Paewhenua v The Queen - [2018] NZCA 86

IN THE COURT OF APPEAL OF NEW ZEALAND

CA328/2017
[2018] NZCA 86

BETWEEN	CHEYENNE RAHIRI PAEWHENUA Appellant
AND	THE QUEEN Respondent

Hearing:	26 and 28 February 2018
Court:	Brown, Brewer and Collins JJ
Counsel:	J K W Blathwayt for Appellant P D Marshall for Respondent
Judgment:	10 April 2018 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Brown J)

While executing a search warrant at the appellant’s mother’s home in Masterton, the police found a backpack containing a locked safe. Inside the safe was a plastic container holding 14.6 grams of methamphetamine, $3,000 in cash, digital scales and empty zip-lock bags.
The appellant was charged with possession of the methamphetamine for the purpose of supply. The Crown case rested on circumstantial evidence, including the appellant’s links to the property, admissions which he made when interviewed by the police, the discovery of his fingerprints on insulation tape wrapped around the plastic container and the content of recorded telephone calls between the appellant’s father, Wayne Rimene, and a male whom it was accepted was the owner of the drugs.
Following a trial by jury in the District Court at Wellington, the appellant was found guilty of one charge of possession of a Class A controlled drug, namely methamphetamine, for the purpose of supply. He was convicted by Judge Harrop and sentenced to three years and five months’ imprisonment.[1]
[1]R v Cheyenne Rahiri Paewhenua [2017] NZDC 11296.
The notice of appeal against conviction specified four grounds:
(a)The verdict was unreasonable and not supported by the evidence.
(b)The Judge failed to give an adequate warning to the jury in relation to voice identification.
(c)The recorded telephone calls ought not to have been admitted.
(d)In all the circumstances the appellant did not receive a fair trial.
The focus of the appeal was on the recorded telephone conversations which the Crown claimed were between the appellant and his father in prison. As Mr Blathwayt’s submissions noted:
The critical issue is whether in terms of the conversation the person speaking to Wayne Rimene on four of those calls was the appellant. If it was then clearly the dealer’s kit belonged to the appellant and he was guilty of the charge he faced.
Mr Blathwayt did not press the second ground of appeal relating to the alleged failure of the trial judge to provide a warning pursuant to s 126 of the Evidence Act 2006. That was entirely understandable. The Crown did not call voice identification evidence and the need for such a warning did not arise.[2]
[2]Evidence Act 2006, s 46 and the definition of “voice identification evidence” in s 4(1).
With reference to the third ground the appellant had unsuccessfully challenged the telephone call evidence prior to trial[3] on the grounds that, in the absence of evidence proving the appellant was the recipient of the calls, the evidence was hearsay. On appeal the challenge to admissibility was renewed, the contention being that, as the Crown…

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 Paewhenua v The Queen

Details

AGLC: Paewhenua v The Queen [2018] NZCA 86
Case: [2018] NZCA 86
Decision Date: 10 April 2018 at 4.00 pm

CaseChat Overview and Summary

Cheyenne Rahiri Paewhenua appealed against his conviction and sentence for possession of a Class A controlled drug, namely methamphetamine, for the purpose of supply. The appeal centred on the admissibility of recorded telephone conversations between the appellant and his father, Wayne Rimene, in prison. The Crown claimed that the conversations proved the appellant's involvement in the drug supply. The appellant argued that there was a third son of Wayne Rimene and Janine Paewhenua who could have been the other party on the calls.

The court had to decide whether the evidence was sufficient to support the jury's verdict that the appellant was guilty. The key issue was whether the person speaking to Wayne Rimene on the calls was indeed the appellant. The court also considered whether the recorded telephone calls were admissible and whether the appellant received a fair trial. The appellant contended that there was insufficient evidence to conclude that he was the other participant on the calls, as there was no evidence proving that Tawhiti, the third son, was not the other participant.

The court found that the probative value of the telephone-call evidence flowed from their content and surrounding circumstances, not the sound of the person's voice. The court agreed with the Crown that it was not necessary for the Crown to lead expert evidence identifying the voice as belonging to the appellant. The court held that there was ample evidence pointing to the appellant's guilt. The court rejected the submission that there was insufficient evidence to permit the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charge.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders