TAITAPANUI & ANOR v NEW ZEALAND POLICE [2019] NZHC 460

TAITAPANUI & ANOR v NEW ZEALAND POLICE [2019] NZHC 460 [15 March 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-2[2019] NZHC 460BETWEEN TANGIARIKI HEMENE TAITAPANUIAppellantAND NEW ZEALAND POLICERespondentCRI-2019-441-3BETWEEN TE AWAITI THOMPSONAppellantAND NEW ZEALAND POLICERespondentHearing (via AVL): 14 March 2019Counsel: W R Hawkins for Appellant TaitapanuiS M Lott for Appellant ThompsonC Walker for CrownJudgment: 15 March 2019JUDGMENT OF CHURCHMAN JIntroduction[1] The sole issue in this appeal is whether or not, in a charge under s 6(1)(e) ofthe Misuse of Drugs Act 1975, it is necessary for the prosecution to prove the age ofthe person to whom the sale was made.[2] On 30 July 2018, the appellants, Ms Taitapanui and Mr Thompson, wereconvicted in a Judge-alone trial before Judge Adeane in the Hastings District Courtof:1(a) selling a Class C controlled drug, namely cannabis;2 and(b) possessing cannabis for sale.3[3] They jointly appeal the conviction on the basis that the Judge erred indetermining that it was not a specific element requiring proof for a charge of sellingcannabis pursuant to s 6(1)(e) of the Misuse of Drugs Act 1975 (the Act) to prove saleto a person over 18 years of age. They argue that a miscarriage of justice has thereforeoccurred within the meaning of s 232(2)(c) of the Criminal Procedure Act 2011 thathas affected the outcome of the trial.Factual background[4] Ms Taitapanui and Mr Thompson are domestic partners. On the afternoon of23 January 2018, the police went to an address in Hastings to conduct a search warrantin relation to stolen property. During the execution of that search warrant, cannabiswas located at the property. Several containers containing cannabis were found in theappellants' bedroom. Various other items, including electronic scales, a notebookcontaining "tick lists", quantities of cannabis packed in clear plastic bags and cashwere also located.[5] Mr Thompson admitted to owning the cannabis, cannabis utensils, and drugparaphernalia. After he was cautioned, he also admitted to selling cannabis, explainingthat the notebook was a "tick book" for people owing money.[6] Ms Taitapanui also admitted to selling cannabis, saying in the DVD interviewwith police that she sold it to friends.1 Police v Taitapanui [2018] NZDC 27352.2 Misuse of Drugs Act 1975, s 6(1)(e); maximum penalty eight years' imprisonment.3 Section 6(1)(f); maximum penalty eight years' imprisonment.District Court decision[7] The Judge noted that Mr Thompson and Ms Taitapanui were each charged withhaving in their possession a Class C controlled drug for the purpose specified ins 6(1)(e) of the Act. He stated:4That section in turn provides that no person shall sell any Class C controlleddrug to a person of or over 18 years of age. It is immediately juxtaposedagainst ss (d) which makes it clear that whereas supply simpliciter to a personunder 18 is a qualifying offence, [to] become an offence under s (e) whichdeals with persons over 18 years of age, a sale must be involved. Separateprovisions are made for sale and supply according to the age of those sold toor supplied.[8] The Judge further noted that both defendants admitted to selling, having"candidly confessed to the police their involvement",5 and he determined:6It is in my view, not a specific ingredient of the charge that proof [of] sale topersons over 18 has to be established. The legislative scheme is to create amore aggravated offence of any sort of supply for money or otherwise to thoseunder 18. Where persons over 18 are involved, the full rigors of s 6 of thepenalties it involves are [not] invoked, unless there is a sale by definition.[9] The Judge concluded that the ingredients of each of the charges were provedto the required standard.7Approach to appeal[10] This appeal is brought under s 232(2)(b) and (c) of the Criminal Procedure Act2011 which provides that an appeal must be allowed if the Court is satisfied that theJudge erred in his assessment of the evidence to such an extent that a miscarriage ofjustice has occurred or that a miscarriage of justice has occurred for any reason. Suchan appeal proceeds by way of rehearing.[11] A "miscarriage of justice" is defined as meaning any error, irregularity, oroccurrence in or in relation to or affecting the trial that:84 Police v Taitapanui, above n 1, at [2].5 At [7].6 At [6]. The omission of "not" in the final sentence of this passage is presumed to have been atypographical error.7 At [8].8 Criminal Procedure Act 2011, s 232(4).(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.Discussion[12] Counsel for Ms Taitapanui, Mr Hawkins, submits that the issue at the trial waswhether police could prove sale to a person aged of or over 18 years, or supply to aperson under 18 years of age. He submits that there was no admissible evidence ledby the police on this issue, no individual person of any description having beenidentified. The only evidence of identified individuals that had purchased drugs werethe names entered into a "tick list", many of which were just nick names like "Dj" or"Aunty". Ms Taitapanui had said that she sold cannabis to her "mates", whichMr Hawkins submits is an imprecise term that cannot definitively include or excludeany individual. The word "mate", it is submitted, does not denote any specificidentifying characteristics, especially in reference to age. While it may have beenpossible, or even likely, that some of the persons sold to could have been over 18 yearsof age, that threshold is significantly lower than the required threshold of beyondreasonable doubt. At the trial, Mr Hawkins submitted that the prosecution had failedto establish evidence of age of persons sold to, and therefore sought that the chargesbe dismissed. He contends the Judge erred in ruling that proof of sale to a person agedover 18 years was not required under ss 6(1)(e) and (f) of the Act.[13] Counsel for Mr Thompson, Ms Lott, submits that evidence from Ms Taitapanuiin the form of her statement to police admitted that she sold to "mates" is notadmissible against Mr Thompson. That is correct. She further submits thatMr Thompson's admissions amounted to "selling" but with no evidence on hiscustomers' details. That is also correct. In common with Mr Hawkins, Ms Lottsubmits that the Judge erred in ruling that age is not an element to be proved beyondreasonable doubt.[14] Section 6 relevantly provides as follows:6 Dealing with controlled drugs(1) Except as provided in section 8, or pursuant to a licence under thisAct, or as otherwise permitted by regulations made under this Act, noperson shall—(d) supply or administer, or offer to supply or administer, anyClass C controlled drug to a person under 18 years of age; or(e) sell, or offer to sell, any Class C controlled drug to a personof or over 18 years of age; or(f) have any controlled drug in his possession for any of thepurposes set out in paragraphs (c), (d), or (e).(5) For the purposes of paragraph (e) of subsection (1), if it is proved thata person has supplied a controlled drug to another person he shall untilthe contrary is proved be deemed to have sold that controlled drug tothat other person.[15] The Act defines supply as including "distribute, give, and sell".9[16] Mr Hawkins submits that, as s 6(1)(d) creates an offence to supply oradminister a Class C controlled substance to a person under 18 years of age, whiles 6(1)(e) creates an offence to sell a Class C controlled substance to a person of or over18 years of age, one of the delineating features between these subsections is the issueof age. That is self-evident.[17] Mr Hawkins argues that the parallel provision for being in possession of supplyof a Class C controlled drug is s 7(1)(b) of the Act which provides:7 Possession and use of controlled drugs(1) Except as provided in section 8, or pursuant to a licence under thisAct, or as otherwise permitted by regulations made under this Act, noperson shall—(b) supply or administer, or offer to supply or administer, anyClass C controlled drug to any other person, or otherwise dealin any such controlled drug.9 Misuse of Drugs Act, s 2.[18] Mr Hawkins states that s 7 is drafted in broader terms, being an offence tosupply "any person" or "otherwise deal" regardless of age, which can be distinguishedfrom s 6(1)(d) and (e) which restrict liability by virtue of the age of the person to whomthe drug is supplied or sold. He submits that if it can only be an offence under s 6(1)(d)if the person sold to is under 18 years of age, similarly it can only be an offence to sellcannabis under s 6(1)(e) if the person sold to is aged 18 years or over. Mr Hawkinsnotes that s 6(5) is a statutory mechanism that allows a Court to presume supply asbeing synonymous with sale of a Class C substance. He submits that what this provisoaims to achieve is that, if it can be established that there has been supply of a Class Ccontrolled substance, a defendant cannot escape liability by claiming sale of thesubstance in question and vice versa. As this proviso makes no mention of the age ofthe person supplied or sold to, Mr Hawkins submits that the default position musttherefore be that, on a strict reading of s 6(1)(e), the person sold to must be aged over18 years of age and this is an essential element requiring proof beyond a reasonabledoubt.[19] The Crown, however, submits that it is apparent from ss 6 and 7 of the Act that:(a) 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); and(d) it is more serious to sell cannabis to adults than to merely supply them.[20] Three Court of Appeal cases have addressed the issue of age in relation to theform of charges of possessing cannabis for sale or supply under s 6(1)(f). The first ofthese cases is R v Tracy in which the Court suggested that, where there was no evidenceas to the age of the intended recipient, the appropriate form of the charge was "for apurpose specified in paragraph (d) or paragraph (e) of subsection (1) of section 6 ofthe Misuse of Drugs Act 1975", saying:10It seems to us that the legislature must have intended that a charge under para(f) could be established by evidence showing that the accused must have hadat least one of the various purposes therein referred to even though there wasinsufficient evidence to establish which of such purposes he had in his mind.[21] The Crown submits that the above passage indicates that it was not considerednecessary for the fact finder to draw a conclusion as to the age of the intendedrecipient, only that the defendant had intended to either sell to an adult or supply(which includes sell) to a young person.[22] The position was refined in R v Paterson in which the Court suggested that,where there was no evidence of supply to young people, there was no need to refer tos 6(1)(d), outlining the various advantages of that approach as follows:11The form of alternative count suggested in Tracy has been found convenientin practice. It has often been used and its propriety is not in question. It is tobe noted, however, that Tracy was concerned with cases where the prosecutionis putting forward cumulative or alternative counts, directed both to sale topersons of or over 18 and supply to persons under 18. When there is no reasonto suggest that the defendant may have intended to supply persons under 18,we see no reason why a simple count charging possession for sale to personsof or over 18 should not suffice. The prosecution would then have the benefitof the presumption, if the quantity in possession is enough to raise it, becausewithin the meaning of s 6(6) the case would then require that presumption.The defendant could defeat the presumption by proving on the balance ofprobabilities that he intended merely to supply, without sale, persons of andover 18. It seems highly unlikely that a defendant would attempt to show thathe intended to extend his supply to persons under 18, for at best that wouldleave him open to a new charge at a different trial on which his admissionwould be evidence against him.[23] The approach was further refined in Tran v R, a case in which there was nosuggestion of supply to young people.12 The Court approved the use of the wording"for the purposes of sale", saying:[9] In this case, the relevant purpose relied on in terms of s 6(1)(f) wasthat of sale. The indictment charged "possession for the purposes of sale" ofpseudoephedrine. Sale of a Class C controlled drug to any person constitutesan offence, by the combined operation of paras (d) and (e) of s 6(1). Sale to a10 R v Tracy [1978] 2 NZLR 91 at 95.11 R v Paterson [1985] 1 NZLR 334 at 337.12 Tran v R [2010] NZCA 349.person under 18 is an offence under para (d), because the definition of"supply" in s 2 includes "sale". Sale to a person 18 years or older is an offenceunder para (e). The reason for that somewhat convoluted prescription of theoffence of sale of a Class C drug is that the supply (otherwise than by sale) ofsuch a drug to a person over 18 constitutes only the lesser offence created bys 7(1)(b) of the Act.[24] The Crown submits that it is apparent from Paterson and Tran that, where thereis no suggestion in the evidence that the cannabis is intended to be supplied to youngpeople, it is appropriate for the prosecution to focus the charge on the purpose of salerather than the alternative purpose of sale or supply. This approach, it is submitted, isto a defendant's advantage because it excludes the more aggravated form of theoffence when there is no evidence to suggest that it is applicable.[25] The same reasoning applies in cases involving the allegation of sale rather thanpossession for sale, the Crown submits. Where there is no evidence that the cannabiswas sold to young people, the practice is to charge under s 6(1)(e), with the chargeworded so as to exclude "of or over 18 years of age" because, although those wordsare contained in the section, they are not an element of the charge under s 6(1)(e) butinstead serve to demonstrate that the allegation is not the aggravated one of supplyingyoung people under s 6(1)(d).[26] The Crown submits the facts of the present case demonstrate the absurdity thatwould result if the appellants' contention that the prosecution has to prove age in thesecircumstances was correct. The appellants are admitted drug dealers, but their positionis that they cannot be guilty of a dealing offence because the prosecution cannot provethat they were not committing the more aggravated form of the offence. Followingthat to its logical conclusion, the Crown submits, would mean that a seller of kilogramsof cannabis in a sophisticated commercial operation could never be guilty of a chargeof selling cannabis where the age of the recipients is unknown. That is an affront tocommon sense and cannot have been Parliament's intention. The Crown submits thatit is no answer that there is another available charge under s 7(1)(b) because itsmaximum penalty of three months' imprisonment shows that it is neither intended norappropriate for commercial offending. I accept these submissions.[27] For the reasons advanced by the Crown, I am satisfied that the Judge wascorrect to find that the age of persons sold to was not an element that had to beestablished. Age is of relevance only when it is a matter of supplying drugs to a personor persons under the age of 18, supplying under the Act not being limited to just sellingbut also including distributing or giving. This is because distributing or giving drugsto a person of that age is a more serious offence than doing so for persons aged 18 orabove. However, when the offence is that of selling or offering to sell drugs, or havingdrugs in his or her possession for the purpose of sale, this is an offence regardless ofthe recipient's age.[28] It was not part of the prosecution case, nor suggested by either of thedefendants, that the aggravated form of the offence, namely sale to persons under theage of 18 applied. When the prosecution does not allege the aggravated offence, theage of those to whom the drugs are sold is irrelevant. As Mr Walker, for the Crownnoted, if that were not the case, when the persons to whom the drugs were sold wasunknown, even in the largest and most sophisticated of drug selling operations, theonly offence which an admitter seller of drugs could be convicted was one under s 7with a maximum penalty of three months' imprisonment.Result[29] I am satisfied that the Judge made no error in his decision. The age of thepersons sold to was irrelevant and not an element that the prosecution was required toprove.[30] Accordingly, the appeal is dismissed.Churchman JSolicitors:Crown Solicitor's Office, Napier for CrownCounsel:W R Hawkins, Hastings for Appellant TaitapanuiS M Lott, Hastings for Appellant Thompson