Crown v Neilson [2011] CKHC 71; CR676.2011 (15 December 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR 676/11

CROWN

V

CYRUS DAVID NIELSEN

Hearing: 15 December 2011

Counsel: N Manavaroa for the Crown
W Rassmussen for the Prisoner

Judgment: 15 December 2011

DECISION OF THE HONOURABLE GRICE J
[As to application under s 6minal Procedure Act]

[1] The prisoner appeared this morning for sentencing on a charge of a possession of a utensil to smoke marijuana.

[2] The utensil was a bong and the utensil had been seized from Mr Neilson's lu when he arriverrived from New Zealand on 6 November 2011.

[3] Mr Neilson subsequently pleaded guilty to that charge ans appeared before me for sentencing this morning.

[4] In the course of submissionssions by his counsel, Mr Rasmussen, which were produced last evening, it became clear that Mr Neilson did not accept that he had the bong for the purposes of an offence under the Narcotics and Misuse of Drugs Act 2004. The relevaovisions arns are s 13(1)(a) and):

13. Miscellaneous offences – (1) Every person commits an offence against this Act who –

(a) has at pes possession any any pipe or other utensil (not being a ne a needle or syringe) for the purpose of the commission of an offence against this Act.

(2) Every person who commits an offence against this section is liable to imprisonment for a term up to 5 years or to a fine up to $5,000 or to both.

[5] Those provisions require not only the possession of the utensil but also a purpose.

[6] It appeared that Mr Neilson did not accept that he had the bong for unlawful purposes, but rather, he used the bong for the purposes of taking tobacco.

[7] After some discussion Mr Rassmussen chose to make an application to withdraw the plea of guilty to the charge and sought leave of the Court to so withdraw.

[8] The Crown indicated that they would not oppose the application for withdrawing the plea of guilty, but they would not consent.

[9] The matter was stood down for Mr Rassmussen to take further instructions.

[10] Mr Rassmussen then made submissions in support of his application to withdraw the guilty plea and, essentially, the basis appears to be that Mr Neilson has always been of the view that he never had it for the unlawful purpose under the Narcotics and Misuse of Drugs Act, he always had it for tobacco, and he did not fully understand the import of pleading guilty to the charge and the implications that that would have in terms of his position.

[11] The event is relatively recent. Mr Neilson needs to go back to New Zealand over the Christmas break and proposes returning to the Cook Islands.

[12] Police indicate that they have nothing to add to the submissions and that they did not oppose in the circumstances.

[13] This is a most unusual circumstance. It is very unusual to give leave to withdraw a plea of guilty, particularly where the accused has had legal advice the grounds are very difficult to establish.

[14] In the circumstances, it is very clear that Mr Neilson had no idea that he was admitting that he had the bong for the unlawful purposes, and that his whole approach was that he did not.

[15] Accordingly, I am of the view that there is a risk of miscarriage of justice if the application is not granted. I am also assisted by the Crown and their attitude to it in not opposing it in the circumstances.

[16] I grant leave to withdraw the plea of guilty under s 68 of the Criminal durce#160;Act.

Grice J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.