Counsel: D Johnstone and M Williams for Crown
C Wilkinson-Smith and AM Simperingham for P Bouavong
S Lance for Nguyen
P Heaslip for Maleko D G Young for Poon L Smith for Keophila
M Dhyrberg and OR Hintze for Zhang

Judgment: 8 March 2012

Reasons: 23 March 2012

REASONS FOR RULING (NO. 7) OF TOOGOOD J [USE OF CONVICTIONS OF CO-ACCUSED UNDER S 49(1) EVIDENCE ACT 2006]

Solicitors:
D Johnstone/M Williams, Meredith Connell, Auckland: david.johnstone@meredithconnell.co.nz , mark.williams@meredithconnell.co.nz
C Wilkinson-Smith, Barrister, Auckland: Chris@defence.co.nz
S Lance, Barrister, Auckland: sion@simonlance.co.nz
P Heaslip, Barrister, Auckland: paulheaslip@xtra.co.nz D G Young, Barrister, Auckland: dgyoung@xtra.co.nz L Smith, Auckland: lsmith@ihug.co.nz
M Dyhrberg, Barrister, Auckland: maried@mariedyhrberg.co.nz

R V BOUAVONG& ORS HC AK CRI-2010-004-12426 [Ruling 8 March 2012; Reasons for Ruling
23 March 2012]

Introduction

[1] On 14 March 2012, I declined to enter convictions against Aenoy Bouavong on charges to which he had pleaded guilty in the course of the trial. Counsel for the Crown had foreshadowed their intention to apply under s 49(1) of the Evidence Act
2006 (“the Act”) to rely upon the evidence of any such convictions as conclusive proof that Mr Bouavong and two other former co-accused (who had pleaded guilty prior to trial) had committed the offences of which they were convicted, and I was asked to reserve the position until after I had heard argument from counsel.

[2] On 29 February 2012, I declined the Crown’s application to adduce proof of the convictions under s 49. Prior to the delivery of the jury’s verdicts, I accepted the application of Mr Johnstone on behalf of the Crown, under s 380 of the Crimes Act
1961, to reserve for the opinion of the Court of Appeal the questions of law arising from my ruling.

[3] These are my reasons for doing so.

Background

[4] When this trial began on 7 February 2012, the indictment contained a total of

44 counts alleging variously possession of pseudoephedrine for supply; possession of methamphetamine for supply; supplying methamphetamine; conspiring to supply methamphetamine; and money laundering. Seven accused were arraigned. One of them, Aenoy Bouavong, said he did not recognise the jurisdiction of the Court and his refusal to plead was taken, in respect of each count against him, as a plea of not guilty. The other six accused all pleaded not guilty.

Aenoy Bouavong’s changes of plea and the Crown’s intention to rely on s 49
Evidence Act 2006

[5] On 13 February 2012, the fifth day of the trial, Mr Johnstone indicated that the Crown wished to proffer an amended indictment in which several counts were consolidated (by combining the original allegations of two separate transactions into

one). This reduced the counts to 39. I was told by counsel for Aenoy…

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 R v Bouavong

Details

AGLC: R v Bouavong [2012] NZHC 524
Case: [2012] NZHC 524
Decision Date: 8 March 2012

CaseChat Overview and Summary

In the case of R v Bouavong, the High Court of New Zealand was tasked with deciding whether the Crown could rely on the convictions of co-accused individuals under section 49(1) of the Evidence Act 2006. The case involved multiple accused individuals, some of whom had pleaded guilty before trial, while others faced trial. The Crown sought to introduce evidence of the guilty pleas and convictions to support their case against the remaining accused, arguing that it would establish key facts such as the identity of the drug and the occurrence of the supply on specific dates.

The court examined the statutory purpose of section 49, which is to avoid unnecessary re-litigation of issues previously determined by the courts. However, the court found that allowing the Crown to rely on the convictions in this manner would unfairly prejudice the remaining accused by closing off aspects of the live issues for decision by the jury. The court held that the probative value of the convictions, while high in isolation, did not provide additional value in the context of the broader case, and that the risk of unfair prejudice outweighed the probative value.

The court also considered whether the proposed use of section 49 fell outside its intended purpose and whether exceptional circumstances existed under section 49(2) that would justify limiting or excluding the use of the convictions. The court concluded that the circumstances were indeed exceptional, as the legislature did not intend for section 49 to be used to bolster the Crown's case against co-accused merely by relying on fortuitous guilty pleas. The court found that the risk of unfair prejudice could not be sufficiently mitigated by a direction to the jury.

Ultimately, the court ruled that the evidence of the convictions should be excluded under section 8(1) of the Evidence Act, and reserved the questions of law arising from this ruling for the opinion of the Court of Appeal.

Orders