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What is an ‘attempt’? Supreme Court knocks back a novel defence

31 Mar 2023

| Author: Hannah Hellyer

At the District Court, Te Ata Patricia Mesman pleaded guilty to attempting to possess methamphetamine for supply. She was sentenced to 12 months’ intensive supervision with rehabilitation-related conditions.


Mesman sought leave to appeal against conviction to the Supreme Court. The question raised was whether attempted possession of methamphetamine for supply is an offence known to New Zealand law.


At the Court of Appeal and Supreme Court, Mesman argued that possession is a status, not an act or omission, and a status cannot be an attempt. In both courts she relied on the 1975 decision of Mahon J in R v Grant [1975] 2 NZLR 165 (SC).


The Court of Appeal held that Grant was wrongly decided, and the case of R v Willoughby [1980] 1 NZLR 66 (SC) correctly represents the law.


The court reasoned that Parliament, in the Misuse of Drugs Act, has made it an offence for a person to have any controlled drug in their possession, for any one or more of a number of proscribed purposes. This is considered to be a state of affairs – and is also an offence.


A person who intends to bring about this state of affairs and commit this offence, and to that end does or omits an act for the purpose of accomplishing this object, also commits an offence under s 72 of the Crimes Act. This section criminalises attempts to commit any offence.


The plain wording of this section makes it an offence to attempt to possess a controlled drug if the person who makes the attempt intends to take or assume possession of the drug for one or more of the purposes proscribed by s 6(1)(f) of the Misuse of Drugs Act and undertakes or omits an act to accomplish this purpose or those purposes, provided the act done or omitted was sufficient in law to amount to an attempt under s 72(2) and (3).


The court found these statutory provisions are clear on their face and the conclusion reached is consistent with the overarching purpose of the Misuse of Drugs Act. Unless there is an offence of attempted possession of a controlled drug for the purpose of supply, there would be a gap in the legislation, the court said.


Held: The application raised a potential question of general or public importance. However, the low prospect of success meant the granting of leave was not warranted. Accordingly, no risk of miscarriage of justice if leave was not granted. Application for leave to appeal dismissed.

Hannah Hellyer is an Auckland criminal defence barrister, and member of the ADLS Criminal Law Committee and Parole Law Committee 

Mesman v R [2023] NZSC 25

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