HOLDEN v POLICE [2020] NZHC 680

HOLDEN v POLICE [2020] NZHC 680 [6 April 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-5[2020] NZHC 680BETWEEN IHAPERA SHAYNE HOLDENAppellantAND NEW ZEALAND POLICERespondentHearing: 2 April 2020Counsel: M L Dillon for AppellantA S Alcock for RespondentJudgment: 6 April 2020JUDGMENT OF BREWER JThis judgment was delivered by me on 6 April 2020 at 4:00 pmRegistrar/Deputy RegistrarSolicitors:Martin Dillon, Hamilton, for AppellantCrown Solicitor, Hamilton, for RespondentIntroduction[1] Ms Holden appeals her conviction for possessing cannabis for supply.[2] My task is to decide whether the first instance Judge erred in his assessment ofthe evidence to such an extent that a miscarriage of justice has occurred, or whetherfor any other reason a miscarriage of justice has occurred.1Background[3] As will become apparent, this is a rather unusual case. As a result, it isnecessary for me to set out the background in some detail.[4] Ms Holden was charged under s 6(1)(f) of the Misuse of Drugs Act 1975 ("theAct"). The offence description in the charging document is:Did have in her possession a Class C controlled drug, namely cannabis, forthe purpose of supply.[5] The circumstances giving rise to the charge are that on 28 September 2018 aman telephoned the police and reported that a woman had attempted to sell himcannabis in central Hamilton. An operator with the police communications sectioncontacted two constables who were patrolling in central Hamilton in a police car. Oneof them, Constable Monk, subsequently became the only witness at Ms Holden's trial.His evidence, relevantly, was as follows:(a) The officers were told by communications that a male informant hadtold them a female had attempted to sell him cannabis on VictoriaStreet. The description provided was that the female was wearing ablue hoodie with tight jeans and jandals.(b) On their way to Victoria Street the constables were told that the CityCameras operator said they had observation of a female matching thatdescription on their CCTV and that they had located her near the BPservice station on Victoria Street.1 Criminal Procedure Act 2011, s 232(2)(b) and (c).(c) As the constables approached the BP service station on Victoria Streeta male waved them down. He turned out to be the informant who hadtelephoned the police. He did not want to identify himself but he toldthe constables a female (inferentially the female he had reportedoffering him cannabis) had just walked on to the Boundary Road bridgeand was walking away from them.(d) The constables drove their patrol car on to the bridge and sawMs Holden, the only person on the bridge, walking away from them.She was wearing a jersey, jandals and tight jeans. The officers stoppedher:So once we approached Ms Holden we had a briefconversation, introduced ourselves, obtained her details,explained why we were there speaking with her and then afterthat I explained to her that due to the information I was givenby the informant combined with the information from CityCameras her matching the description, I suspected that shewas the person the informant was talking about and I wentthrough the processes of invoking the Search and SurveillanceAct in which I informed her why I was going to search her,what I was searching her for. I gave her my name and then Iread her her Bill of Rights in full.(e) Ms Holden was compliant and just as the female constableaccompanying Constable Monk was about to commence the search,Ms Holden pulled a container from her clothing and handed it over,saying "yes, I do have something". The plastic container containedpackaged cannabis. Inside the plastic container was a plastic bagcontaining several small plastic bags with cannabis in them and"tinnies"2. In total the cannabis weighed 25 grams.(f) Constable Monk asked Ms Holden what she was going to do with thetinnies, to which she replied:Someone was going to pick them up. That was supposed tobe all. I was just supposed to get a smoke out of it.2 Portions of cannabis wrapped in tinfoil.At that point Ms Holden was arrested.[6] I note that Constable Monk in his evidence-in-chief and in cross-examinationreferred to his "suspicion" that Ms Holden possessed cannabis. However, in re-examination he was asked to rate his suspicion of finding cannabis on Ms Holden ona scale of 1-10 (where 10 was 'definitely going to find cannabis'). The constable gavehis rating as 8.[7] The trial Judge was Judge AC Roberts. He heard Constable Monk's evidenceon 1 August 2019. At the conclusion of the evidence, Ms Holden's trial counselchallenged the admissibility of Constable Monk's evidence. Counsel, Mr Nye-Wood,did not make an application for discharge as such but proceeded on the basis that ifConstable Monk's evidence was inadmissible then a discharge would have to follow.That is how Judge Roberts proceeded.[8] Mr Nye-Wood's argument was that the stopping of Ms Holden by the policeofficers was unlawful because they did not have sufficient grounds to believe she wasin possession of cannabis.[9] Judge Roberts reserved his decision and, eventually, the hearing resumed on17 September 2019, at which point Judge Roberts delivered his decision orally. Itseems that Ms Holden was not present.3[10] Judge Roberts ruled:4In my determination Constable Monk had reasonable grounds to believe thedefendant was in possession of cannabis. Given the second requirement of thesearch holds a lower threshold I suggest he also had reasonable grounds tosuspect an offence against the Misuse of Drugs Act had or was beingcommitted in respect of the cannabis. I note counsel for the defendant doesnot appear to contest this point. As such there was a lawful warrantless searchunder s 22 Search and Surveillance Act 2012 and the defendant's challenge tothe admissibility of the evidence obtained thus cannot succeed.[11] There is no record that Judge Roberts did anything further beyond noting onthe record of hearing that he hoped a local Judge would sentence the defendant. There3 Judge Roberts noted the record of hearing to that effect.4 Police v Holden [2019] NZDC 18651 at [26].is no record of a finding of guilt or of reasons for a finding of guilt. The Judge doesnot appear to have entered a conviction or set a sentencing date. It is as though thedecision that the evidence of Constable Monk was admissible was regarded asdetermining the trial against Ms Holden. Counsel on appeal do not suggest otherwise.[12] Eventually, on 21 January 2020, it fell to Judge PR Connell to sentenceMs Holden.5 Mr Nye-Wood represented Ms Holden at the sentencing. Judge Connellconvicted Ms Holden and sentenced her to 190 hours' community work.The appeal[13] The notice of appeal (filed by Mr Nye-Wood) contains two grounds going tomiscarriage of justice:(a) The first ground is that Judge Roberts erred in finding the evidence ofConstable Monk of the search of Ms Holden admissible.(b) The second ground is that Judge Roberts erred in his assessment of theevidence because he did not consider whether Constable Monk'sevidence was sufficient to prove that Ms Holden possessed the cannabisfor the purpose of supply or sale.[14] As to the first ground, Mr Dillon, for the appellant, responsibly accepts that itcannot succeed.6[15] Section 22 of the Search and Surveillance Act 2012 provides, relevantly:(1) A constable may, in the circumstances set out in subsection (2), searcha person without a warrant.(2) The circumstances are that the constable has reasonable grounds –(a) to believe that the person is in possession of – [a controlleddrug]; or5 Police v Holden [2020] NZDC 1581.6 Synopsis of submissions for appellant, dated 9 March 2020, at para 20.(b) to suspect that an offence against the Misuse of Drugs Act1975 has been committed, or is being committed, or is aboutto be committed, in respect of that controlled drug[16] For the purpose of forming a s 22 belief or suspicion, Constable Monk wasentitled to rely on the information given to him by police communications. This wascorroborated by the informant in person. Constable Monk found Ms Holden wherethe informant indicated and her clothing was consistent with the information he hadreceived. The constable considered the likelihood he would find cannabis onMs Holden as "8" on a scale of 1-10. On the evidence, that was a reasonableassessment. I am satisfied that Constable Monk had the requisite "belief" unders 22(2)(a). Constable Monk used the word "suspect" in his account of what heexplained to Ms Holden,7 but I am satisfied that he had the requisite belief. In anyevent, on the information given to him, he had reasonable grounds to suspect, pers 22(2)(b), that Ms Holden had tried to sell cannabis to the informant.[17] It follows that the first ground of appeal cannot succeed.[18] As to the second ground, s 6 of the Act provides, relevantly:(1) Except as provided in section 8 of this Act, or pursuant to a licenceunder this Act, or as otherwise permitted by regulations made underthis Act, no person shall—(d) Supply or administer, or offer to supply or administer, any Class Ccontrolled drug to a person under 18 years of age; or(e) Sell, or offer to sell, any Class C controlled drug to a person of or over18 years of age; or(f) Have any controlled drug in his possession for any of the purposes setout in paragraphs (c), (d), or (e) of this subsection.[19] The definition of "supply" in s 2 of the Act "includes distribute, give, and sell".[20] The basis of this ground of appeal is that there is no admissible evidence thatMs Holden possessed the cannabis for the purpose of sale and hence insufficientevidence to found the conviction.7 See [5](d) of this judgment.[21] The quantity of cannabis (25 grams) was below the weight where sale ispresumed.8 The evidence of what the informant told the police is inadmissible ashearsay9 (and there is no suggestion it could pass the hearsay admissibility test in s 18of the Evidence Act 2006). What is left is that Ms Holden was proved to possess25 grams of cannabis, packaged in the way dealers package cannabis. But, Ms Holdengave an explanation that she was holding the cannabis for another person and that shewas going to receive some cannabis as a reward. That is not an admission ofpossession for sale. It is an admission of possession for one of the other meanings of"supply". Ms Holden, when searched after her arrest, did not possess any money.[22] There is no evidence of the age of the person to whom Ms Holden wasreferring.[23] Mr Dillon submits, therefore, that there was no sufficient evidential basis forMs Holden's conviction.[24] Supplying a person of or over the age of 18 years with cannabis (other than byselling) is an offence but it is not an offence under s 6. It is an offence under s 7(1)(b).It is a lesser offence than the offences prescribed in s 6.[25] Ms Alcock for the respondent submits that in Taitapanui v Police,Churchman J said it is apparent from ss 6 and 7 of the Act that: 10a. It is an offence to supply cannabis to anyone;b. It is an offence to sell cannabis to anyone;c. It is more serious to sell or supply cannabis to young people (personsunder 18 years of age) than to adults (persons of or over 18 years ofage); andd. It is more serious to sell cannabis to adults than to merely supply them.[26] In reliance on these dicta, Ms Alcock submits no miscarriage of justice canhave occurred. Age is of relevance only when the charge concerns supplying drugs to8 Misuse of Drugs Act 1975, s 6(6) and sch 5 ("cannabis plant", 28 grams).9 Evidence Act 2006, s 17.10 Taitapanui v Police [2019] NZHC 460 at [19] and [27].a person or persons under the age of 18. In other words, conviction was inevitableonce Constable Monk's evidence was ruled admissible.Discussion[27] As I have said, my task is to determine whether a miscarriage of justice hasoccurred:11 miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[28] The simple point is that we do not know why Judge Roberts found Ms Holdenguilty of the charge. There is no record of his reasons. There is no record that theJudge actually entered a finding of guilty. All the Judge recorded on the record ofhearing was his hope that a local Judge might sentence Ms Holden. Neither counselsuggests that reasons were given but the record has been lost. Judge Roberts is a veryexperienced Judge. I do not discount the possibility the record has been lost, but Ihave to proceed on the basis there are no reasons for why Ms Holden was convictedand sentenced on this charge.[29] Section 106 of the Criminal Procedure Act 2011 ("the CPA") requires a courtto give reasons for finding a defendant guilty or not guilty. The Supreme Court inSena v Police12 considered the requirement to give reasons under s 106 (and atcommon law) in the context of the requirements of s 232 of the CPA which prescribeshow a first appeal court must determine an appeal. Section 232 provides (relevantly):(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or11 Criminal Procedure Act 2011, s 232(4).12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case[30] The court said:13 The language of s 232(2)(b) reflects an assumption that the reasons givenby a Judge will reflect that Judge's assessment of the evidence and why thatassessment resulted in a conviction. A failure to provide such an assessmentfrustrates the operation of s 232(2)(b) and may well engage s 232(2)(c): thison the basis that a reasoned judgment is essential to a fair trial[31] In my view, the apparent failure to provide reasons for a finding of guilt hasresulted in an unfair trial. Ms Holden has been convicted and sentenced withoutknowing the basis on which she has been adjudged guilty. An essential part of a fairtrial is absent.[32] I do not accept Ms Alcock's submission that here a conviction was inevitableon the evidence and so there is no unfairness amounting to a miscarriage of justice. Itmight be that in an exceptional case where guilt is ineluctable her submission couldbe accepted. But this is not such a case.[33] In my view, the evidence against Ms Holden should have led to her acquittal.[34] Ms Holden could have been found guilty of the charge only if the prosecutionproved beyond reasonable doubt that she possessed the cannabis for the purpose ofsale. That is because a person cannot be convicted under s 6(1)(f) of supplyingcannabis other than by way of sale to a person aged 18 years or over.[35] Ms Holden's explanation that she held the cannabis for another person and herreward was going to be "a smoke" is exonerating with respect to the charge. There isno evidence that anybody under the age of 18 years had an interest in Ms Holden'scannabis.13 At [36].[36] Therefore, for a finding of guilty, Ms Holden's explanation would have to bedismissed as not being reasonably possible and the remaining prosecution evidencewould have had to have been found sufficient to prove beyond reasonable doubt thatMs Holden possessed the cannabis for the purpose of sale. I see no basis fordismissing her explanation. Even if there was, the remaining evidence is not cogentenough to prove possession for sale. The evidence simply puts Ms Holden inpossession of a quantity of cannabis packaged in a way dealers package their product.Equally, it is the form in which customers buy it. Ms Holden was not found to havein her possession any other indicators of dealing, and indeed had no money on her.Decision[37] The failure to provide reasons for a finding of guilt is an error which madeMs Holden's trial unfair and establishes a miscarriage of justice.[38] In any event, I am of the view that the evidence of Constable Monk could notprove beyond reasonable doubt that Ms Holden possessed the cannabis for sale.[39] The appeal is allowed. Ms Holden's conviction is quashed. In all thecircumstances, there will not be a new trial.________________________________Brewer J