Edmond v The King
[2024] NZHC 1182
•13 May 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2023-476-18
[2024] NZHC 1182
BETWEEN MARK ANDREW EDMOND
Appellant
AND
THE KING
Respondent
Hearing: 9 April 2024 Appearances:
T J Jackson for Appellant
S M H McManus for Crown
Judgment:
13 May 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 13 May 2024 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
EDMOND v R [2024] NZHC 1182 [13 May 2024]
[1] Mark Edmond was found guilty following a Judge alone trial in the Timaru District Court1 of two charges of offering to supply methamphetamine,2 a representative charge of supplying that drug,3 and failing to comply with a search obligation.4 He appeals his convictions on the basis of alleged errors by the trial Judge which he maintains have resulted in a miscarriage of justice.
Background
[2] In June 2021, the police commenced an investigation into alleged methamphetamine dealing in the South Canterbury region. One of the persons targeted was a woman by the name of Shania Aitken.5 Analysis of her phone data indicated her involvement in the trafficking of methamphetamine and frequent contact with Mr Edmond. This, in turn, led to analysis of his text messages and call data.
The alleged offending
[3] It was the Crown’s case that between 14 May and 24 June 2021, Mr Edmond had supplied Ms Aitken with methamphetamine on at least 11 occasions. Mr Edmond would meet with Ms Aitken for the purpose of supplying the methamphetamine and collecting payment. The representative charge of supplying methamphetamine reflected this activity.
[4] The two discrete charges of offering to supply methamphetamine were also based on electronic communications. On the evening of 2 June 2021, Mr Edmond received a text message from an associate asking if he had “anything” as what he had was nearly gone. Mr Edmond responded by saying he would check but that he thought he did. He messaged the associate that he “gotta have heaps of dollars” and to call in around 9 pm. The associate responded by stating he had a “G” on him and would see him at 9 pm.
1 R v Edmond [2023] NZDC 7968.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2) — maximum penalty life imprisonment. Charges 1 and 2.
3 Section 6(1)(c) and (2) — maximum penalty life imprisonment. Charge 3.
4 Search and Surveillance Act 2012, s 178 — maximum penalty three months’ imprisonment. Charge 4.
5 Ms Aitken was also know by the name Shania Hayes.
[5] On 13 June 2021, Ms Aitken text Mr Edmond, “Did the tooth fairy arrive”, to which he replied, “Na but can shout u a sesh if u want”. Ms Aitken replied, “Na that’s a pain for ya and make me want more lol. Thanks tho”.
[6] At the end of the month the police operation was terminated and a number of search warrants executed, including at Mr Edmond’s address. There, the police located a mobile phone, $8,580 in cash and other items indicative of drug supply such as electronic scales and zip lock bags. During the search Mr Edmond was asked to provide access to the phone. He denied ownership and claimed to have never seen the device. However, data subsequently obtained from the phone revealed numerous text messages identifying Mr Edmond and voice mail messages to him from his mother.
The trial
[7] As part of its case, the Crown called Ms Aitken to give evidence. She had been interviewed at the conclusion of the police investigation and made a three and a half- hour video statement. Ms Aitken pleaded guilty to charges that included manufacturing methamphetamine and 27 counts of supplying methamphetamine between 14 May and 26 June 2021. She was ultimately sentenced on the basis of a sentence indication that included a 30 per cent discount for cooperation and a willingness to give evidence for the Crown.
[8] During Mr Edmond’s trial, leave was granted to the Crown to refresh Ms Aitken’s memory from the transcript of her police interview. An application was then made to have Ms Aitken declared hostile for the purpose of cross-examining her about her police statement. That opposed application was granted by the Judge.6
[9] The Crown also called evidence from an experienced police officer, Detective Sergeant James Simpson, to give his expert opinion about drug-related matters. He provided an opinion about coded language, in particular about the use of the word “coffee” in the texts between Mr Edmond and Ms Aitken. Detective Sergeant Simpson also expressed the view that Mr Edmond was a low-level dealer of methamphetamine and possibly other controlled drugs.
6 R v Edmond [2023] NZDC 7643.
[10] Objection was taken at trial to Detective Sergeant Simpson’s evidence on the basis his opinion involved giving evidence on the ultimate issue and that, in so doing, he had shown a degree of partiality which rendered his evidence inadmissible. The Judge declined to exclude Detective Sergeant Simpson’s opinion evidence.7
The appeal
[11] Mr Edmond advanced his appeal against his convictions on the drug charges on two bases. He alleged the trial Judge erred by:
(a)declaring Ms Aitken hostile and permitting the Crown to cross-examine her on her previous statement to police; and
(b)permitting Detective Sergeant Simpson to give expert evidence on the ultimate issue.
[12] In relation to the charge of failing to comply with the requirement of a search, it was further alleged the Judge erred in finding Mr Edmond did not have a reasonable excuse for not providing access to the mobile phone.
Declaration of hostility
[13] On behalf of Mr Edmond, Mr Jackson submitted the statutory threshold for declaring a witness hostile had not been met by Ms Aitken’s conduct in the witness box. He emphasised that, in addition to the witness’s evidence being inconsistent with an earlier statement made by the same witness, to achieve a hostility declaration the witness must have an actual or apparent intention to be unhelpful to the party calling them. Mr Jackson argued Ms Aitken had not exhibited such an intention, having offered answers where she was able to the questions asked and provided reasons for the difficulty she was having with her memory.
[14] It was submitted there was no proper basis to suggest Ms Aitken lacked veracity as a witness or was lying. In that regard, it was noted her earlier recorded police statement had not been made on oath, nor did it include any promise to tell the
7 R v Edmond [2023] NZDC 7778.
truth. Mr Jackson also argued the interview had been conducted in respect of her own offending prior to her arrest for unrelated charges and should not be treated as a “witness statement”.
[15] Mr Jackson submitted that, because the previous statement itself was unreliable, there was no basis upon which conclusions could be drawn as to inconsistencies with the evidence Ms Aitken gave in the witness box. Reliance was also placed on a second statement Ms Aitken had made in the form of an affidavit provided to Mr Edmond’s counsel which, it was submitted, was broadly consistent with her Court testimony.
Analysis
[16] A party who calls a witness may, if the Judge determines the witness is hostile, obtain permission to cross-examine that witness to the extent authorised.8 The statutory definition of “hostile” relevantly means that the witness:9
(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness.
[17] There are therefore two requirements of which a Judge must be satisfied before declaring a witness hostile on the basis of this definition. First, the evidence the witness has given must be inconsistent with a prior statement made by that witness. Second, the inconsistent evidence must have been given in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness, in this case to the Crown.
[18] Ms Aitken’s oral evidence at trial was significantly different to her recorded statement to police. Two examples illustrate how her evidence diverged from her
8 Evidence Act 2006, s 94.
9 Section 4 provides:
hostile, in relation to a witness, means that the witness—
(a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
(c) refuses to answer questions or deliberately withholds evidence
police statement. First, in one of her messages to Mr Edmond, Ms Aitken enquired, “hey is the road wet or bumping out there at the mo”. She told police this was code for whether the methamphetamine was wet or rocky/dry. Yet, during her evidence-in- chief, Ms Aitken maintained this was a reference to the weather and “whether it was raining or dry or anything like that”.
[19] Second, in her statement to police, Ms Aitken said she was being supplied methamphetamine by Mr Edmond. She told police the use of the word “coffee” in texts between them was a coded reference to methamphetamine. However, in her oral evidence, she gave varying explanations for “coffee”. Initially, she stated the references in the text messages were genuine arrangements to meet up for coffee. She said she would meet Mr Edmond to “vent to him” or ask him for advice and that she had become attracted to him. She said meeting up for coffee was an excuse for seeing him. Ms Aitken explicitly stated in her oral evidence, “I mean you gotta understand we weren’t talking about drug terminology in everything we talked about ever. Like its just jokes half the time”.
[20] Ms Aitken vacillated throughout her evidence-in-chief about the meaning of “coffee”. At one point, she stated that, “well coffee could be anything. Having coffee, could mean that, is many terminologies. Just usually trying to find something not to get caught on checks for anything which as you can see doesn’t help”. However, when pressed about what else coffee meant, she replied, “Coffee. Coffee. Usually just coffee I don’t know why I said it. I don’t know why I say a lot of things in texts”.
[21] Ms Aitken’s evidence, particularly about the central issue of Mr Edmond’s involvement with supplying methamphetamine, was inconsistent with her previous statement to police. Essentially, she informed police she was being supplied methamphetamine by Mr Edmond for the purpose of her own drug-dealing activities. However, the answers she gave in her oral evidence were not consistent with her having sourced methamphetamine from him. This is encapsulated in her varying explanations of the term “coffee”, which Ms Aitken had previously admitted to police was code for methamphetamine.
[22] Evidence given by a witness at trial that is inconsistent with a prior statement will not by itself be sufficient to categorise a witness as hostile. The witness must give such evidence in a manner that exhibits or appears to exhibit an intention to be unhelpful to the party who has called the witness. In his ruling, Judge Glubb canvassed the nature and content of Ms Aitken’s evidence up until the Crown’s application that she be declared hostile:10
[5] During the evidence thus far she has been taken through a number of text messages both from her phone and from the defendant’s, which have a similar vein. A common theme throughout is the reference to ‘coffee’ and a regular meeting up for ‘coffee’. She has also painted that in innocent terms in the sense that she was going for coffee at times, or that it could in fact relate to any number of things.
[6] The prosecution sought to refresh her memory from a statement made to the police on 1 July 2021 as to what ‘coffee’ meant. Before that application was made defence objected and signalled that he felt that the Crown was endeavouring to set up the situation where they could ask to have her declared hostile.
[7] As I directed it was entirely proper for Crown to refer her to that statement for the purpose of refreshing her memory given, she had maintained she had little memory of detail that was being led at that time.
[8] Before that statement was shown to her, she then unheralded announced to the Court that she had consumed a significant amount of methamphetamine at that time and so she had little memory of what transpired. The essence of that statement being that little weight could be placed on that statement in that set of circumstances.
The Judge concluded:
[13] ... I have watched her evidence carefully; I have listened carefully. I have listened to the way she has endeavoured to distance herself from any suggestion of involvement by the defendant and in any methamphetamine- related detail, she has steered clear of defining terms where that has been possible for her.
[14] She has come back essentially to a particular answer or rationale for the meetings, and I am satisfied that does meet the threshold of being unhelpful to the Crown and equally showing that intention.
[23] The Judge’s conclusion regarding Ms Aitken’s hostility is borne out in the passages of her evidence leading to the Crown’s application. These demonstrate the manner in which she exhibited or, leastwise, appeared to exhibit an intention to be
10 R v Edmond, above n 6.
unhelpful to the Crown. Ms Aitken was asked about a message she sent to Mr Edmond:
Q.Okay and then the next message you sent to Mr Edmond that evening on the 15th of May 2021 at 23:44:44 “So that coffee I just got someone has asked for twice that and will have moolah. Is that possible in your diary this evening.” Can you explain that message for me?
A. Mmm no 'cos I just – like I said I did not remember these events. If I could.
Q. And then almost immediately, oh so that’s 23:44 and then about 20 minutes later you're telling someone “I asked [Mr Edmond] as he was here not long ago” can you explain that for me?
A. No I can't because I can't remember it.
Q. Well looking at these messages –
A. Mhm.
Q. – what can you recall.
A. I mean I can't, I can't r – like I said I don’t hardly remember that whole month or two months 'cos I was pot so saying I remember it I just can't.
Q. So when you're talking about coffee on that occasion what are you talking about?
A. Well I don't know.
Q. Do you recall talking to the police about what coffee was?
A.No 'cos I don’t remember my interview because I ate half a gram before I had it so –
Q. Okay so you do recall having an interview with the police?
A. I do recall going there. I remember getting in the car with police officer and then I remember getting my toastie at the end but I don’t remember much else of that.
Q. And that interview was on the 1st of July 2021?
A. Mhm.
Q. And these messages here are on the 15th of May 2021?
A. Yeah and I don’t know how I’m supposed to remember that far back.
Q. So at the time of your interview there was only about six weeks between these messages and that interview?
A. And there’s two years.
Q. Two years now but –
A. Yeah.
Q.– between – so your memory’s not great now because it's been two years is that what you're saying?
A.Oh just in general and the interview with the police they basically told me that I had to ways to get my – get home to my kids that night. The easy way or the hard way and I just took half a gram of meth so I just babbled and pretty much told them what they wanted to hear so I would get home to my kids –
Q. That interview –
A. Oh I don’t even remember.
Q. – lasted for about three and half hours, is that correct?
A. I know because I was wasted. I was wasted.
Q.You spoke to them for a – the police officer Regan Turner for about three and a half hours?
A.I know 'cos I had the equivalent of 20 grams of speed in my body so I was yapping.
Q. But you recall that you gave that video interview?
A. No I don't remember what I said.
Q. But you recall that you did give that interview?
A. Yeah I was definitely there for three and a half hours.
Q.Would it assist you to remember what you said if you looked at the transcript?
A. If you want yeah sure.
[24] At that point, Crown counsel was granted leave to refer the witness to the transcript of her police interview for the purpose of refreshing her memory. Ms Aitken was referred to passages of her recorded statement in which she confirmed that “coffee” was “methamphetamine”. There was also a coded message to Mr Edmond asking whether “is the road wet or is it bumping out”, which Ms Aitken said meant “is it wet meth or is it rocky meth ...”, “wet or dry”. In reference to that text, Ms Aitken further explained, “like has he got wet meth or has he got dry meth" because people
preferred one to the other. Having got Ms Aitken to read part of her recorded statement to herself, the following exchange took place:
Q. Okay so looking at that does that assist when you were talking about coffee in your message what were you talking about?
A.Um, well coffee there I've said but coffee is everything like I said it's not – I may have said it there but it is, like I said coffee refers to sex, MDMA, meth, anything because it's easy.
Q.Just gonna get you to put that transcript to one side and going to get you to look at that second photograph – second text message booklet again, so the second one the one that we were looking at before lunch.
A. What number is it?
Q. Exhibit 2 and then text message 8 on the first page.
A. Mmm.
Q.So you’ve accepted that you sent that message “Hey is the road wet or bumping out there at mo.”
A. Mhm.
Q. Can you remind well can you tell me what are you referring to there?
A. Generally just the weather, is it wet or bumpy out there.
Q. Why were you talking about the weather?
A.Because it's – he’s was considered a mate, I talk about anything with him.
Q. Could you not tell what the weather was like where you were?
A.No it was usually dark when we meet 'cos it's usually the middle of the night.
[25] I consider it plain that Ms Aitken’s purpose in answering these questions the way she did was to frustrate the Crown’s case. In particular, to undermine the central tenant of its case that Mr Edmond supplied methamphetamine. When parrying questions about the content of texts and their meaning, and then claiming to no longer having any memory of them, the witness’s strategy changed from providing answers that contradicted her earlier statement to one of seeking to cast doubt on the reliability of what she had earlier told police.
[26] Ms Aitken disavowed any recollection of certain text messages but, anticipating her earlier statement to the police being referred to her, she claimed to have consumed half a gram of methamphetamine before being interviewed. When questioned further about the relatively short period of time between that interview and the text messages, Ms Aitken introduced a further explanation for her earlier inconsistent statements as wanting to get home to her children that night so she had told police “what they wanted to hear”.
[27] It is apparent from Ms Aitken’s approach, whereby she adopted various defensive positions in an effort to avoid incriminating Mr Edmond, even to the extent of volunteering explanations as to why her earlier statements to police were unreliable, that she was intent on being unhelpful to the Crown case. At the very least, she appeared to be exhibiting such an intention. I consider this to be plain from the record but the trial Judge also had the advantage of observing Ms Aitken’s demeanour in the witness box and the tone of her answers while giving evidence. Some deference must be allowed for that aspect of the Judge’s assessment.
[28] Mr Jackson contended that Ms Aitken’s police statement was unreliable. He pointed to her explanations that she was under the influence of drugs at the time, was under pressure to get back to her family, and could not be expected to have any independent recollection of the content of so many text messages. However, while a qualitative assessment of the prior statement may inform the reasonableness of a witness’s explanation for their inconsistent evidence, issues regarding the reliability of their earlier statement do not immunise a witness from being declared hostile. Here the witness’s varying claims, rather than explaining her inconsistent evidence, tended to demonstrate Ms Aitken’s intention to be unhelpful to the party calling her.
[29] Whether the prior statement will ultimately be accepted as reliable and is to be preferred by the fact finder in the face of the witness’s trial evidence is a different issue to be assessed at the conclusion of the trial. In the present case, the Judge found Ms Aitken “denials and deflections” did not ring true and concluded her evidence was self-serving and unreliable. The Judge preferred what he described was Ms Aitken’s “frank acknowledgement” in her interview that “coffee” was a reference to methamphetamine and her “candid explanation” to police.
[30] The fact the prior statement was not sworn or affirmed does not ameliorate the inconsistency of the witness’s evidence or render the inference to be drawn about the witness’s apparent intention to be unhelpful any less available. The formal video statement taken by police, which commences with Ms Aitken being provided with her rights, has no lesser status for the purpose of assessing whether the witness is hostile.11
[31] When cross-examined by Mr Edmond’s counsel, an affidavit sworn by Ms Aitken, in which she acknowledged her relationship with Mr Edmond but disputed he had supplied her with methamphetamine, was referred to her. This affidavit had been provided to Mr Edmond’s counsel. There was some controversy regarding whether the affidavit had been provided to the Crown at an earlier stage in the proceedings. It was not raised with the Judge at the time he made his hostility ruling but I am satisfied it would have made no difference to the Judge’s assessment of either the inconsistency between Ms Aitken’s evidence and her inculpatory statement to police, nor his finding of the witness’s apparent intention to be unhelpful to the Crown. To the contrary, evidence of the preparation of the affidavit arguably would have confirmed the concerns Ms Aitken later expressed in re-examination about giving evidence and being labelled a nark, and therefore her motivation or need to be seen as being unhelpful to the prosecution case.
Decision
[32] For these reasons, I do not consider the trial Judge erred in his decision to declare Ms Aitken hostile and allow the Crown to cross-examine her. However, this ground would have failed in any event. To succeed on the appeal it is necessary to demonstrate that the error or irregularity relied upon has created a real risk of having affected the outcome of the trial.12
[33] An erroneous declaration of Ms Aitken as a hostile witness would not have resulted in any miscarriage of justice. Ms Aitken was called as a witness. Her
11 Evidence Act, s 4 provides:
statement means—
(a) a spoken or written assertion by a person of any matter; or
(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter
12 Criminal Procedure Act 2011, s 232(2) and (4).
statement to police was admissible under the Evidence Act 2006 because it was not hearsay since she gave evidence.13 The account provided by Ms Aitken to the police about Mr Edmond’s methamphetamine dealing was not consistent with her oral evidence, thus the admissibility of her police statement did not fall to be determined under s 35 (which applies to prior consistent statements). Her statement was plainly relevant for the purposes of s 7 and since its probative effect was not outweighed by unfair prejudice, it was therefore admissible whether Ms Aitken was declared hostile or not.14
[34] It follows that, regardless of whether Ms Aitken had been declared hostile, this evidence could still have been produced by the Crown and would have been available to the trial Judge to assess, together with Ms Aitken’s oral evidence.
The expert evidence ruling
[35] Mr Jackson submitted the Judge erred in admitting parts of Detective Sergeant Simpson’s evidence where, it was argued, he opined on the ultimate issue. No issue was taken as to the officer’s expertise. However, it was submitted the detective sergeant had exceeded the permissible limits of the legitimate opinion he could provide and that, in so doing, he had exhibited a level of partiality which should have resulted in his evidence being ruled in admissible.
[36] In a statement Detective Sergeant Simpson read into evidence, he initially provided generic information about methamphetamine and terminology associated with dealing in that and other drugs before turning to address the interpretation of a number of the texts relied upon by the Crown. Much of the officer’s opinion evidence about the meaning of these texts was based upon terms used in the messages that are commonly associated with methamphetamine or other drugs. He also gave his opinion regarding the use of the term “coffee”:
84. I also believe that the reference to “coffee” in the text message AITKEN sent to EDMOND at 11.44 pm on 15 May 2021 is a reference to an illicit controlled drug, most likely methamphetamine. I base this opinion on the proximity to the subsequent messages
13 The definition of “hearsay statement” in s 4 of the Criminal Procedure Act does not encompass a statement made by a witness.
14 Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612 at [79].
between AITKEN and her customers and AITKEN and EDMOND, and that I have seen ‘coffee’ be used as a refer to methamphetamine previously.
Later in the Detective Sergeant’s evidence, when referencing other texts that include the word “coffee”, he opined:
110.I believe that this highly indicative of EDMOND having supplied AITKEN with methamphetamine.
111.I base my opinion on the fact that I believe it is methamphetamine as opposed to another controlled drug, due to the previous reference to “coffee” on 15 May 2021 by AITKEN to EDMOND.
112.I believe that they are not referencing actual coffee, such as coffee beans. In my opinion “coffee” is being used as a code word in an attempt to avoid law enforcement agency apprehension and/or prosecution.
And later in his evidence:
117. I have also seen ‘coffee’ references as a code word for methamphetamine in other drug cases. At the time of drafting this statement, on 4 March 2023, one of my staff members is coding messages for an unrelated methamphetamine investigation where “coffee” is also referenced as a suspected code word for methamphetamine.
[37] In relation to a number of the texts, the Detective Sergeant, after setting out the content of the messages, expressed the following type of opinions:
101. Again, I suspect that a controlled drug has been supplied by EDMOND to UNKNOWN. In my opinion, it is extremely likely to be methamphetamine. However, I cannot rule out another controlled drug such as MDMA having been supplied.
...
110.I believe that this is highly indicative of EDMOND having supplied AITKEN with methamphetamine.
111.I base my opinion on the fact that I believe it is methamphetamine as opposed to another controlled drug, due to the previous reference to “coffee” on 15 May 2021 by AITKEN to EDMOND.
[38] Mr Jackson argued that the witness, both in respect of giving his opinion about texts that referred to the term “coffee” and about other messages, where he offered his opinion as to the meaning of the texts, intruded on the Court’s function and went
beyond providing expert assistance. In particular, Mr Jackson submitted that an overall conclusion articulated by the Detective Sergeant exceeded the permissible limits of legitimate expert opinion and essentially addressed the ultimate issue the Judge had to decide when he stated:
124. I believe that he is a low to mid-level dealer of methamphetamine
and possibly other controlled drugs such as MDMA.
125.I base my opinion on reviewing all the evidence in totality, even in the absence of actual controlled drug product seizure.
[39] In summary, Mr Jackson submitted the witness had offered an opinion on the ultimate issue on a number of occasions in his evidence which he argued was impermissible and went beyond the legitimate scope of expert evidence. While it was acknowledged that opinion evidence will not be inadmissible simply because an expert is associated with one of the parties, it was argued that, because the detective sergeant had expressed a series of opinions on issues that were the preserve of the Court, he had not demonstrated the necessary level of professional impartiality and this had affected the admissibility of his evidence.15
Analysis
[40]Section 25 of the Evidence Act provides:
25 Admissibility of expert opinion evidence
(1)An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
(2)An opinion by an expert is not inadmissible simply because it is about—
(a)an ultimate issue to be determined in a proceeding; or
(b)a matter of common knowledge.
...
15 Citing Lisiate v R [2013] NZCA 129, (2013) 26 CRNZ 292 at [55].
[41] The admissibility of expert opinion is therefore governed by whether the Court is likely to obtain substantial help from that evidence. The expert opinion is not disqualified simply because it is about the ultimate issue which the Court must address. The application of the admissibility rule in the context of an experienced police officer giving evidence about the meaning of intercepted communications in drugs prosecutions was addressed by Simon France J in R v Holtham:16
[83] The principles attaching to the admissibility of such evidence are not difficult to set out. Based on his expertise, the officer can give evidence about the practices of those engaged in drug activities, about the common use of code-words, and about what form such words take – e.g. food, fruit etc. He can give evidence about words used in the present messages that are similar to, or the same as, code words he has encountered in other investigations. Finally, in my view, he can say that based on his experience the use in this case of the fish theme is typical of the type of code system that is employed.
...
[85] The second of my propositions that requires comment is that the officer may give his opinion that the fish theme is a code for methamphetamine. That is, in a sense, a comment related to the ultimate issue, but there is no bar on that (see s25(2)(a) of the Act). These cases involve potentially hundreds of messages and conversations. It is in my view substantially helpful (the test in s25(1) of the Act) for a suitably qualified person to bring together the Crown case in relation to them. It is arguable that some of these opinions are more for submission than evidence, but it is a fine line and one should not lose sight of the ultimate goal which is to assist the jury with bringing together and evaluating all this material. There is also thereby provided suitable opportunity for cross-examination, and for weaknesses to be brought into the open.
[86] It is also in my view permissible for the officer to highlight words that are said to be examples of the general practice being alleged. What is not needed, or permissible, is for the officer to troll through every message giving his view on what it means. The general thesis, plus examples, will suffice to advance the case, whilst avoiding speculation or undue intrusion into the jury’s function. Balance is important if one is to avoid the dangers of opinion evidence overwhelming the jury.
[42] After setting out this extract from Holtham, the trial Judge in this case held himself to be satisfied the Detective Sergeant had not “trawled” through every message and provided an opinion on each. The Judge was satisfied with the way the witness had set out his analysis in support of his opinions, and at times their limitations, and that the detective sergeant had not overstepped the legitimate extent of such evidence or breached any requirement of impartiality. While it was
16 R v Holtham [2008] 2 NZLR 758, (2007) 23 CRNZ 937 (HC).
acknowledged that some of the opinions expressed went to the ultimate issue, the test was whether the opinion evidence was substantially helpful to him as the finder of fact finder. He concluded that the Detective Sergeant’s evidence did not go beyond permitted bounds. With the exception of one opinion expressed by the Detective Sergeant, I substantially agree with the Judge’s analysis.
[43] I do not consider any objection can be taken to the officer’s evidence regarding the interpretation of the term “coffee” which was based not only on the circumstances of this particular case but the officer’s wider knowledge of the use of such codes and, indeed, institutional knowledge that the same term has been used in respect of unrelated methamphetamine offending. The expert witness’s review of a number of other text messages drew upon common slang drug references and was based on a number of messages read in the context of other texts. Aside from the Detective Sergeant’s expressed view regarding the meaning of “coffee”, he provides some six opinions regarding various sets of texts that are of incriminating effect. I do not consider this is a case of an expert police officer trolling through every message and providing an opinion in relation to each.
[44] Detective Sergeant Simpson’s evidence conforms with the permissible practice of providing examples of Mr Edmond’s alleged drug-dealing activities. It follows that I do not consider the content of his opinion about various texts went beyond what was legitimately necessary to assist the Court, or fell outside the bounds of what was appropriate for the purpose of his evaluation of various examples, which included appropriate concessions as to what could be drawn from the content of the messaging. I do not consider the witness demonstrated any loss of professional impartiality. While he was a police officer who could be viewed as being aligned with the prosecution case, he approached his task and provided his expert opinion in an objective manner based on his specialist knowledge and experience.
[45] However, there is one aspect of the Detective Sergeant’s evidence which I consider ought not to have been tendered as an opinion. Under the heading “Summary” the Detective Sergeant expressed his belief that Mr Edmond “is a low to mid-level dealer of methamphetamine and possibly other controlled drugs such as MDMA”. I do not consider the officer should have ventured that view. It is not an
unreasonable conclusion to draw from the officer’s review of the sample of text messages the subject of his evidence, but it intrudes into the Judge’s function as the fact finder in this case.
[46] The fact an expert opinion is offered about an ultimate issue to be determined in the proceeding will not render that evidence inadmissible.17 However, I accept that ought not be interpreted as authorising conclusionary statements by witnesses that are not required to be made for the purpose of providing their expert opinion about matters the fact finder is likely to obtain substantial help from. In this case, the expression of such an opinion was a matter for submission and can be distinguished from the legitimate interpretive assistance provided in respect of the text messaging.
[47] It is notable that the Judge, when analysing the texts and, in particular, the use of the term “coffee”, which in large part was the central issue in this case, acknowledged the assistance he obtained from Detective Sergeant Simpson’s evidence about the texts and Ms Aitken’s statements to police that he accepted in preference to her oral evidence. At no stage did the Judge refer to the Detective Sergeant’s conclusionary finding that Mr Edmond was a methamphetamine dealer or seek to rely on that aspect of his evidence.
[48] Notwithstanding the error in admitting this part of Detective Sergeant Simpson’s evidence, I do not consider any miscarriage of justice has resulted. The Judge’s reasoned decision focussed on the texts, the Detective Sergeant’s analysis of their content and Ms Aitken’s admissions to police. There was an inevitability to the Judge’s conclusion that Mr Edmond was dealing in methamphetamine once it was accepted the partly coded texts involved the supply of methamphetamine and his rejection of Ms Aitken’s disavowment of Mr Edmond’s involvement in that activity in preference to her frank acknowledgement to police that this was indeed the case.
[49] There is no basis to conclude the Judge’s analysis of this evidence was tainted by the superfluous belief expressed by the Detective Sergeant that Mr Edmond was a low to mid-level dealer of methamphetamine, albeit one that may have logically followed from his opinion regarding the content of the texts. I am satisfied this error
17 Evidence Act, s 25(2)(a).
or irregularity had no material bearing on the Judge’s decision and did not give rise to any real risk of affecting the outcome of the trial. Being satisfied that no miscarriage of justice arises from the admission of the expert opinion evidence, this ground of the appeal is dismissed.
Failing to carry out search obligations
[50] The challenge to the Judge’s finding that the charge of failing to carry out search obligations had been proved focuses on a very discrete piece of evidence. The attending officer, Detective Genet, observed that Mr Edmond reacted to his request to unlock the seized phone with “a confused look”. Mr Edmond claimed he did not have a phone that required “swipe” access as he only had a phone that required a PIN code. Mr Jackson argued the Judge failed to weigh this evidence about Mr Edmond’s confusion and provide reasons for his verdict.
[51] In his decision, the Judge reviewed the evidence relating to a black Samsung phone found at Mr Edmond’s address and the request made by police to be provided access to the device. No issue is taken with the Judge’s finding that Mr Edmond had control of the phone as it was readily accessible to him and in operation at the time it was located, nor that a request was made for access in furtherance of the search power being exercised at the time. The Judge acknowledged the only issue was one of whether there was a reasonable excuse for Mr Edmond’s failure to provide access. It was noted the only evidence was that he was surprised and confused about what was required. The Judge was not satisfied that amounted to a reasonable excuse in the circumstances. Mr Edmond did not give evidence.
[52] I do not consider the Judge’s analysis of the available evidence, such as it was, was erroneous or suffers from a failure to provide reasons. Reacting with apparent surprise and confusion to a request for access provides no basis upon which to conclude Mr Edmond had a reasonable excuse for not complying with the request. No explanation was proffered, either at the time or at trial. There was no requirement for the Judge to consider the matter any further in the absence of any other relevant evidence upon which to suggest Mr Edmond had a reasonable excuse. The Judge therefore did not err in his assessment of the evidence in finding this charge proved.
Conclusion
[53] Having concluded that none of the three grounds raised by Mr Edmond have given rise to a miscarriage of justice, his appeal against his convictions must be dismissed.
Result
[54]The appeal against conviction is dismissed.
Solicitors:
Crown Solicitor, Christchurch
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