R v B HC Ak CRI 2007-004-10053
[2010] NZHC 2450
•15 February 2010
This case has been anonymized
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN
LAW REPORT OR LAW DIGEST PERMITTED
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-004-10053
THE QUEEN
v
B AND N
Hearing: 11 February 2010
Appearances: A M McClintock and C P Paterson for Crown
K G Krebs for B
C B Hirschfeld and Ms Karena for N
Judgment: 15 February 2010
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time o f11 am on Monday 15 February 2010
Solicitors:
Crown Solicitor Auckland
J G Krebs, Napier, [email protected]
C B Hirschfeld, Auckland, [email protected]
R V B AND N HC AK CRI 2007-004-10053 [15 February 2010]
[1] Ms N ’s trial is scheduled to commence in this Court on 8 June 2010. In an extensive indictment the Crown alleges against her a number of serious drug related offences, together with a number of charges of receiving, and of altering a document with intent, pursuant to s 258(1)(a) of the Crimes Act 1961.
[2] Ms N ’s co-offender, Mr B , has indicated that he proposes to plead guilty to a number of charges. He is shortly to be arraigned for that purpose. In consequence it is expected that Ms N will ultimately face trial alone.
[3] She now applies for an order directing severance of the receiving charges, counts 34-39 inclusive, from the remainder of the indictment.
Legal principles
[4] The Court has jurisdiction, pursuant to s 340 of the Crimes Act 1961, to direct severance of one or more counts in an indictment from the remainder. The ultimate test is whether it is conducive to the ends of justice to do so.
[5] In R v W [1995] 1 NZLR 548 at 555, the Court of Appeal said:
The general principle is that counts arising from incidents unrelated in time or circumstance are not to be tried together, unless evidence as to one is relevant to another, to an extent that its probative value outweighs its prejudicial effect.
[6] In R v Anderson CA144/01, 1 August 2001, the Court of Appeal observed that the discretion is wide. In the end what is required is a balance between the legitimate interests of an accused and the public interest in a fair and efficient dispatch of the Court’s business.
[7] More recently, in R v S CA323/05, 3 November 2005, the Court of Appeal observed at [14] that:
…cross-admissibility of evidence is not a pre-requisite, nor is absence of relationship in terms of time or circumstance necessarily decisive. The ultimate consideration is whether a fair trial will remain attainable, absent
severance, which will depend on amongst other considerations the nature of the allegations, the degree of commonality and whether proper directions to the jury will provide an adequate safeguard against the risk of propensity reasoning.
[8] As was said in R v Mullany CA232/05, 21 November 2005 at [11]:
The fundamental issue is whether there is material risk of real prejudice to the accused if the charges proceed together in the same indictment. Subject to that, the Court may take into account the practicalities of criminal process, having regard to factors such as the degree of connection between the charges, the impact of successive trials on the accused and witnesses and the likely effect of publicity of the first trial and subsequent trials. Provided the case is managed in a way that does not impose excessive demands upon a jury the prosecution may join a substantial number of counts in a single indictment so as to demonstrate the nature and extent of the alleged criminality: R v Tukuafu [2003] 1 NZLR 659.
Factual background
[9] In July 2008, Mr B and Ms N were living together in a residence at Denby Lane, Northcote Point. On 25 July 2008 they were arrested there, following the execution of a search warrant which uncovered drugs, drug paraphernalia and weapons, including:
a) Methamphetamine (67.6g) (located predominantly in the master bedroom);
b) BZP tablets (approximately 707);
c) Precursors and materials including pseudoephedrine, hydrochloric acid, acetone, iodine, dropping pipette, plastic funnel, coffee filters;
d) A pen gun and OC spray;
e) 1.98kg of pseudoephedrine;
f) $46,210 in cash and a “tick list”;
g) Numerous snaplock bags, scales;
h) A large amount of iodine in solid form (approximately 3.3kg).
[10] The Crown will call evidence of indications of methamphetamine manufacture at that address. In addition there was surveillance equipment on the property, linked to a television monitor in the house. The police also located a police scanner in the master bedroom.
[11] During the search of the property the police seized from Ms N a key which was found to unlock a storage unit in Penrose. On 7 August 2008 the police executed a search warrant at the storage unit and found inside it a very significant array of equipment and material used in the manufacture of methamphetamine. They also located weapons and stolen property, including various items of construction equipment, a computer and a motorcycle.
[12] Ms N was at that time released on bail. On 18 March 2009 the police executed a search warrant at an address in Nelson Street, Auckland City. There they located a small quantity of methamphetamine, two methamphetamine pipes, and documents suggesting that false drivers’ licences and passports had been created. Thereafter Ms N was remanded in custody.
Discussion
[13] Counts 18-31 inclusive of the amended indictment allege drug related offences against Ms N . Counts 32 and 33 allege firearm offences. Counts 40 and 41 allege further drug offending. Counts 42-44 charge offences relating to the preparation of false documents. It is not in dispute that all of these offences should go to trial together.
[14] Counts 34-39 inclusive, on the other hand, relate to the finding of the allegedly stolen property at the storage unit. In each case, Ms N is charged with receiving in respect of those items. It is these counts which Mr Hirschfeld argues ought to be severed from the balance of the indictment and tried separately.
[15] The argument for Ms N is that the receiving charges are not sufficiently related in character to the drug allegations to justify a joint trial, and that there is a danger if all the charges are heard together, that a jury may engaged in improper propensity reasoning, which appropriate judicial direction would not overcome. In other words, a jury might conclude that, having determined Ms N was guilty of receiving (should that be the case) she must also be guilty of the drug offences by reason of her propensity for dishonest conduct.
[16] Mr Hirschfeld also submits that the receiving charges could be dealt with relatively simply in the District Court where a trial would take no more than three days. He suggests in addition that witness overlap would be limited, and argues that, overall, the interests of justice will be served by an order for severance.
[17] Ms McClintock opposes the application. She points out that the allegedly stolen property was found in the same place at the same time as the drug related equipment, so that the requirement for correspondence in time or circumstance (R v W) is satisfied. She expresses particular concern over the extent to which the Crown case may be unfairly hampered if the receiving charges are severed from the balance. This concern arises in the following way: the Crown will call at trial evidence to establish that, shortly before the execution of the warrant at the storage unit, Ms N was seen on closed circuit television to remove the allegedly stolen property from another nearby unit, and place it in the same unit as that where the drug related equipment was stored. That evidence assists the Crown case by establishing the link between Ms N and the allegedly stolen material, and between her and the storage unit. Of particular importance in this respect is the fact that there was a strong and distinctive chemical smell in the storage unit, consistent with the storage in a confined space of equipment that had been used for the manufacture of methamphetamine. The Crown argument will be that Ms N must have been aware of the use to which the equipment had been put, by reason of the pungent odour in the storage unit, if for no other reason.
[18] Ms McClintock is concerned that, if the receiving charges are severed, the Crown will be unable to call important evidence of Ms N ’s connection with the stolen property and with the storage unit.
[19] That is plainly a relevant consideration, which I discussed with Mr Hirschfeld. He formally accepted that, if the receiving charges were severed, the Crown would nevertheless remain able to call evidence of Ms N ’s dealings with the stolen property and of her connection with the storage unit. All that would be precluded would be evidence that the items covered by counts by 34-39 were stolen. In my view that concession was inevitable. If severance is granted, the Crown cannot be placed in a position which unfairly hampers the presentation of evidence which tends to link Ms N with the drug related offences.
[20] Ms McClintock does not argue that the stolen property is directly connected in any way with the drug related equipment, but she says that to sever the receiving charges would distort the narrative of events placed before the jury. She argues that prejudice to the accused would be minimal if severance was refused, and insufficient to outweigh the probative value of the evidence which the Crown would wish to call in support of the receiving charges.
[21] Ms McClintock did not address in detail the extent of the administrative inconvenience which would follow from an order for severance, but advises the Court that both civilian and police witnesses would need to give evidence on two occasions. I take into account (as must always be done on severance applications), considerations of delay, expense and inconvenience in the event that an order for severance is made.
[22] I have identified two recent cases in which this Court has considered, for severance purposes, the relationship between alleged drug offending on the one hand, and dishonesty offending on the other.
[23] In R v Towgood HC Whangarei CRI-2005-088-3563, 26 May 2006, charges of manufacturing methamphetamine and possession of equipment and precursor substances, were accompanied by two counts of receiving stolen chainsaws. The chainsaws were located by the police at the residence of the accused upon the execution of a warrant following his apprehension while driving his motor car, and the discovery of drugs and drug related item in the vehicle. Lang J accepted that the evidence relating to the stolen chainsaws formed part of an unbroken sequence of
events that led ultimately to the drug charges, but directed that they be severed from the balance of the offending. He said:
[81] In the end, I have been persuaded that severance should be ordered. I have reached this conclusion because, although the receiving charge has arisen out of the same series of events as the drugs charges, it involves a very different allegation. It involves an allegation of dishonesty on the part of Mr Tuki alone. That will involve an inquiry by the jury of a very different nature to that to be undertaken in relation to the drugs charges.
[82] Moreover, Mr Fairley advised me that Mr Tuki may elect to defend the receiving charge by putting the Crown to proof and calling no evidence. He may elect, however, to give evidence on the drugs charges to explain why he was at the Raumanga Valley Road address on 14 October 2005. In that event he would be open to cross-examination on all charges, including those faced by Mr Towgood.
[83] In those circumstances I consider that it is conducive to the ends of justice to order that the receiving charge be tried separately. That application will therefore be granted.
[24] In Guthrie v R HC Auckland CRI-2005-090-6082, 2 November 2007, the accused faced an indictment containing 10 counts of receiving stolen property, and four alleging drug offending, including possession of methamphetamine for supply. The receiving charges concerned different items of property, including electronic equipment and car accessories. They were located at the applicant’s residence and at a storage unit.
[25] Cooper J accepted that all of the counts related to offending linked to some degree by time, but he considered that there was an insufficient conjunction of circumstance for the counts to be tried together, and that the prejudicial effect of hearing both sets of charges together would outweigh any probative value of doing so. He identified the risk of real prejudice to the accused, notwithstanding any directions which might be given by the trial Judge about the use to which evidence about receipt of the stolen property could properly be put.
[26] He considered R v Sturgeon CA196/04, 15 September 2004, where the Court of Appeal had reviewed a decision to refuse severance in a case where alleged drug offending was accompanied by charges of possession of firearms, and a further charge of receiving a four wheel motorcycle. The Court of Appeal accepted that there was a sufficient association between the firearms charges and the large scale
drug offending alleged by the Crown, to justify the decision to refuse severance in respect of the firearms charges. But it held that, although the Crown was free to lead evidence as to the finding of the motorcycle at the property, and as to the use to which it appeared to have been put, the fact that the motorcycle had allegedly been dishonestly obtained was simply not relevant. The alleged dishonesty lacked probative force in respect of the remaining counts. Accordingly, the Court of Appeal allowed the appeal to the extent that an order for severance was made in respect of the count related to the motorcycle.
[27] In my opinion Ms N is entitled to an order severing counts 34-39 inclusive from the balance of the indictment. The receiving charges are of little probative value to the Crown in respect of the remaining counts in the indictment; at the same time there is a discernible risk of real prejudice to the accused in the sense that the jury may well engage in impermissible propensity reasoning irrespective of careful judicial direction. It was that concern that unpinned the decisions to which I have referred above.
[28] Severance will not prevent the Crown from calling evidence about the stolen property. There is no reason why the jury cannot be told about Ms N ’s role in taking the items concerned from one storage unit to another, where they were discovered. Nor is there anything to prevent the Crown from calling evidence to the effect that her fingerprints were on the items of property so removed. But it would be unduly prejudicial to Ms N for the Crown to call evidence designed to establish that the property was stolen, or that she was dishonestly in possession of it.
Result
[29] For the foregoing reasons the application for severance succeeds. There will be an order severing counts 34-39 inclusive from the indictment, and directing that they be the subject of a separate trial.
C J Allan J
0
0
0