TE ATA PATRICIA MESMAN v R [2022] NZCA 418

TE ATA PATRICIA MESMAN v R [2022] NZCA 418 [7 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA317/2022[2022] NZCA 418BETWEEN TE ATA PATRICIA MESMANAppellantAND THE QUEENRespondentHearing: 23 August 2022Court: Cooper P, Mallon and Wylie JJCounsel: R J T George for AppellantI S Auld for RespondentJudgment: 7 September 2022 at 4 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] On 22 December 2021, the appellant, Te Ata Mesman, was convicted ofattempting to possess the Class A controlled drug methamphetamine for the purposeof supply, contrary to s 6(1)(f) and (2) of the Misuse of Drugs Act 1975 and ss 72 and311(1) of the Crimes Act 1961.[2] Ms Mesman had earlier applied under s 147 of the Criminal Procedure Act2011 for the charge to be dismissed.1 She argued that it is not possible at law to attemptto possess a substance. This argument failed before Judge M J Callaghan in theDistrict Court at Christchurch. He held that the offence is recognised in this country.2Ms Mesman then entered a guilty plea to the charge. She was sentenced in relation tothe charge (and other drug and driving-related charges) by Judge Farish on1 June 2022.3 The sentence imposed was 12 months' intensive supervision witha range of conditions intended to help Ms Mesman address the underlying causes ofher offending and to provide for her rehabilitation.4[3] Notwithstanding her guilty plea, Ms Mesman appeals her conviction.She contends that attempting to possess a controlled drug for the purpose of supply isnot an offence under New Zealand law. The appeal is opposed by the Crown.Relevant facts[4] On 23 April 2020, Ms Mesman engaged a courier company. She arranged tohave a package delivered to her at a motel unit in Christchurch. She provided hername, phone number, email address and debit card information to the couriercompany. She had rented the motel unit the previous day for a number of days.She had paid for the accommodation in advance.[5] Staff employed by the courier company inspected the package. They founda snaplock bag containing translucent crystals. The package was taken to the police.The crystals were analysed. They were found to be methamphetamine. The snaplockbag contained 7.2 g of the drug.[6] On the afternoon of 24 April and on 25 April 2020, Ms Mesman telephoned,emailed and sent text messages to the courier company demanding delivery ofthe package. She asserted that the package contained urgent cancer medication.1 R v Mesman [2021] NZDC 19314.2 At [24].3 R v Mesman [2022] NZDC 10275.4 At [14].[7] The police executed a search warrant on the motel unit on 26 April 2020.Ms Mesman was present. She said that she had bought the methamphetamine froma friend and that she intended to use some of it herself and on-sell the remainder.The appeal[8] The appeal is brought pursuant to s 229(1) of the Criminal Procedure Act.This Court must allow the appeal if it is satisfied that a miscarriage of justice,as defined in s 232(4), has occurred. There must be a real risk that an error has affectedthe outcome of the trial or rendered it unfair. Trial in this context includes a proceedingin which an appellant has pleaded guilty.5 It is however only in exceptionalcircumstances that an appeal against conviction will be entertained followinga guilty plea.6 The question in such appeals is whether a miscarriage of justice willresult unless the appellant is able to impugn his or her plea.7[9] Ms Mesman says that, on the admitted facts, she could not in law have beenconvicted of the offence charged because there is no such offence recognised byNew Zealand law. The Crown accepts that, if the Court finds that the offence chargeddoes not exist, conviction on the charge would be a miscarriage of justice, requiringthat the appeal be allowed and the conviction set aside.8The submissions[10] The submissions made by Mr George on behalf of Ms Mesman can besummarised as follows:(a) Possession is a state of affairs. A defendant is either in possession ofsomething or not in possession of it and it does not matter whether thepossession is active or passive.(b) Before a defendant can be in possession of something, he or she mustfirst procure or receive it. It is only once the defendant has procured or5 Criminal Procedure Act 2011, s 232(5).6 R v Le Page [2005] 2 NZLR 845 (CA) at [16].7 Proctor v R [2007] NZCA 289 at [4].8 As in for example McIntyre v R [2017] NZCA 579, [2018] NZAR 43.received the thing that he or she is in possession of it. Section 72 of theCrimes Act dealing with attempts applies only to attemptedprocurement; possession (being a state of affairs) cannot be attempted.(c) Section 7(1)(a) and (2) of the Misuse of Drugs Act create the offenceof procurement of a controlled drug. Possession and procurement aredistinct concepts and there is no offence under the Act of procurementfor the purpose of supply. A finding that there is no offence ofattempted possession of a controlled drug is consistent with the schemeof the Act.[11] Mr Auld, for the Crown, submitted as follows:(a) A defendant who intends to bring about the state of affairs of having inhis or her possession a controlled drug for the purpose of supply can doan act for the purpose of accomplishing that object. Section 72 of theCrimes Act can apply to that act.(b) Procurement of a drug and possession of a drug are indistinguishable;both are complete once the defendant has possession of the drug.The offences of attempted procurement and attempted possession arelikewise indistinguishable. Accordingly, the fact that there is noreference to the offence of procurement for the purpose of supply in theMisuse of Drugs Act is of no moment. Conduct that amounts toprocurement for supply is caught by the offence of possession forsupply.(c) An interpretation of the Misuse of Drugs Act and the Crimes Act whichrecognises the offence of attempted possession of a controlled drug forthe purpose of supply accords with the purpose and scheme of theMisuse of Drugs Act.Analysis[12] Ms Mesman was convicted under s 6(1)(f) and (2) of the Misuse of Drugs Act.Relevantly, those sections provide:6 Dealing with controlled drugs(1) [N]o person shall—(c) supply or administer, or offer to supply or administer,any Class A controlled drug or Class B controlled drug to anyother person, or otherwise deal in any such controlled drug;or(f) have any controlled drug in his [or her] possession for any ofthe purposes set out in paragraphs (c), (d), or (e).(2) Every person who contravenes subsection (1) commits an offenceagainst this Act and is liable on conviction to—(a) imprisonment for life where a Class A controlled drug was thecontrolled drug or one of the controlled drugs in relation towhich the offence was committed:[13] Methamphetamine is a Class A controlled drug.9[14] As a result of the intervention of the courier company and the police,Ms Mesman did not come into possession of the methamphetamine. Moreimportantly, it is not clear from the statement of admitted facts whether Ms Mesmanever came into possession of the package that originally contained themethamphetamine. We assume that she did not do so. That is the most benign viewof the facts from her perspective. It is clear that had she come into possession of themethamphetamine, she would have intended to supply some of it to others.Presumably as a result of this admission, she was charged with attempted possessionfor the purpose of supply, pursuant to ss 72 and 311(1) of the Crimes Act. Relevantly,those sections provide:9 Misuse of Drugs Act 1975, s 2(1) and sch 1.72 Attempts(1) Every one who, having an intent to commit an offence, does or omitsan act for the purpose of accomplishing his or her object, is guilty ofan attempt to commit the offence intended, whether in thecircumstances it was possible to commit the offence or not.(2) The question whether an act done or omitted with intent to commit anoffence is or is not only preparation for the commission of thatoffence, and too remote to constitute an attempt to commit it, is aquestion of law.(3) An act done or omitted with intent to commit an offence mayconstitute an attempt if it is immediately or proximately connectedwith the intended offence, whether or not there was any actunequivocally showing the intent to commit that offence.311 Attempt to commit or procure commission of offence(1) Every one who attempts to commit any offence in respect of which nopunishment for the attempt is expressly prescribed by this Act or bysome other enactment is liable to imprisonment for a term notexceeding 10 years if the maximum punishment for that offence isimprisonment for life, and in any other case is liable to not more thanhalf the maximum punishment to which he or she would have beenliable if he or she had committed that offence.[15] There are conflicting High Court decisions on whether there is an offence ofattempted possession of a substance for the purpose of supply.[16] In R v Grant, the defendant picked up a bag which he thought containedmarijuana.10 In fact the police had already removed the drug and replaced it withnewspaper. The defendant was nevertheless charged with attempted possession ofmarijuana under the provisions of the then Narcotics Act 1965. The relevant sectionprovided that no person was to have a narcotic in his or her possession. Mahon Jheld that:(a) having something in one's possession involves neither an act nor anomission:1110 R v Grant [1975] 2 NZLR 165 (SC).11 At 168.[The offence] falls within that intermediate category in whichliability consists in the involvement of the accused withspecified facts or circumstances.(b) having possession of something:12 represents not an act but the passive consequences of aprior act, namely, the act of acquisition of possession (c) s 72 of the Crimes Act requires that a defendant does or omits an act forthe purpose of accomplishing his or her object:13The actus reus of an attempt is the commission of an act andis almost always an overt act: Therefore, when s 72requires as a criterion of liability an act coupled with anintention on the part of the offender to commit an offence,it can only refer, in my view, to the commission of an act asopposed to the acquisition by design or otherwise of somecriminal status created by unlawful involvement in definedfactual circumstances. the only act of the offender capable in the abstract ofdescription as an attempt is the act of acquiring or procuringpossession, which is the very act by which the crime isconsummated, whereas the act referred to in s 72 is,by implicit definition, an act antecedent to the commission ofthe substantive crime, as shown by subss (2) and (3) whichprescribe the tests to be applied in determining whether theseparate act comprising the alleged attempt is sufficientlyconnected with the subsequent act or conduct constituting theoffence to amount to an attempt to commit that offence.(d) possession of a proscribed drug will in most cases amount only toevidence of preparation for the commission of the specific crime incontemplation, and:14 as no act is involved the fact of possession will usually beevidence of an inchoate attempt which for policy reasons thelaw decides to designate as a substantive crime.Accordingly, the Judge held that the defendant could not be charged with the offenceof attempted possession of a narcotic because no such offence is known to the law inthis country.1512 At 169.13 At 169.14 At 170.15 At 171.[17] Some five years later, Speight J in R v Willoughby considered Grant.16Two defendants were charged with conspiring with others to possess heroin for thepurpose of supply. The two defendants met with one of the co-conspirators.The co-conspirator agreed to procure an ounce of heroin for them. Money wasexchanged and one of the defendants obtained what she thought was a packet of heroinfrom the co-conspirator. She complained however that the packet did not contain theagreed amount of heroin and she returned it. Possession of the packet was not finallytaken by either accused. The police did not recover the packet and there was noevidence that it in fact contained heroin. In a ruling given during the trial, Speight Jconcluded that the defendants could nevertheless be convicted of attempted possessionof heroin for the purpose of supply. The Judge took a different view from Mahon Jin Grant for two reasons:(a) possession can be active or passive.17 Active possession consists ofpositive control such as holding or transporting; passive possessionarises when an article is in a person's power of control and the personpermits it to remain in his or her control by omitting to take steps todisown it. An act or omission demonstrating control must always beproved in a case of possession; and(b) the Misuse of Drugs Act (and the Narcotics Act under which Grant wasdecided) creates the offence of possession of a controlled drug for thepurpose of supply.18 Therefore, if a person has an intention to committhat offence and does an act such as purchasing or attemptingto purchase a controlled drug to that end, the person's actions fall withinthe plain meaning of s 72 of the Crimes Act.The Judge noted that if this view was not correct, there would be a "hiatus" in theMisuse of Drugs Act, because there is no offence of procurement of drugs for16 R v Willoughby [1980] 1 NZLR 66 (SC).17 At 68.18 At 68.the purpose of supply.19 He preferred "to read the statute as a whole and take aconstruction which avoid[ed] absurdity".20[18] Neither case has been cited with any regularity in this country. The onlydetailed consideration given to them prior to the present case was by Judge Lance QCin the District Court at Auckland in 2005.21 He preferred the reasoning in Willoughby,noting as follows:22I prefer the reasoning of Speight J to that of Mahon J principally because ofhis analysis of the statutory provisions and I do not overlook the conventionthat penal statutes should be interpreted restrictively. It seems to me, in simpleterms, if an accused person has an intention to have a prohibited drug in hispossession, and either actively or passively, does an act which is " immediately or proximately connected " for the purpose of securingpossession he or she has committed an offence. It is an understandableconcept and, in my view, meets policy requirements.[19] Grant has been cited on a number of occasions in Australia, including in theHigh Court of Australia. In Beckwith v R, Gibbs J observed:23It was also submitted on behalf of the appellant that in the nature of thingsthere cannot be such an offence as attempting to have in possession. It isof course obvious that it is possible to attempt to obtain or acquire possessionof something. The words "has in his [or her] possession" are not synonymouswith "gets possession of"; the latter expression connotes activity, the formera state of affairs.The Judge went on to refer to Grant. He commented:24It would not be right to express any view as to the correctness of the decisionin Reg v Grant which may depend on the particular words of theNew Zealand statutes. However, if a legislature provided in terms that itshould be an offence to attempt to have possession of a narcotic there wouldin my opinion be no difficulty in giving effect to the intention so expressed.An act which would constitute an attempt to get possession of a narcotic wouldin those circumstances also be regarded as constituting an attempt to havepossession of the narcotic. I am unable to agree that the only act which wouldbe capable of being described as an attempt to have possession would bethe act of getting possession.19 At 68.20 At 68.21 R v G [2006] DCR 1; and see Ngamoki v R HC Palmerston North T5/97, 7 November 1997.For academic comment, see Don Mathias Misuse of Drugs (online ed, Thomson Reuters)at [11.15].22 At [42].23 Beckwith v R (1976) 135 CLR 569 at 575.24 At 575–576.[20] Other Judges in Australia have referred to Grant without expressing a view asto whether they agreed with the views expressed by Mahon J.25 In some states Judgeshave accepted that possession is not an activity but a state of affairs, relying on bothBeckwith and Grant.26[21] In our view, Grant was wrongly decided. We prefer the approach of Speight Jin Willoughby.[22] Parliament, in the Misuse of Drugs Act, has made it an offence for a person tohave any controlled drug in his or her possession for any one or more of a number ofproscribed purposes. Having a drug in one's possession for a proscribed purpose is astate of affairs. It is also an offence. A person who intends to bring about this state ofaffairs and commit this offence, and to that end does or omits an act for the purpose ofaccomplishing this object, also commits an offence under s 72 of the Crimes Act.The section criminalises attempts to commit any offence, whether under theCrimes Act or any other enactment.27 The plain wording of s 72 makes it an offenceto attempt to possess a controlled drug if the person who makes the attempt:(a) intends to take or assume possession of the drug for one or more of thepurposes proscribed by s 6(1)(f) of the Misuse of Drugs Act; and(b) undertakes or omits an act to accomplish this purpose or thosepurposes, provided the act done or omitted was sufficient in law toamount to an attempt (s 72(2) and (3)).[23] The statutory provisions are clear on their face and it is not necessary to straintheir interpretation to reach this view. Some commentators have suggested that it isbetter English usage to allege an attempt to procure rather than an attempt to havepossession.28 Indeed, s 25(2)(b) of the Misuse of Drugs Act refers to attempts25 See for example Nirta v R (1983) 51 ALR 53 (FCA) at 63; Commonwealth of Australia v Riley(1984) 5 FCR 8 at 24; and R v Carusi (1989) 17 NSWLR 516 (NSWCCA) at 534.26 See for example R v Brauer [1990] 1 Qd R 332 (QCCA) at 360; Tasmania v Spence [2008] TASSC32, (2008) 17 Tas R 295 at [6]; Dickfoss v Director of Public Prosecutions [2012] NTCA 1, (2012)31 NTLR 16 at [26]; and Chenhall v Mosel [2013] NTSC 19 at [8].27 Police v Radhi [2014] NZCA 327, [2014] NZAR 1019 at [34]; leave to appeal was declined inRadhi v Police [2014] NZSC 135.28 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [MD7.02].to procure a controlled drug. Statutes however have never been a safe haven for thegrammarian and the interpretation we prefer does no violence to the legislativeprovisions. Rather, the conclusion we have reached is consistent with the overarchingpurpose of the Misuse of Drugs Act — namely to prevent the misuse of drugs,to classify controlled drugs based on the risk of harm each drug poses to individualsor to society by its misuse, and to criminalise various drug-related activities includingthe manufacture, supply, sale and administration of controlled drugs. We agree withSpeight J that unless there is an offence of attempted possession of a controlled drugfor the purpose of supply, there would be a gap in the Act.[24] We acknowledge that s 7(1) of the Misuse of Drugs Act provides that no personshall procure any controlled drug, that s 25(2) refers to attempts to procure a controlleddrug, and that procurement is the getting of possession of a controlled drug foroneself.29 The offence in s 7(1) is a separate offence. It is subject to a lesser penaltythan the offence of possession of a controlled drug for the purpose of supply in s 6(1)30and the Act does not refer to an offence of procurement of any controlled drug for thepurpose of supply. The actus reus involved in attempted procurement and attemptedpossession for supply is however the same. It is the mens rea that differs. An attemptto possess for supply and an attempt to procure for oneself could be separately chargedin respect of the same batch of a controlled drug if the defendant intended to use someof the drug personally and supply the rest to others. The same act can result in thecommission of more than one offence, depending on the purpose for which the act isundertaken. Accordingly, we do not think it matters that the Misuse of Drugs Act doesnot explicitly refer to an offence of procurement of a controlled drug for the purposeof supply.[25] The conclusion we have reached is also consistent with the approach taken bythe courts in this country over a number of years. Judges in both the High Court andDistrict Court have accepted, albeit without detailed discussion, that there is an offenceof attempted possession of a prohibited substance or thing.31 Further, this Court has29 R v Mills [1963] 1 QB 522 (Crim App).30 Compare Misuse of Drugs Act, s 6(2) and s 7(2).31 See for example R v Chien [2019] NZDC 4956; R v Agu [2017] NZHC 248 (both sentencing forattempted possession of methamphetamine for supply); and R v Anchondo [2018] NZHC 1978(sentencing for attempted possession of cocaine for supply).recognised that there is an offence of attempted possession of a controlled drug orother item. We note the following:(a) Various sentence appeals have proceeded on the basis that there isan offence of attempted possession of controlled drugs.32(b) In Liu v R, the trial Judge granted the Crown leave to substitute a chargeof possession of ephedrine for the purpose of supply with the lessercharge of attempted possession for the purpose of supply, given theappellant never actually collected the drug.33 This Court observed thatit was "incontrovertible that Mr Liu's purpose was to supply theconsignment to others" and dismissed the appeal.34(c) In Carson v R, the appellant pleaded guilty to possession of LSD forthe purpose of supply.35 It was discovered after sentencing that theLSD tablets did not in fact contain LSD or any other illegal drug.This Court agreed with counsel that the conviction should be quashedand a retrial ordered, which would allow the Crown to seek to lay anamended charge of attempted possession for the purpose of supply.36(d) In Lenaghan v R, the appellant was found guilty by a jury of possessingthe precursor substance hypophosphorous acid with the intention that itbe used for the purpose of manufacturing methamphetamine.37The appellant had ordered 2.5 litres of hypophosphorous acid froma chemical supply company and paid the purchase price. When he wentto pick up his order, he received a polystyrene box labelled ascontaining hypophosphorous acid. The police however did not analysethe chemical found in the polystyrene box to determine whether it wasin fact hypophosphorous acid. On appeal, one of the issues was32 See for example R v Halsey CA221/96, 15 November 1996; and R v O'Donnell CA101/96,1 August 1996.33 Liu v R [2017] NZCA 573, [2018] 2 NZLR 697.34 At [45].35 Carson v R [2008] NZCA 270.36 At [4] and [10].37 Lenaghan v R [2008] NZCA 123.whether there was an adequate evidential basis for the jury's conclusionthat the appellant had possession of hypophosphorous acid. This Courtheld that there was, but also noted that had it taken a different view,it would have substituted a conviction for attempted possession.38(e) In Nichols v R, the appellant was convicted of attempted possession ofunauthorised goods under the Biosecurity Act 1993.39 He had arrangedwith a co-offender, Mr Nitschke, to import prohibited reptiles intoNew Zealand. However, Mr Nitschke was apprehended at the airportand charged under s 154(f) of the Biosecurity Act, which provided that:Every person commits an offence against this Act who [h]asunauthorised goods in his or her possession or control, knowingthat they are unauthorised goods.Relevantly, unauthorised goods meant goods that were in a place thatwas not a transitional facility, a biosecurity control area ora containment facility. Mr Nitschke could only be convicted ofattempted possession of unauthorised goods because, as he wasapprehended in a biosecurity area of the airport, the reptiles neverbecame unauthorised goods. However, had he not been apprehended,and had he achieved his object of bringing the reptiles throughbiosecurity, he would have then been in possession of unauthorisedgoods. One of the appeal grounds was that the trial Judge failed toproperly direct the jury concerning the circumstances in which a personmay be convicted of an attempt to possess goods where possession ofsuch goods is unlawful. It was submitted that this:40 would have exposed a contentious legal issue namelywhether it is generally possible to commit an offence of"attempting to possess" something.38 At [18].39 Nichols v R CA26/98, 7 July 1998.40 At 10.This Court said:41Whatever may have been the situation of Nitschke when he wasdispossessed of the reptiles as regards any "biosecurity controlarea" or "transitional facility" his object was to carry thereptiles past those areas without clearance whereupon theywould be unauthorised goods. His possession then would havebeen of those unauthorised goods.It was not an allegation of acquiring possession of,or attempting to possess, goods of which he was already inpossession. It was a case of attempting to get himself into thelocation where his possession would be of unauthorised goods(as defined). The offence of knowingly being in possession ofunauthorised goods requires a state of affairs elements of whichare possession, goods within the definition of unauthorisedgoods and knowledge. Attempting to bring unauthorised goodsinto the country would be to attempt to bring about theprohibited state of affairs. When bringing goods into thecountry without clearance the element of possession does notchange but the status of the goods changes to unauthorisedgoods once they are beyond a biosecurity control area and donot have clearance. To attempt to do that is to attempt to havein your possession unauthorised goods. In fact that is what theevidence showed Nitschke was convicted of These various decisions, either expressly or implicitly, proceeded on the basis thatattempted possession of a prohibited item or substance for the purpose of supply canbe an offence in New Zealand. We do not consider that they were wrong to do so.[26] The view we have taken is also consistent with the way in which the same issuehas been approached in various overseas jurisdictions.42[27] Each case of course falls to be determined by reference to the applicablestatutory provisions in issue. It is, in our view, clear from s 6 of the Misuse of DrugsAct and s 72 of the Crimes Act that there is an offence of attempted possession ofa controlled drug for the purpose of supply in this country. The charge was properlylaid and Ms Mesman's plea cannot be impugned.41 At 10–11 (emphasis added).42 See People v Siu 271 P 2d 575 (Cal Dist Ct App 1954) at 577; and People v Foster 91 NE 2d 875(NY 1950) at 876 (United States); Beckwith v R, above n 23 (Australia); Docherty v Brown 1996SCCR 136 (HCJAC) (Scotland); R v Chan (2003) 178 CCC (3d) 269 (ONCA) at [47]–[70]; andR v Codina (1999) 132 CCC (3d) 338 (ONCA) at [17] (Canada).Result[28] For the reasons we have set out, the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent