Naufahu v The the Queen - [2022] NZSC 22

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 144/2021
[2022] NZSC 22

BETWEEN	PASILIKA NAUFAHU Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Williams JJ
Counsel:	R M Mansfield QC for Applicant M L Wong and S K Barr for Respondent
Judgment:	17 March 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal a decision of the Court of Appeal dismissing his conviction appeal.[1] The Court applied s 22A of the Evidence Act 2006 and admitted hearsay evidence of his participation in a conspiracy to supply pseudoephedrine. The applicant’s challenge is to this finding.

The facts

[1]Naufahu v R [2021] NZCA 508 (Collins, Duffy and Peters JJ) [CA judgment].

Intercepts between Samuel Vaisevuraki and a Mr Sha demonstrated they planned to supply pseudoephedrine valued at one million dollars to an unnamed third party. Mr Naufahu was alleged to be that party. He was the President of the Comancheros Motorcycle Club (the Comancheros) at that time. Samuel’s brother Donald also participated in a broader (Comancheros) criminal enterprise which included money laundering via the trust account of lawyer Andrew Simpson. Interestingly, Donald, Samuel and Mr Sha were not tried for their role in the alleged conspiracy. Charges were laid but were later withdrawn. They were, however, convicted on other drug charges.
Donald gave evidence at Mr Naufahu’s trial for the conspiracy charge. His evidence was that in August 2018 he had approached Mr Naufahu on behalf of his brother Samuel to ascertain whether Mr Naufahu would be prepared to assist their distribution enterprise. He said Mr Naufahu agreed and would pay one hundred and twenty dollars a gram. The nature of the drugs appears not to have been identified.
In September 2018, the month during which events occurred giving rise to the conspiracy charge, Donald was in Fiji. Samuel arrived in Auckland from Sydney on 18 September 2018 and met with Mr Naufahu the next morning, first at a café and then at a park in Bucklands Beach. They were observed by Police to be in discussion with one another and at the same time speaking on their respective cell phones. It is believed that both phones were protected by encryption devices. Later that evening Samuel met with Mr Sha and they drove around in Samuel’s car for two and a half hours. The next day they repeated the same process for three hours and twenty minutes. Overnight an interception device had been installed in Samuel’s car so that discussions between Samuel and Mr Sha could be monitored. The pair were heard to discuss a deal involving pseudoephedrine valued at one million dollars. Samuel referred to his “partner” and “the biggest gang in New Zealand”.[2] It was understood that the transaction would be completed the next day (20 September).
[2]CA judgment, above n 1, at [24].
For reasons that are unclear, the transaction was not completed on 20 September. Mr Naufahu and…

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: [2022] NZSC 22
Decision Date: 17 March 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal a decision of the Court of Appeal which dismissed the applicant's appeal against his conviction. The applicant, Pasilika Naufahu, sought to challenge the admissibility of hearsay evidence admitted under s 22A of the Evidence Act 2006, which related to his alleged participation in a conspiracy to supply pseudoephedrine. The key legal issues before the Court were whether the standard for determining participation in the conspiracy under s 22A(b) is the balance of probabilities or a lower threshold, whether the reliability test in s 18 of the Evidence Act should apply to the hearsay statement itself where the co-conspirator is not a co-accused or a witness, and whether the hearsay statements should have been excluded under s 8 of the Evidence Act due to unfairness.

The Court found that the theoretical difference between the two standards for determining participation in the conspiracy under s 22A(b) did not affect the outcome in this case, as there was enough evidence to suggest that Naufahu was "probably" involved in the pseudoephedrine deal that others were pursuing at the same time. The Court also held that s 18 does not apply to co-conspirator statements that satisfy the conditions of s 22A, as they inherently contain assurances of reliability. Finally, the Court found that Naufahu's inability to respond to the hearsay evidence due to Samuel's absence from the trial did not warrant exclusion under s 8 as there was no unfairness.

The application for leave to appeal was dismissed. The Court held that Naufahu's arguments did not have sufficient prospects of success to warrant the granting of leave. The Court also found that there was insufficient merit in Naufahu's arguments to warrant the granting of leave.

Orders