IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI CRI [2015] NZHC 1127 TAFFY TE WHIWHI MIHINUI TRACY-LEE ENOKA

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI CRI [2015] NZHC 1127 TAFFY TE WHIWHI MIHINUI TRACY-LEE ENOKA v NEW ZEALAND POLICE Hearing: 18 May 2015 Appearances: Cate Andersen for the Appellants Jasper Rhodes for the Crown Judgment: 26 May 2015 JUDGMENT OF MOORE J This judgment was delivered by me on 26 May 2015 at 11:00am pursuant to Rule 11.5 of the High Court Rules. Registrar/ Deputy Registrar Date: MIHINUI & ANOR v NEW ZEALAND POLICE [2015] NZHC 1127 [26 May 2015]

2 [1] Mr Mihinui and Ms Enoka each pleaded guilty to one charge of possessing a non-approved psychoactive substance for supply contrary to s 70(1)(c) of the Psychoactive Substances Act 2013 ( the Act ). They appeal against their convictions on the ground that the Judge was wrong to find the substance in their possession was psychoactive. Preliminary jurisdictional issue [2] Their pleas follow the delivery of a reserved decision of Judge Bidois in which, in relation to the case against Ms Enoka, he concluded that the substances in question were psychoactive. 1 It appears that the hearing before Judge Bidois was in the nature of a pre-trial ruling with the Court having before it witness statements from scientific experts on the question of the psychoactive qualities of the material in question. In argument before me it was initially submitted that this was a pre-trial evidential determination. However, in the course of fuller oral submissions it emerged the argument before Judge Bidois was conducted more in the nature of a no case to answer submission and on that basis his Honour heard the argument and reserved his decision. [3] Prior to the passing of the Criminal Procedure Act 2011 ( the CPA ) the powers of the Court to deal with the dismissal of indictable and summary charges was quite different. However, under the CPA, the previously variegated scheme has been replaced with a unitary approach to the dismissal of charges regardless of their category. All dismissals are dealt with under s 147 of the CPA. [4] This power may be exercised either before or during the trial. The question in the present inquiry is what rights of appeal exist once a decision is made under s 147. [5] Certain pre-trial decisions may be appealed pursuant to ss 215, 217 and 218 of the CPA. Section 215 deals with the right of appeal against certain pre-trial evidential decisions in Judge-alone cases. However, the section does not grant a 1 Police v Enoka [2015] NZDC 454.

3 right of appeal against decisions under s 147. Sections 217 and 218 apply only to jury trials. [6] It follows that Part 6, subpart 2, of the CPA does not provide the jurisdiction for an appeal against Judge Bidois decision. [7] Section 296 of the CPA provides the jurisdiction to appeal on a question of law only. This section expressly recognises a right of appeal on a question of law on a decision under s 147, provided only that the appeal does not arise from a jury verdict and has not previously been appealed under subpart 2 (which does not grant a right of appeal against s 147). [8] As such, where a pre-trial determination has been made under s 147 of the CPA, an appeal may be brought on a question of law under s 196 of the CPA. Where such an appeal is brought the Court may exercise the powers set out in s 300(1) of the CPA. These include confirming the ruling, 2 setting aside the conviction and entering an acquittal, 3 directing a new trial, 4 varying or substituting the sentence or remitting the sentence to the sentencing Court with directions, 5 remitting the matter to the trial Court in accordance with the opinion of the appeal Court 6 or making any other order that the Court considers justice requires 7. [9] In the present case a further route of appeal exists through ss of the CPA by way of an appeal against conviction. Such appeals are to be determined under s 232 which provides as follows: 232 First appeal court to determine appeal (1) A first appeal court must determine a first appeal under this subpart in accordance with this section. (2) The first appeal court must allow a first appeal under this subpart if satisfied that, Criminal Procedure Act 2011, s 300(1)(a). Section 300(1)(b)(i). Section 300(1)(b)(ii). Section 300(1)(c). Section 300(1)(d). Section 300(1)(e).

4 (b) (c) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or in any case, a miscarriage of justice has occurred for any reason. (3) The first appeal court must dismiss a first appeal under this subpart in any other case. (4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that (a) (b) has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity. (5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty. [10] This section expressly provides that the defendant may appeal following a guilty plea. In such a case, the appeal must be based on s 232(2)(c). The defendant must appeal on the basis that a miscarriage of justice has occurred. The section frames this ground of appeal in the widest possible terms. It plainly encompasses the situation where a miscarriage justice results from pre-trial decision on a question of law. [11] This was one of the possible grounds for a finding of a miscarriage of justice in the Court of Appeal s decision in R v Le Page 8. There the Court of Appeal observed: It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch 9 and R v Ripia 10 are examples R v Le Page [2005] 2 NZLR 845 (CA) at [16] to [19]. R v Stretch [1982] 1 NZLR (CA). R v Ripia [1985] 1 NZLR 122 (CA).

5 [12] An incorrect decision under s 147 which leads to a defendant pleading guilty would be covered by the third category under Le Page. 11 [13] I am satisfied that the present appeal may be determined under s 232 of the CPA. In such an appeal the Court enjoys extensive powers in the event of a successful appeal. These include setting aside the conviction in which case the Court is required to make specified consequential orders. [14] By way of conclusion, while the jurisdiction to appeal against a pre-trial decision generally does not apply to decisions under s 147 there are, nonetheless, two rights of appeal which exist to assist the appellants in the present case. The first, which applies immediately from the time when the decision is made, is an appeal on a question of law pursuant to s 296 of the CPA. The second, which applies at any time after the defendant is convicted as a result of the decision, is an appeal against conviction pursuant to s 229 of the CPA. In either case, the appellate Court has the power to uphold the decision, to remit it to the trial Court for a re-determination or to acquit the appellant. [15] Mr Mihinui s and Ms Enoka s defence before Judge Bidois was that the prosecution had not proved that the plant material found in their possession met the definition of a psychoactive substance. They did not challenge possession or the purpose of supply. Judge Bidois determined that the Police had satisfied him that there was sufficient evidence to prove that the material seized was, in fact, a psychoactive substance. As a consequence of this finding Mr Mihinui and Ms Enoka pleaded guilty. [16] I am satisfied that an appeal from this determination satisfies the requirements of s 232(2)(b) in that the appellants challenge is that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred and, accordingly, I proceed on the basis that this Court has jurisdiction to hear and determine this appeal. 11 R v Le Page, above n 8, at [19].

6 Background [17] The charges faced by Mr Mihinui and Ms Enoka arise from a Police search as a result of which a significant quantity of synthetic cannabis was located. Neither Mr Mihinui nor Ms Enoka has denied possession nor that they intended selling the material in question. The sole issue on this appeal is whether the material is a psychoactive substance within the meaning of s 9 of the Act. [18] Two matters arise. (a) First, what was the active ingredient in the items found in Mr Mihinui and Ms Enoka s possession? (b) Secondly, does that ingredient meet the definition of a psychoactive substance? [19] In support of the charges in the District Court the Crown filed a witness statement from a scientist attached to the drugs group of the Institute of Environmental Science and Research Limited ( ESR ). That report concluded that the plant material found in the possession of Mr Mihinui and Ms Enoka weighed 13.5 grams and contained the synthetic cannabinoids known as JWH-018 and JWH [20] The Crown also filed a brief of evidence from Dr Jessamine, a registered medical practitioner who, in July 2013, was seconded to the team at the Ministry of Health charged with developing a regulatory scheme to support legislation allowing the sale of psychoactive substances in New Zealand. He provided regulatory advice to the policy team responsible for amending the Act and, in May 2014, took over responsibility for the administration of the Act and its associated regulations. [21] In his brief he stated that the Act came into force on 18 July Its purpose was to regulate the availability of psychoactive substances in New Zealand. He described how the Act set up the system of pre-market approval for psychoactive products by requiring applicants to demonstrate that the products posed no more than

7 a low risk of harm to the individual who used them and by placing restrictions on how and to whom they can be sold. [22] Dr Jessamine described JWH-018 and JWH-200 as analgesic chemicals which act as synthetic cannabinoid receptor agonists. 12 He confirmed that both substances contained chemicals which mimic the effect of THC, the active ingredient of cannabis. He said that they act on the receptors of the brain to produce a psychoactive effect on the mind of the individual using the substance. [23] He confirmed that the substances fit the description of a psychoactive substance under the Act as they are capable of producing a psychoactive effect as defined in the Act. [24] His brief also made mention of the fact the chemicals concerned were previously banned under the Temporary Class Drug Notice ( the Temporary Notice ) issued by the Associate Minister of Health under the Misuse of Drugs Act Decision of Judge Bidois [25] The hearing before Judge Bidois turned on whether the items were psychoactive substances under the Act. In answering this question, his Honour considered the background and purpose to the legislation and referred, on more than occasion, to the reverse onus which the Act has created for manufacturers who wish to sell psychoactive products. Under the Act, such manufacturers are required to satisfy the Ministry of Health that the risk of harm from their product is low before it will be permitted for sale. This regime operates in substitution for its predecessor which required banned substances to be gazetted as such. The difficulty with that regime was that it was cumbersome and inflexible. The former regime failed to keep abreast of the rapidly evolving nature of psychoactive substances. It was not possible to future proof the former regime from new substances developed to avoid the classifications. The new regime places the onus on the manufacturer or vendor to satisfy the Ministry of Health the substance should be gazetted as an exception to the general prohibition on the sale of psychoactive substances. 12 A synthetic cannabinoid receptor agonist is a chemical which binds to the same cannabinoid receptors in the brain as THC to produce a biological response.

8 [26] His Honour rejected an argument that the repeal of the Temporary Notice led to the conclusion that JWH-018 and JWH-200 are not psychoactive. Instead, Judge Bidois considered the evidence of Dr Jessamine as to the effects of these chemicals and concluded that they were psychoactive within the meaning of the Act. [27] He then considered an argument that the plant material was excluded from the definition of the Act because they were herbal remedies. His Honour adopted a purposive interpretation of this exclusion, concluding that the legislation was intended to ban precisely this kind of product and thus the exclusion should not be construed widely enough to avoid that effect. [28] His Honour concluded that the Police had provided sufficient evidence to satisfy him that the material seized were psychoactive substances. Appellant s submissions [29] Ms Andersen, for Mr Mihinui and Ms Enoka, advanced four arguments on appeal, namely: (a) the Judge wrongly applied a reverse onus in determining whether the items were psychoactive; (b) his Honour wrongly relied on the Temporary Notice to conclude that the items were psychoactive; (c) the effects of JWH-018 and JWH-200 do not justify those substances being defined as psychoactive; and (d) the substances fall within the herbal remedies exclusion to the Act. [30] I shall turn to consider each of these issues. Reverse onus [31] The Act created a new regime for psychoactive drugs. As noted earlier, under the previous statutory regime a substance was only prohibited if it was specifically

9 identified by the Associate Minister of Health and notified in a Temporary Drug Class Notice issued under the Misuse of Drugs Act However, under the new regime, any psychoactive substance is presumptively banned unless and until the manufacturer is able to satisfy the Ministry of Health that it carries with it only a low risk of harm. Unsurprisingly, some substances which meet the definition of psychoactive have been specifically excluded from the Act. These include alcohol and tobacco. [32] This reserve onus was identified by the Judge in his decision. He used this expression to explain the background to the approval process and the nature of the new statutory scheme. It is clear from reading the judgment as a whole that if the material in question was psychoactive the substances would be banned under the Act. [33] Ms Andersen submits that it can be inferred the Judge wrongly applied a reverse onus to the question of whether the items seized were psychoactive substances. The consequence of this submission is that inferentially his Honour required the appellants to prove the substances were not psychoactive. [34] I do not agree. It is plain from reading the whole of the judgment that the references the Judge made to the reverse onus were made in the context of explaining how the new statutory regime operates and, in particular, the obligations placed on manufacturers to satisfy the Associate Minister of Health that a particular psychoactive substance carries with it only a low risk of harm. He did not apply a reserve onus to the question of whether the product in question was psychoactive and a reading of the judgment as a whole conveys this. [35] This ground of appeal must fail. Temporary Notice [36] Ms Andersen submits that Judge Bidois conclusion that the seized items were psychoactive wrongly relied on the now repealed Temporary Drug Class Notice. In oral argument before me it emerged that this submission s origin is to be found in Dr Jessamine s brief of evidence which refers to the Temporary Notice.

10 [37] As I understood Ms Andersen s submission it was that the Court cannot now rely on a repealed document in determining whether a particular substance is psychoactive. Ms Andersen submits that this determination must be made without reference to the former statutory scheme. She submits that this is a necessary consequence of Parliament s decision to abandon the former approach requiring prohibited substances to be specified in schedules. [38] I cannot agree. While I am not convinced that the fact a drug was previously banned by a Temporary Notice is irrelevant, I am satisfied that in the present case neither the Judge nor Dr Jessamine relied on the Temporary Notice to justify their conclusions that JWH-018 and JWH-200 are psychoactive. [39] Dr Jessamine s evidence dealt with the manufacture, composition and effect of synthetic cannabinoids, including JWH-018 and JWH-200. In describing these chemicals the doctor set out their full organic/chemical names and description. In explaining the properties of JWH-018 he described it as: An analgesic chemical that acts as a full agonist at both CB1 and CB2 cannabinoid receptors, with some selectivity for CB2. [40] He described JWH-200 as: An analgesic chemical that acts as a cannabinoid receptor agonist. Its binding affinity at the CB1 receptor is around the same as that of THC. [41] This is plainly a description of the chemical and pharmacological qualities of the substances and what parts of the human brain they affect. References to recent studies and literature were cited. [42] Dr Jessamine also described the pharmacological effect of the chemicals saying: The agonistic activity of synthetic cannabinoids on the CB1 receptor is responsible for elevating mood and inducing a feeling of well-being, thereby meeting the definition of psychoactive effect outlined in section 8 of the Act. Some users have reported effects similar to or even stronger than those obtained by smoking cannabis, such as physical relaxation, changes in perception and mild euphoria.

11 [43] Again, Dr Jessamine referred to recent studies. He also made reference to the various adverse effects of synthetic cannabinoids including: disconnection from thoughts, feelings, memories and sense of identity agitation, anxiety and paranoia and psychosis, sometimes lasting for several days. [44] It was on the basis of this analysis that Dr Jessamine concluded that the chemicals in question were psychoactive. While he also provided a helpful summary of the legal status and history of both JWH-018 and JWH-200, including their previous status under the notices, this did not form part of his analysis when he concluded that both substances fitted the definition of a psychoactive substance under the Act. It is plain that his opinion was based on his expertise, his research and the academic literature appended as references to his brief of evidence. While in the course of his description he referred to the Temporary Notices I am satisfied that this was only to provide context. His opinion was not predicated or reliant on the previous classifications. [45] I am equally satisfied that the Judge did not rely on the Temporary Notices in determining that the chemicals are psychoactive substances. While the Judge did make reference to the previous status of the chemicals, he relied, independently, on the evidence of Dr Jessamine as to the effects of those chemicals. In particular he referred to the definition of a psychoactive substance in terms of s 9(1) of the Act, namely a substance, mixture, preparation, article, device, or thing that is capable of inducing a psychoactive effect (by any means) in an individual. The definition of psychoactive effect is to be found in s 8 of the Act and it was in this context his Honour quoted Dr Jessamine in the following fashion: 13 Given Dr Jessamine s description of effect, being elevated mood and inducing a feeling of well-being, in my view this meets the definition of a psychoactive substance in s 8 and this argument must fail. [46] It follows that this ground of appeal must also fail. 13 R v Enoka, above n 1, at [23].

12 Psychoactive effect [47] Ms Andersen submits that even if I was to conclude that Judge Bidois did not rely on the Temporary Notices in reaching his decision he was, nonetheless, in error when he determined that the chemicals were psychoactive. In the course of oral argument before me it became clear that the essence of this submission relies on the circular nature of the definitions found in ss 8 and 9 of the Act. Section 9 provides that a substance is psychoactive if it has a psychoactive effect. Section 8 provides that a psychoactive effect is one which is produced when a person consumes a psychoactive substance. [48] While I agree with Ms Andersen this definition is circular it does not preclude the Court from giving effect to its obvious intended meaning. It is generally accepted that words and statutes should be given their ordinary and natural meaning having regard to the purposes of the Act in which they are contained. This Act is no exception. [49] Whether a substance is psychoactive depends on the effect it has on the consciousness or mind of the individual who consumes it. The language is deliberately broad. It encompasses a wide range of effects. I am satisfied that elevated moods and a feeling of well-being are descriptions of mood change sufficient to meet the definition, particularly given the comments of Dr Jessamine in relation to the similarity between cannabis and the substances in question. [50] It follows I have no doubt that JWH-018 and JWH-200 are psychoactive substances for the purposes of s 9 of the Act. [51] This ground of appeal must also thus fail. Herbal remedy [52] Ms Andersen s final submission is that even if I was to find that the chemicals were psychoactive substances under the Act they are caught by the herbal remedy exception.

13 [53] Section 9 defines psychoactive substances which are prohibited by the Act. However, subsection 3 also provides for certain categories of psychoactive substances which are exempted from this ban. Relevant to the present enquiry is subsection 3(h) which provides that a substance is not psychoactive if it is a herbal remedy within the meaning given to that term under s 2(1) of the Medicines Act The relevant portion of the Medicines Act is as follows: herbal remedy means a medicine (not being or containing a prescription medicine, or a restricted medicine, or a pharmacy-only medicine) consisting of (a) (b) (c) any substance produced by subjecting a plant to drying, crushing, or any other similar process; or a mixture comprising 2 or more such substances only; or a mixture comprising 1 or more such substances with water or ethyl alcohol or any inert substance. [54] Ms Andersen submits that the plant material seized falls within paragraph (b) of the definition, being: A mixture comprising two or more such substances only [55] In Dr Jessamine s brief he explained how products of this kind are manufactured. The plant material which provides the base of the product is a herb with inert qualities. Plants such as damiana or verbascum are frequently used. These are not psychoactive in themselves but becomes so when they are sprayed or dipped in a solvent containing the active ingredient. [56] Ms Andersen does not dispute that the seized material was produced or manufactured in this fashion. The question is whether the mixture described in paragraph (b) of the definition refers to a mixture comprised of two different herbal remedies or whether it includes a mixture of a herbal remedy with any other substance. Ms Andersen submits the second interpretation is to be preferred. [57] In my view such an interpretation is strained. It is plain that through the use of the word such in the phrase such substances, only those substances which would otherwise satisfy the definition of a herbal remedy will satisfy the subsection.

14 Paragraph (b) is intended to protect mixtures of herbal remedies. It is not designed to allow for sale any substance which is mixed with a herbal remedy. [58] I consider this ground of appeal must also fail. Result [59] For the reasons set out above, the appeal is dismissed. Moore J Solicitors: Ms Andersen, Tauranga Crown Solicitor, Tauranga