Henderson v The Queen - [2016] NZCA 428

IN THE COURT OF APPEAL OF NEW ZEALAND

CA364/2016
[2016] NZCA 428

BETWEEN	JOHN PERRY MORGAN HENDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	10 August 2016
Court:	Winkelmann, Williams and Collins JJ
Counsel:	J M Miller and H G de Groot for Appellant M A Corlett QC for Respondent
Judgment:	10 August 2016 at 4 pm
Reasons:	9 September 2016

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Mr Henderson sought leave to appeal a pre-trial ruling made by Judge Barry in the Wellington District Court on 18 July 2016. In his ruling Judge Barry granted the Crown’s application to join two sets of charges against Mr Henderson.[1] As the trial commenced on 15 August 2016, we gave a results judgment on 10 August 2016 in which we granted Mr Henderson’s application for leave to appeal but dismissed his appeal.[2]
[1]R v Henderson [2016] NZDC 13761.
[2]Henderson v R [2016] NZCA 394.
This judgment explains the reasons for our decision. In summary, we agree with Judge Barry’s conclusion that the two sets of charges should be heard together because evidence relating to the second set of charges is relevant propensity evidence in relation to the first set of charges.[3]

Background

First set of charges

[3]R v Henderson, above n 1, at [47].

The first set of charges arises from incidents in May and October 2015. At about 6.00 am on 29 May 2015, the police executed a search warrant at 27 Astrolabe Street in Porirua. The Crown says Mr Henderson was using the living room of that house as his bedroom. The police witnesses say that as they approached the property a person who fitted Mr Henderson’s general description was seen to be smoking cannabis in the backyard. The person then ran towards the back of the property and leapt over the rear fence. The absconder left his shoe in a compost heap in the neighbouring property. The absconder also dropped three bags, each containing approximately 28 grams of methamphetamine, and six bundles of cash. The police seized from the living room of 27 Astrolabe Street methamphetamine, digital scales, glass pipes, cannabis plant material, a quantity of diazepam, a grinder, empty “point bags”, three cellphones and $312,000 in cash. In total 136 grams of methamphetamine was recovered during the execution of the search warrant. Mr Henderson faces three charges of possessing Class A, B and C controlled drugs for the purpose of supply in relation to the events of 29 May 2015.[4]
[4]Misuse of Drugs Act 1975, s 6(1)(f).
Two further charges in the first set of charges arise from events several months later on 8 October 2015 in which the police pursued Mr Henderson and his son, John Henderson Jr, in a vehicle driven from 27 Astrolabe Street. Mr Henderson was apprehended and found to have 1.28 grams of methamphetamine and $2,550 in cash in his possession.…

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: [2016] NZCA 428
Decision Date: 10 August 2016 at 4 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Henderson v The Queen saw the appellant, John Perry Morgan Henderson, challenging a pre-trial ruling by Judge Barry from the Wellington District Court that allowed two sets of charges against him to be joined. The first set of charges related to drug possession and supply, as well as resisting police, stemming from incidents in May and October 2015. The second set of charges arose from a search warrant executed in March 2016, resulting in similar drug-related charges. The central legal issue was whether the evidence from the second set of charges, concerning Henderson's drug dealing, should be admitted as propensity evidence in relation to the first set of charges. The Court of Appeal examined whether this evidence had probative value regarding the disputed issue of Henderson's involvement in the first set of charges and if its probative value outweighed any prejudicial effect.

The Court of Appeal concluded that the evidence from the second set of charges did indeed have strong probative value, demonstrating Henderson's propensity to deal in methamphetamine. The similarities between the two sets of charges, despite differences in quantities, and the connection in time between the events, supported this conclusion. Additionally, the Court found that the risk of unfair prejudice was manageable through proper jury instructions. As a result, the Court upheld Judge Barry's ruling to join the charges, dismissing Henderson's appeal while granting leave to appeal.

Orders