Haunui v The Queen - [2019] NZCA 679

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA49/2019
[2019] NZCA 679

BETWEEN	DENNIS HAUNUI Appellant
AND	THE QUEEN Respondent

Hearing:	26 September 2019
Court:	Clifford, Ellis and Peters JJ
Counsel:	A J Bailey for Appellant D G Johnstone and S A Rankin for Respondent
Judgment:	19 December 2019 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Peters J)

The appellant, Mr Haunui, appeals against his conviction on several charges following a jury trial in January 2019 before Judge Kellar in the District Court at Christchurch.
The issues on appeal are whether the Judge erred in holding that text messages which Mr Haunui sought to adduce were inadmissible and, if so, whether that error created a real risk the outcome of the trial was affected, so that a miscarriage of justice has occurred.[1]

Background

[1]Criminal Procedure Act 2011, s 232(2)(c).

Mr Haunui was convicted of possession of a class A drug (methamphetamine) for the purpose of supply; possession of an offensive weapon (knuckle dusters); and possession of a class C drug (cannabis). He was acquitted on a charge of possession of a utensil for the purpose of the commission of an offence, namely a pipe used to smoke methamphetamine.
On 8 February 2019 the Judge sentenced Mr Haunui to eight months’ imprisonment, cumulative on an existing sentence of imprisonment.[2] Although the Judge did not identify the sentence imposed on each offence, it is apparent from Mr Haunui’s criminal history that the Judge attributed eight months to the methamphetamine offending, and one month (concurrent) to each of the other charges.
[2]R v Haunui [2019] NZDC 2095.
The principal focus at trial, and on appeal, is the conviction for possession of methamphetamine for the purpose of supply. The appeal against the other convictions stands or falls with that charge. We record also that the issue at trial was the element of “possession”. Mr Haunui did not dispute he had been offering to supply methamphetamine “for the September period”, and so might have been guilty of that offence had he been so charged.
The charges arose in this way.
At approximately 12.30 am on 4 September 2016, Constables Kingi and Sollitt stopped the vehicle Mr Haunui was driving and in which Ms Jacquelene Edmonds, Mr Haunui’s then partner, was the front seat passenger. The vehicle belonged to a friend of Ms Edmonds. The police IT system showed the vehicle’s registration had expired. When speaking to Mr Haunui, Constable Kingi observed the knuckle dusters in the vehicle, adjacent to the hand brake. Constable Kingi detained Mr Haunui, indicating he was invoking the police’s search and seizure power. The search of the vehicle located:
(a)A black leather bag, in the driver’s footwell, partially under the driver’s seat. The bag contained a makeup bag holding $1,750 in cash, a bottle containing two point bags, holding a combined weight of 0.94 grams of methamphetamine, and another point bag holding…

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.

Continue reading Haunui v The Queen

Details

AGLC: Haunui v The Queen [2019] NZCA 679
Case: [2019] NZCA 679
Decision Date: 19 December 2019 at 3 pm

CaseChat Overview and Summary

Dennis Haunui appeals against his conviction on several charges, including possession of a class A drug (methamphetamine) for the purpose of supply, possession of an offensive weapon (knuckle dusters), and possession of a class C drug (cannabis). The appeal focuses on the trial judge's decision to exclude certain text messages as inadmissible hearsay. The court was required to determine whether the trial judge erred in excluding these text messages and, if so, whether this error created a real risk of a miscarriage of justice.

The court found that some of the text messages exchanged between the appellant and third parties were not hearsay statements and thus were not inadmissible. However, the text messages sent to the appellant's partner, Ms Edmonds, contained assertions and were offered to prove the truth of their contents. Therefore, these messages were hearsay statements and could only be admitted if Ms Edmonds was unavailable as a witness. The court held that Ms Edmonds was not unavailable as a witness because she could be compelled to testify, and there was no certainty she would invoke her privilege against self-incrimination if called to do so.

The court concluded that even if the trial judge's exclusion of the text messages was in error, it did not create a real risk of a miscarriage of justice. The evidence against the appellant was strong, and the excluded text messages would not have significantly altered the outcome of the trial. Therefore, the appeal against conviction was dismissed.

No further orders.

Orders