Paewhenua v The Queen
[2018] NZCA 86
•10 April 2018 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA328/2017 [2018] NZCA 86 |
| BETWEEN | CHEYENNE RAHIRI PAEWHENUA |
| AND | THE QUEEN |
| Hearing: | 26 and 28 February 2018 |
Court: | Brown, Brewer and Collins JJ |
Counsel: | J K W Blathwayt for Appellant |
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 did not obtain expert evidence identifying the voice as belonging to the appellant, it was not entitled to play those calls at all.
[3]R v Cheyenne Rahiri Paewhenua [2017] NZDC 4796.
We agree with the Crown that this submission is misconceived. It was not necessary for the Crown to lead such evidence. The probative value of the telephone-call evidence did not depend on the sound of the person’s voice. Rather the Crown’s contention was that the probative value of the calls flowed from their content and their surrounding circumstances.
The nub of the appeal as presented concerned the first and fourth grounds. It turned on the appellant’s proposition that it could not fairly be concluded that the other participant on the calls was the appellant for the reason that Wayne Rimene had not two but three sons.
In summing-up, the Judge said that the reality of the case was that if the jury were sure that the appellant was called by Mr Rimene in each of the first four calls, then the jury would inevitably find the appellant guilty. The Judge then directed the jury that Mr Rimene only had two sons by Janine Paewhenua, namely the appellant and his brother Chevi. The participant in the telephone call was clearly not Chevi because he was discussed by the two participants in the calls. Hence the Crown’s contention that the appellant was the other participant on the calls.
In the course of cross-examination of a police witness, the following exchange occurred:
QDo you know how many children Wayne Rimene and Janine Paewhenua have?
AI do not.
QI’m going to put it to you that amongst other children who haven’t been mentioned there is a son, Tawhiti, Tawiti, aged about 22 or 23? Can you refute that?
AI cannot.
Mr Blathwayt challenged the accuracy of the statement in the summing-up that Mr Rimene had only two sons, maintaining that there was a third son named Tawhiti. He argued that it was not proven that Tawhiti was not the other telephone participant. Much of the hearing was focused on this issue, which resulted in an adjournment in order for the transcripts of discussions between the Judge and counsel in chambers, two documents recording information relating to the children of Wayne Rimene and the children of Janine Paewhenua, and transcripts of the Judge’s comments to the jury with reference to those two documents to be obtained.
At the resumption of the appeal on 28 February 2018, in support of his argument that Tawhiti could have been the other party on the telephone calls, Mr Blathwayt sought to pray in aid a s 9 admission of facts which contained a list of the children of Janine Paewhenua.[4] However that document did not advance the appellant’s case because, by contrast with the appellant and Chevi, it did not identify Tawhiti as a son of Wayne Rimene.
[4]Evidence Act 2006, s 9.
Further, on one of the calls Mr Rimene indicated that he could obtain a United Kingdom passport via the other participant’s grandmother. The other participant stated:
… but if you went and got yours, then I can get mine, can’t I?
We agree with the Crown’s submission that that exchange strongly suggested a close biological link between the two men.
There was no evidence concerning the whereabouts of Tawhiti at relevant times and in particular no evidence of his presence either at the Masterton address where the backpack was found or at the home of the appellant’s grandfather at the time the telephone calls were received there. In addition the only fingerprints which were identified on the container, albeit on insulation tape wrapped around it, were the appellant’s.
In our view there was ample evidence pointing to the appellant’s guilt. Applying the test in Owen v R, we reject 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.[5]
Result
[5]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
The appeal is dismissed.
Solicitors:
WCM Legal, Carterton for Appellant
Crown Law Office, Wellington for Respondent
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