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Pearce v R

Pearce v R

Case [2014] NZCA 388 14 August 2014

Jurisdiction

Admissibility of Evidence

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA519/2013
[2014] NZCA 388

BETWEEN	WARD HARRY PEARCE Appellant
AND	THE QUEEN Respondent

Hearing:	22 July 2014
Court:	Stevens, Lang and Clifford JJ
Counsel:	G C Gotlieb for Appellant P D Marshall for Respondent
Judgment:	14 August 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

During a search of an Auckland hotel apartment in April 2010, the police found methamphetamine, cannabis and pseudoephedrine in a safe. A Mr Nouri was found in one of the bedrooms and was arrested. Mr Pearce, the appellant, returned to the apartment later and was also arrested. Mr Nouri and Mr Pearce faced trial jointly on four charges: one representative charge of supplying methamphetamine, possession of methamphetamine found in the safe for the purpose of supply (259 grams), possession of cannabis in the safe for the purpose of sale, and possession of pseudoephedrine in the safe, with the intention it be used in the manufacture of methamphetamine.
Both accused pleaded not guilty to these charges.[1] Each gave evidence at trial and ran what are sometimes referred to as “cut-throat” defences, where each seeks to blame the other. The jury found both accused guilty on all charges. Mr Pearce was sentenced to eight years’ imprisonment.[2] Mr Nouri had already been convicted of charges in respect of methamphetamine offending in June 2011 for which he was serving a sentence of six years. On the basis of totality, he was sentenced to a further cumulative term of four years.
[1]Mr Nouri pleaded guilty to other charges relating only to him.
[2]R v Nouri DC Auckland CRI-2010-004-6851, 9 July 2013.
Mr Pearce appeals against conviction and sentence. He advances two separate grounds against conviction. The first relates to the conduct of the trial, particularly the way Mr Nouri ran his defence. The second concerns the permitted use by Mr Nouri of Mr Pearce’s previous convictions. He also challenges his sentence on the basis of parity with Mr Nouri’s sentence.

Background

In April 2010, Mr Pearce and Mr Nouri travelled to a hotel in Auckland in a car rented by Mr Pearce. Mr Pearce rented a two-storey apartment on the tenth floor of the hotel. It had two double bedrooms, one of which contained a safe. CCTV footage showed two unidentified Asian men exit the elevator on the tenth floor and walk in the direction of the rented room in question. Once he had seen the footage played in Court, Mr Nouri claimed in his evidence the Asian men had entered the apartment and provided Mr Pearce with drugs in exchange for money. The men were later seen leaving the tenth floor via the elevator. Mr Pearce denied having ever seen the men.
Sometime later Mr Nouri left the apartment to collect a female prostitute from reception. Together they came up to the apartment. Mr Pearce left the apartment. Later that evening police…

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 Pearce v R

Details

AGLC: Pearce v R [2014] NZCA 388
Case: [2014] NZCA 388
Decision Date: 14 August 2014 at 3.00 pm

CaseChat Overview and Summary

Ward Harry Pearce appeals against his conviction and sentence. He was jointly tried with Mr Nouri and found guilty of drug charges. The appellant submits the conduct of Mr Nouri's defence caused him to suffer a substantial miscarriage of justice and the admission of his previous convictions was in error. The appeal is dismissed. The conduct of Mr Nouri's defence did not cause unfair prejudice to the appellant. The evidence given by Mr Nouri was both legally and factually founded and he was entitled to advance the defence he chose. The common law and statutory notice requirements do not require an accused to provide a full brief of evidence to a co-accused. The appellant was not surprised by the content of Mr Nouri's evidence and it did not occasion a miscarriage of justice. The appellant's previous convictions were properly admitted as propensity evidence. The appellant implied he was a person of good character and Mr Nouri was entitled to respond to this. The appellant's sentence is not grossly disproportionate to that of Mr Nouri's. The difference is attributable to the circumstances of totality rather than culpability.

Orders