Farrell said Ms Hurring told her she had taken possession of the bag in the mistaken belief that she was not likely to be searched by the police. Ms Hurring denied having said this. She said the ziplock bag of cannabis was located between her t-shirt and jersey and that it must have somehow travelled out of the pouch bag.2 Section 7(1)(a) and (2)(b); liable to a maximum penalty of three months' imprisonment or a finenot exceeding $500 or both.3 Police v Hurring [2016] NZDC 12425 [Conviction judgment].4 Police v Hurring [2016] NZDC 12410 [Sentencing notes] at [7].5 Hurring v Police [2016] NZHC 2424 [First appeal].6 That cannabis was not the subject of Ms Hurring's charges.District Court decision[5] Judge Gilbert found Ms Hurring's explanation of events "completely implausible".7 He concluded Ms Hurring knew the cannabis was in her bra and that she had possession of the methamphetamine pipe in the pouch bag for the purpose of consuming methamphetamine.8High Court decision[6] Nation J analysed each ground of appeal raised by Ms Hurring and reached the following key conclusions:(a) Judge Gilbert did not err in respect of any material factual findings.9(b) Judge Gilbert did not fail to determine the factual basis for his findings. There did not have to be contradictory evidence from otherwitnesses for the Judge to reject Ms Hurring's explanation.10(c) Judge Gilbert did not err in his assessment of the evidence. In particular, the absence of Ms Hurring's fingerprints on the ziplockbags and the presence of another person's fingerprints on those bagsdid not mean that Judge Gilbert had misconstrued the evidenceconcerning Ms Hurring's possession of the cannabis.11(d) Judge Gilbert had properly considered the possession of the pipe charge and correctly concluded Ms Hurring had possession of that pipe for the purposes of consuming methamphetamine.127 Conviction judgment, above n 3, at [10] and [35].8 At [38].9 First appeal, above n 5, at [20].10 At [34].11 At [36]–[37].12 At [49].Leave to appeal to this Court[7] Ms Hurring seeks to appeal to this Court on three grounds. She wishes to argue:(a) Nation J made factual errors.(b) Nation J misconstrued the requirements of s 13(1)(a) of the Misuse of Drugs Act 1975 concerning the purpose of the possession of pipe charge.(c) Nation J failed to properly assess the evidence when dismissing Ms Hurring's appeal.Alleged factual errors[8] In her application for leave to appeal Ms Hurring says Nation J misinterpreted the evidence concerning the absence of her fingerprints on the ziplock bags found in the pouch bag. In our assessment there is no merit to this aspect of the proposed ground of appeal. The fact Ms Hurring's fingerprints were not found on the ziplock bags and the presence of another person's fingerprints on those bags didnot mean Ms Hurring did not know about the cannabis or the methamphetamine pipe.[9] Ms Hurring takes issue with Nation J's interpretation of the evidence about who passed the pouch bag to Ms Hurring. There is also nothing in this point.The key issue at trial was whether Ms Hurring knew about the cannabis and the pipe.There was ample evidence to conclude she did know about those items.[10] Ms Hurring also challenges Nation J's interpretation of her evidenceconcerning whether or not she had told the police she was feeling unwell. Again, we see no basis for allowing a second appeal to pursue that particular issue.Misapplication of the law[11] The second proposed ground of appeal alleges Nation J misconstrued s 13(1)(a) of the Misuse of Drugs Act. However, a careful reading of Nation J'sdecision reveals that he fully understood that the offence required proof that Ms Hurring had possession of the pipe for the purposes of committing an offence against the Misuse of Drugs Act. Nation J specifically held:13In this instance, there was ample evidence on which the Judge could conclude that either Ms Hurring or those in the car with her intended the methamphetamine pipe would be used to consume methamphetamine.[12] There is no basis to the suggestion Nation J failed to address the key ingredients of s 13(1)(a) of the Misuse of Drugs Act.Adequacy of assessment of the evidence[13] The third proposed ground of appeal alleges Nation J failed to give adequateweight to Ms Hurring's explanation that the pouch bag had been handed to her justbefore the police search.[14] This proposed ground of appeal also lacks merit. Nation J explained in his judgment:[33] In relation to Ms Hurring's contention that she was an innocent person in all that happened the Judge found her evidence to be "completely implausible". On my reading of the evidence, it was a conclusion that hecould reasonably come to. It meant that her account of what happened andhow she came to be in possession of the bag with a pipe in it could berejected. Conclusion[15] Section 237(2) of the Criminal Procedure Act 2011 requires Ms Hurring to satisfy us that her appeal raises a matter of general or public importance or that a miscarriage of justice may have occurred or may occur if her appeal is not heard.Ms Hurring has failed to pass these high thresholds. We are satisfied Ms Hurring'sproposed appeal does not raise any matter of general or public importance and that13 First appeal, above n 5, at [49].no miscarriage of justice has occurred or will arise if Ms Hurring is not able to pursue a further appeal.[16] The application for leave to pursue a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent