Gilfedder and Heemi v The Queen - [2013] NZSC 145

IN THE SUPREME COURT OF NEW ZEALAND

SC 107/2013
[2013] NZSC 145

BETWEEN	JOAN MARY GILFEDDER Applicant
AND	THE QUEEN Respondent

SC 109/2013
BETWEEN	NGAWATI HEEMI Applicant
AND	THE QUEEN Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	P L Borich for the Applicant Gilfedder M Wilkinson-Smith for the Applicant Heemi M J Inwood for the Respondent
Judgment:	13 December 2013

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS

Background

Ms Gilfedder and Mr Heemi seek leave to appeal against a decision of the Court of Appeal[1] dismissing their appeals against conviction.
[1]Gilfedder v R [2013] NZCA 426.
Ms Gilfedder and Mr Heemi were three of seven accused who were convicted after a jury trial before Woolford J in the High Court at Auckland. The indictment contained some 85 counts relating to the manufacture and distribution of methamphetamine. Guilty verdicts were returned on all but one count which did not involve either of the applicants.
The Crown case was that the most significant of the offenders, a Mr Van de Ven, arranged for acquisition of pre-cursor materials and supervised the manufacture of the methamphetamine with the participation of three others, on various of the occasions on which methamphetamine was manufactured. Mr Van de Ven then supplied the methamphetamine to four re-sellers of methamphetamine, each of whom was alleged to have a pattern of supplying methamphetamine to their own customers.
Mr Van de Ven’s activities occurred at a residential property in Jupiter Street, Papakura and at another property at Hunua. The Crown case was that the re-sellers were supplied with methamphetamine at Jupiter Street.
Mr Heemi was one of those charged with participation in the manufacturing processes. It was alleged that this participation occurred on three occasions, two where he was present physically and one where he provided advice. He was convicted on all three counts. Ms Gilfedder was alleged to be one of the re-sellers. She was convicted on 12 counts of possession of methamphetamine for supply.

Propensity direction

At trial, physical evidence was adduced, including pre-cursor materials, chemicals, equipment and cash found at the two properties involved. In Mr Heemi’s case, the Crown also contended that he was linked to the equipment used in the manufacture of methamphetamine by a fingerprint that was identified on a steam distiller at the Hunua property. The main evidence the Crown relied on, however, was the record of intercepted text and call data between the various accused, together with a log of the frequent visitors to the Jupiter Street property.
The evidence in relation to both Ms Gilfedder and Mr Heemi included calls, texts or visits on occasions other than those on the particular days on which the Crown alleged their offending occurred. Both Ms Gilfedder and Mr Heemi submit this evidence was propensity evidence and that a direction should have been given on the proper use of that evidence.
The general issue of when a propensity direction should be given and the contents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZSC 145
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Joan Mary Gilfedder and Ngawati Heemi sought leave to appeal against their convictions, which were dismissed by the Court of Appeal. The applicants were part of a larger group involved in the manufacture and distribution of methamphetamine, with Gilfedder convicted of possession for supply and Heemi of participation in the manufacturing process. The main issues before the Supreme Court were whether there should have been additional directions to the jury regarding the use of propensity evidence and whether there were discrepancies between the trial judge's oral directions and the jury's question trail. The Supreme Court found that the Court of Appeal had adequately considered the evidence and directions given, and no substantial miscarriage of justice was evident. The Court also noted that any potential error in the trial judge's directions did not impact the verdicts given the circumstances of the case.

The Supreme Court further examined the applicants' arguments regarding the trial judge's directions on the identity of the supplier and the need for specific instructions on the timing of methamphetamine possession. The Court of Appeal had already determined that the judge's oral directions were legally correct and that the applicants' rights to a fair trial were not compromised. The Supreme Court agreed with these findings, noting that the directions did not raise issues of general or public importance and that the Court of Appeal's analysis was sound. Therefore, the Supreme Court dismissed the applications for leave to appeal.

In summary, the Supreme Court upheld the Court of Appeal's decision to dismiss the appeals of Joan Mary Gilfedder and Ngawati Heemi. The Court found no basis for the applicants to challenge the verdicts based on the directions given to the jury or the judge's oral instructions. Consequently, the Supreme Court dismissed the applications for leave to appeal.

Orders