BENNETT v R [2016] NZCA 170

BENNETT v R [2016] NZCA 170 [4 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA431/2015[2016] NZCA 170BETWEEN KEREOPA HOWARD BENNETTAppellantAND THE QUEENRespondentHearing: 5 April 2016Court: Wild, Clifford and Brewer JJCounsel: W T Nabney for AppellantK S Grau for RespondentJudgment: 4 May 2016 at 2.30 pmJUDGMENT OF THE COURTA Application for extension of time to appeal granted.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Mr Bennett pleaded guilty to a charge of possession of methamphetamine for supply and to one charge of possessing utensils for the purpose of committing an offence involving methamphetamine on 22 October 2014. That was on the second day of his joint trial with his co-defendant, David Anderson, in the Tauranga District Court before Judge Harding and a jury.2[2] The trial against Mr Anderson continued and he was found guilty of possession of methamphetamine for supply and possession of utensils for the purpose of committing an offence involving methamphetamine. On 18 December 2014 Judge Harding sentenced Mr Bennett to four years and three months'imprisonment.1[3] Mr Bennett now applies for an extension of time to appeal his conviction for possession of methamphetamine for supply on the ground that he was induced to plead guilty by threats from Mr Anderson.Extension of time to appeal[4] Mr Bennett is out of time to bring this appeal by some six months. The issue his appeal would raise is whether a miscarriage of justice would result unless he can have his guilty plea set aside and his conviction overturned. The Crown did not oppose the grant of an extension of time. In these circumstances, we grant Mr Bennett's application for an extension of time to bring this appeal.Facts[5] On 19 March 2014 Mr Anderson was the driver and Mr Bennett the passenger in a car stopped by a police patrol in the Tauranga area. Mr Anderson was arrested for driving while suspended. The police placed him in the back of the patrol car. Mr Anderson was searched, but nothing of interest was found on him.[6] Mr Bennett was searched separately from Mr Anderson. Mr Bennett was found to be carrying two empty point bags, digital scales and a cut straw in his trouser pocket. In a statement to the police at the time, Mr Bennett said he did not know whose jeans he was wearing, or to whom the scales and bags in the jeans belonged. Mr Bennett was then told to sit down on a grass area near the car. An officer saw him moving loose grass under his leg. It transpired that Mr Bennett had been attempting to hide a further number of zip-lock bags. He was then arrested also.1 R v Anderson DC Tauranga CRI-2014-070-1022, 18 December 2014.3[7] When the police moved the vehicle Mr Anderson had been driving to put it onto the tow truck, they found a black sunglasses case on the ground over which the car had been stopped. That black, soft shell, sunglasses case contained a brown sunglasses case, inside which were two zip-lock bags. One contained two grams of methamphetamine, the other 26.5 grams of methamphetamine. When the car was searched at the tow truck premises the police found $1,600 cash, digital scales and a cut-down knife.[8] Mr Anderson did not make a statement to the police. Mr Bennett said he did not know who owned the items in the car.[9] Mr Anderson's DNA was subsequently found on both sunglasses cases and on the bag containing two grams of methamphetamine.[10] Mr Bennett and Mr Anderson's trial began on 21 October 2014. Evidencewas given relating to the circumstances in which Mr Anderson and Mr Bennett were arrested. Admissions of fact were then read to the jury. They related to Mr Anderson and Mr Bennett's presence in the car, the finding of the sunglass cases and the methamphetamine and the obtaining of Mr Anderson's DNA sample. Thattook matters to the end of the first day of the trial.[11] Mr Bennett pleaded guilty the next morning and, as already noted, the trial against Mr Anderson alone continued.Appeal[12] It is only in "exceptional circumstances" that an appeal against convictionwill be entertained after a plea of guilty. An appellant must show that a miscarriage of justice will result if the conviction is not overturned.2[13] In his affidavit filed in support of this appeal Mr Bennett says he pleaded guilty because he had been threatened by Mr Anderson, and persons associated with him. But for those threats, he would not have pleaded guilty and would have2 R v Le Page [2005] 2 NZLR 845 (CA) at [16]; and Richmond v R [2016] NZCA 41 at [16]–[19].4continued through the trial. He had a viable defence to the charges he faced. That defence was based on the following narrative Mr Bennett outlined in his affidavit:(a) He had been invited by David Anderson to go with him to his placefor a "sesh": that is, they were going to smoke somemethamphetamine together. At that time he was using 0.1 grams of methamphetamine a day. He injected his methamphetamine. He would weigh a point using his digital scales. He would then either add water to the point in a snap lock bag or use a cut straw to remove a point from the bag and put it, with water, into the barrel of the syringe. He would then inject the methamphetamine. That explained why he was carrying digital scales, a cut straw and a syringe. The point bags he had were empty, and had previously contained methamphetamine he had used.(b) Just before they had been stopped by the police, Mr Anderson had thrown a little black bag into his lap, telling him to put it into his underpants. Mr Bennett did that. Mr Anderson had then stopped the car. Mr Anderson had been arrested by the police, handcuffed and taken to the police car immediately after the police stop. An officer had then approached the car, where Mr Bennett was still seated. He had told Mr Bennett that he was to be searched, as was the car. As Mr Bennett was getting out of the car, he slid the package out of his underpants, down the leg of his trousers and had been able to flick it under the car. When he had been told to sit on the grass he had tried to conceal empty snap-lock bags that had had methamphetamine in them.(c) Mr Bennett did not know what was in the package he had slipped under the car: however, because Mr Anderson had passed it to him, he had guessed it had to be something illegal.(d) In the police cells, he had heard Mr Anderson yell out that he would have to put up his hand for the drug supply charge, because5Mr Anderson would get ten years plus and he would get only home detention. That was the first time he had heard Mr Anderson say he expected him to take responsibility for the methamphetamine. He ignored Mr Anderson. Mr Anderson had got angry.(e) He had been remanded on bail; Mr Anderson in custody. When, some six weeks later, Mr Anderson was released on EM bail, Mr Bennett had been told Mr Anderson wanted to see him in a nearby town. He had ignored that. He had then been visited by a person, wearing a gang patch, he did not know. That person handed him a cellphone. Mr Anderson had been on the phone. He had told Mr Bennett that hewas to "take the rap". Mr Anderson had then told him to hand thephone back to the man wearing the gang patch. Mr Anderson and that person spoke for a few more minutes. After the man hung up, he said to Mr Bennett, "If you know what's good for you, you should put your hand up". That was, Mr Bennett took it, a threat.(f) Notwithstanding that threat, and whilst Mr Bennett accepted that it was likely he would have to plead guilty to possession of utensils, he decided to defend the charge of possession for supply because he had never had any intention of supplying the methamphetamine. He would, if he had remained in possession of it, simply have returned it to Mr Anderson when requested.(g) During the first day of the trial, Mr Bennett felt that Mr Anderson'slawyer was out to make it look as though the methamphetamine was his. He and Mr Anderson were both released on bail after the first day of the trial. The same patched gang member as before visited Mr Bennett that evening. Mr Bennett says he was to be taken in a car to see Mr Anderson, but he ran off and hid. He stayed with a friend until the next morning, went to Court and told his solicitor that he would be changing his plea to guilty because he was scared for his safety. He believed he was at risk of serious violence from Mr Anderson. Mr Anderson had a considerable reputation for6violence. If he had not been threatened, he would not have pleaded guilty.[14] For Mr Bennett, Mr Nabney accepted that it was necessary for Mr Bennett not only to demonstrate he had pleaded guilty as a result of pressure from his co-defendant, but also that he had a defence to the charge. Mr Nabney said that Mr Bennett's affidavit spoke for itself as regards the pressure and the threats he had been under. Furthermore, it also established that Mr Bennett did have a credible defence to the charge of possession of methamphetamine for supply. Whilst Mr Bennett thought he was being given something illegal by Mr Anderson, it did not automatically follow that he was presumed to know he was in possession of the methamphetamine concealed in the sunglasses case. Thus, whilst the methamphetamine was physically in his possession, the mental element of possession was not satisfied. Mr Bennett had had no opportunity to ascertain the actual contents of the package given to him by Mr Anderson. He had, in effect, been co-opted by Mr Anderson to take possession of that package without his consent. Hemight at best be a party to Mr Anderson's offending. The presumption as to supplycontained in s 6(6) of the Misuse of Drugs Act 1975 would not, in those circumstances, apply to him.3 The Crown would have to prove that he had knowingly assisted Mr Anderson. There was no evidence Mr Bennett in fact intended to assist Mr Anderson in the supply of methamphetamine. Accordingly, a miscarriage of justice would result if Mr Bennett was not able to pursue the defence available to him given the circumstances in which he entered his plea.[15] We consider the Crown's submissions in the course of analysingMr Bennett's appeal.Analysis[16] We have considerable scepticism as to the veracity of Mr Bennett's claimsthat he only entered his guilty plea because of threats from Mr Anderson. As the Crown submitted, Mr Bennett's affidavit contains no direct evidence of any threat tohis safety. Mr Bennett only says he believed the comment from the "patched"3 R v Samuels [1985] 1 NZLR 350 (CA) at 356.7messenger was a threat and that he was aware of Mr Anderson's reputation for violence. The affidavit from Mr Hudson, who is associated with both men, addslittle to the evidence of Mr Anderson's reputation. Moreover, we also considerMr Bennett's account of what he said to his lawyer, an experienced trial counsel, atthe time of his decision to enter his guilty pleas as being particularly implausible. It is significant, in our view, that Mr Rickard-Simms has not provided an affidavit confirming that aspect of matters, or indeed the advice he gave to Mr Bennett at the time.[17] Notwithstanding that scepticism, we accept for the purposes of this appeal Mr Bennett's assertion that he pleaded guilty because of threats from Mr Anderson.The issue therefore becomes whether he did have a tenable defence to his charge, so that a miscarriage of justice would result if he were not now able to withdraw his guilty plea and go to trial on a plea of not guilty.[18] In our view, no miscarriage will result if Mr Bennett's appeal is not allowed.He has no arguable defence to the charge of possession of methamphetamine, given the facts and circumstances in existence at the time of his arrest.[19] As Mr Nabney for Mr Bennett submitted, there are two elements to possession at law: physical custody or control; and knowledge and intention. That is, knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed), and an intention to exercise possession.4 There can be no doubt that Mr Bennett was physically in possession of the methamphetamine, nor that he intended to exercise control of it. His action in concealing the sunglasses case on his person, and then attempting to hide it under the car, established those elements. The question is whether, as he argued, he has any defence to the mental element, either on the basis that the presumption of supply would not apply, as he was only a party to Mr Anderson's offending, or, alternatively,if it did, that he could displace the presumption.[20] By his own account, Mr Bennett was in the car with Mr Anderson to consume methamphetamine. In those circumstances the inference that the contents of the4 R v Cox [1990] 2 NZLR 275 (CA) at 278.8sunglasses case was or included methamphetamine is, by our assessment, irresistible. If it was something illegal, as Mr Bennett acknowledged, and Mr Anderson was providing methamphetamine, what else would the sunglasses case contain to occasion Mr Anderson to give it to Mr Bennett to hide from the police, and subsequently attempt to dispose of?[21] Moreover, Mr Bennett was not only found in possession of snaplock bags that had contained methamphetamine, but also new snaplock bags. His affidavit contains no explanation of his possession of the latter. His possession of other items— scales, a scooping utensil, and point bags to package for sale, including 21 used and nine new small (4 cm x 3.33 cm or less) snaplock bags — is also consistent with possession for supply.[22] At any retrial, Mr Bennett would also be faced with the statement he made on the scene, that he did not know to whom the trousers he wore or the drug paraphernalia found in them belonged.[23] In our view, Mr Bennett has no tenable defence to the charge of possession of methamphetamine for supply. If the presumption of supply applied (which we do not need to decide), it would represent an insuperable barrier to Mr Bennett succeeding with this appeal. But even assuming, as we do, that the presumption did not apply to Mr Bennett, he has no arguable defence to the charge. The case against him was overwhelming.[24] Mr Bennett's appeal against conviction is, therefore, dismissed.Solicitors:Crown Law Office, Wellington for Respondent