R v Bouavong
[2012] NZHC 524
•8 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-004-12426 [2012] NZHC 524
THE QUEEN
v
PHOKHAM BOUAVONG, THI HONG LAN NGUYEN, TAVITA MALEKO, KA KIT DEREK POON, AENOY KEOPHILA, XIANG ZHANG
Hearing: 7-10, 13-17, 20-24, 27-29 February 2012 and 1, 2, 5-9, 12-16 March
2012
Counsel: D Johnstone and M Williams for Crown
C Wilkinson-Smith and AM Simperingham for P Bouavong
S Lance for NguyenP 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: [email protected] , [email protected]
C Wilkinson-Smith, Barrister, Auckland: [email protected]
S Lance, Barrister, Auckland: [email protected]
P Heaslip, Barrister, Auckland: [email protected] D G Young, Barrister, Auckland: [email protected] L Smith, Auckland: [email protected]
M Dyhrberg, Barrister, Auckland: [email protected]
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 Bouavong that, if arraigned on the amended indictment, Mr Bouavong would plead guilty to all but one of the 37 counts remaining against him. A copy of the draft amended indictment, with Mr Bouavong’s guilty pleas endorsed and signed by him, was handed up.
[6] Mr Johnstone informed me that, if Mr Bouavong pleaded guilty as indicated upon re-arraignment, the Crown would not pursue the remaining count. He also foreshadowed that the Crown would apply to have convictions entered against Mr Bouavong on each of the counts to which he pleaded guilty, and then seek to rely upon those convictions, under s 49(1) of the Act , as conclusive proof that he had committed the offences of which he had been convicted. The Crown signalled also that it would similarly seek to rely upon convictions which had been entered against two other persons, Henry Anthony Mika and Feng Chih Hsu, who had initially been accused in the same indictment but who had pleaded guilty prior to trial.
[7] The exchanges in which all of this information was provided took place in the absence of the jury but in the presence of counsel for the other accused.
[8] Counsel for the remaining accused submitted that Mr Bouavong’s pleas to the amended indictment should be taken in the absence of the jury, and not made known to the jurors. They requested that convictions not be entered following any guilty plea, pending a ruling as to whether the convictions of Aenoy Bouavong, Mika and Hsu could be relied upon in the manner proposed by the Crown.
[9] After hearing argument, I agreed that convictions against Mr Bouavong would not be entered pending argument and my decision on whether the Crown should be permitted to rely on s 49 in respect of any convictions entered against any of the co-accused who had pleaded guilty. It followed that convictions would be entered in due course. I ruled that Mr Bouavong should be re-arraigned in front of the jury who might otherwise speculate about his sudden absence from the trial,1 and considered that an appropriate direction to the jury would deal with any potential
prejudice which might arise if I ruled that the Crown would not be permitted to rely on s 49.
[10] Aenoy Bouavong pleaded guilty as indicated to the amended indictment and the Crown offered no evidence on the remaining count. On that count, Mr Bouavong was discharged under s 347 of the Crimes Act 1961. Mr Bouavong was remanded in custody for sentence and took no further part in the trial.
[11] Section 49 of the Act reads:
49. Conviction as evidence in criminal proceedings
(1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.
(2) Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—
(a) permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and
(b) if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.
(3) A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.
[12] It was agreed that, consistently with the Crown’s obligations under s 49(3) of the Act, and with the procedure described by the Court of Appeal in R v Fraser,2
Mr Johnstone would provide a written application for a ruling that certain evidence of the convictions of the three former co-accused was admissible against the remaining accused and would provide draft certificates of convictions. It was indicated that the application would set out the purposes for which the Crown would seek to rely on the convictions.
[13] It was agreed by all counsel that there would then be full argument and that I
should give my ruling prior to the closure of the Crown case.
[14] Submissions were heard from the Crown and from counsel for the remaining accused on 24 and 27 February 2012 and I gave my ruling on 29 February 2012.3
The Crown’s allegations
[15] In order to explain the submissions for the Crown and for the defence, it is necessary first to describe something of the nature of the Crown’s case.
[16] The remaining counts in the indictment, following the amendments and
Aenoy Bouavong’s guilty pleas, were as follows:
Count Charge Accused charged
3 Supplied methamphetamine (with Aenoy Bouavong)
on 29 March 2010 to Thanoungeun Arounsaphay
4 Supplied methamphetamine (with Aenoy Bouavong)
on 31 March 2010 to Aenoy Keophila
5Conspired with Aenoy Bouavong to supply methamphetamine between 31 March 2010 and
13 June 2010 to one or more other persons
6Supplied methamphetamine (with Aenoy Bouavong) on or about 4 April 2010 to one or more other persons
7Supplied methamphetamine (with Aenoy Bouavong) between 5 April 2010 and 13 April 2010 to a person known as ‘White Boy’ or ‘Mikey’ -
9Supplied methamphetamine (with Aenoy Bouavong) on or about 7 April 2010 to one or more other persons
10 Supplied methamphetamine (with Aenoy Bouavong)
on 20 April 2010 to Thanoungeun Arounsaphay
11 Supplied methamphetamine (with Aenoy Bouavong)
on or about 20 April 2010 to Henry Anthony Mika
12 Supplied methamphetamine (with Aenoy Bouavong)
on or about 3 May 2010 to one or more other persons
13 Supplied methamphetamine (with Aenoy Bouavong)
on or about 7 May 2010 to one or more other persons
14Supplied methamphetamine (with Aenoy Bouavong) on 7 May 2010 to Thanoungeun Arounsaphay and/or Ronald Cooper
Poon Poon Maleko
Poon; Keophila
Poon
Poon; Keophila
Poon
Poon
Poon; Keophila; Nguyen
Poon; P Bouavong; Keophila; Nguyen
P Bouavong
Count Charge Accused charged
15Supplied methamphetamine (with Aenoy Bouavong and a person understood to be Ming Chan) on or about 13 May 2010 to one or more other persons
16Supplied methamphetamine (with Aenoy Bouavong and a person understood to be Ming Chan) on or about 15 May 2010 to one or more other persons
18Supplied methamphetamine (with Aenoy Bouavong and a person understood to be Ming Chan) on or about 18 May 2010 to one or more other persons
19Supplied methamphetamine (with Aenoy Bouavong and a person understood to be Ming Chan) on or about 21 May 2010 to one or more other persons
20Supplied methamphetamine (with Aenoy Bouavong and a person understood to be Ming Chan) on or about 23 May 2010 to one or more other persons
21Supplied methamphetamine (with Aenoy Bouavong and a person understood to be Ming Chan) on or about 27 May 2010 to one or more other persons
22Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 29 May 2010 to one or more other persons
24Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 1 June 2010 to one or more other persons
25Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 2 June 2010 to a person referred to as ‘White Boy’ or ‘Mikey'
26Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 3 June 2010 to one or more other persons
27Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 4 June 2010 to one or more other persons
29 Engaged in a money laundering transaction (with
Feng Chih Hsu) on or about 11 June 2010
30Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on 13 June 2010 to a person referred to as ‘White Boy’ or ‘Mikey’
31Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 18 June 2010 to one or more other persons
32Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 23 June 2010
Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen P Bouavong Keophila; Nguyen Keophila; Nguyen
Zhang
P Bouavong Keophila; Nguyen Keophila; Nguyen
Count Charge Accused charged to one or more other persons
33Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 26 June 2010 to one or more other persons
34Supplied methamphetamine (with Aenoy Bouavong) on or about 28 June 2010 to one or more other persons
35Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 29 June 2010 to one or more other persons
36Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 1 July 2010 to one or more other persons
37 Engaged in a money laundering transaction (with
Feng Chih Hsu) on or about 2 July 2010
38 Supplied methamphetamine (with Aenoy Bouavong)
on or about 3 July 2010 to one or more other persons
39Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 7 July 2010 to one or more other persons
40Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 9 July 2010 to one or more other persons
41Supplied methamphetamine (with Aenoy Bouavong and Henry Anthony Mika) on or about 12 July 2010 to one or more other persons
42Conspired with Aenoy Bouavong and Henry Anthony Mika to supply methamphetamine on 15 July 2010 to one or more other persons
Keophila; Nguyen
Maleko
Keophila; Nguyen
Keophila; Nguyen
Zhang
Maleko
Keophila; Nguyen Keophila; Nguyen Keophila; Nguyen
Keophila; Nguyen
[17] The case for the Crown was that Aenoy Bouavong was the ringleader in a joint drug dealing enterprise in which each of the other accused participated in some way. It was not necessarily the case, however, that Aenoy Bouavong should be considered to be the principal offender in respect of each alleged drug transaction; the part he and each accused played in the overall enterprise varied from transaction to transaction.
[18] The case was based upon a substantial body of evidence obtained from intercepted telephone conversations and text messages obtained pursuant to warrants
under the Misuse of Drugs Act 1975, together with evidence obtained during covert surveillance of the participants and physical exhibits, including a substantial quantity of methamphetamine and pseudoephedrine, seized at the time of the termination of the Police operation.
[19] The accused Poon was said to have been one of Aenoy Bouavong’s runners who supplied the methamphetamine to others. At some point a man named Ming Chan was said to have taken over Poon’s role and at around that time the accused Keophila and Nguyen also become significant members of the enterprise. It was alleged that they received from Chan, and then his replacement Henry Mika, large quantities of methamphetamine for further distribution. The accused Maleko was also said to have been a distributor. Phokham Bouavong, the brother of Aenoy, was alleged to have participated in the enterprise by assisting his brother in the operation of the distribution chain.
[20] On 7 May 2010, another member of the enterprise, Thanoungeun Arounsaphay, was apprehended in possession of around ten ounces of methamphetamine, after having been followed from what the Crown says was a meeting with Aenoy and Phokham Bouavong at their apartment near the Viaduct Harbour.
[21] It was said that regular deliveries of methamphetamine were made to the house where Mr Keophila and Ms Nguyen lived. The Crown evidence was that the Police interrupted one such delivery when they terminated the operation on
15 July 2010, locating two one-ounce bags of methamphetamine in Mr Mika’s
possession when he was apprehended.
[22] No formal admissions were made under s 9 of the Act. All of the accused, apart from Tavita Maleko, put in issue the identity of the persons to whom the Crown attributed the large number of intercepted communications, by text message and phone call. It was not accepted by the defence that the subject-matter of the intercepted communications was drug-dealing, or that methamphetamine was supplied on each occasion on which the Crown alleged that to have occurred.
[23] In those circumstances, the live issues for determination by the jury in respect of each of the counts of supplying methamphetamine were as follows:
(a) Was a substance supplied on or about the dates alleged by the Crown? (b) Was it methamphetamine which was supplied; and
(c) Was each accused a party to the supply?
(d) Did each accused have the requisite criminal intent?
[24] On the conspiracy counts, in addition to the challenges to the Crown’s attributions and to the alleged subject-matter of the communications, there was a denial of any agreement to supply methamphetamine.
[25] Mr Johnstone said that the Crown would rely on both ss 66(1) and 66(2) of the Crimes Act 1961 as may be appropriate to the particular circumstance of the individual accused in relation to each particular transaction.
The Crown’s grounds for seeking to rely on s 49(1)
[26] The purposes for reliance upon the convictions under s 49(1) were set out by
Mr Johnstone in his written application, in the following terms:
(a) The convictions of Aenoy Bouavong (except on count 1, which alleged selling pseudoephedrine with Feng Chih Hsu) and Henry Mika each established key elements of the offences charged against one or more of the accused, other than Mr Zhang (who faced money laundering charges alone). They established:
(i) the identity of the controlled drug as methamphetamine;
(ii)(where the charge involved a supply) the fact of a supply on each occasion;
(iii)the fact of the criminal liability as a party of Aenoy Bouavong and, on occasion, Henry Mika;
(iv)the fact that Aenoy Bouavong conspired with Tavita Maleko, as alleged in count 5; and
(v)the fact that Aenoy Bouavong and Henry Mika each conspired with another person as alleged in count 42.
(b)The conviction of Aenoy Bouavong on count 1 and those of Feng Chih Hsu [on charges of selling pseudoephedrine and possessing pseudoephedrine for the purpose of sale and supplying methamphetamine and possessing methamphetamine for the purpose of sale], established that Hsu was almost certain to have had very large sums of money available to him, particularly at around the time of his methamphetamine supplies to Aenoy Bouavong and/or Ka Kit Poon and Henry Mika. These supplies were immediately before the times of the delivery of large sums of cash to Xiang Zhang. In these respects the convictions would prove (as was a required element) that the cash which was the subject of counts 29 and 37 was wholly or in part the proceeds of a serious offence.
The arguments for the Crown
[27] Mr Johnstone’s submissions focussed on the use of the evidence of the convictions to support the charges of supplying methamphetamine. He acknowledged a particular difficulty in respect of the count alleging a conspiracy between Aenoy Bouavong and Tavita Maleko.
[28] In supporting his argument that the evidence of the convictions ought to be admitted for the purpose of proving the matters set out, Mr Johnstone referred, first, to the preliminary provisions of the Act as being pertinent, emphasising particularly ss 6 and 10. They provide:
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
10 Interpretation of Act
(1) This Act—
(a) must be interpreted in a way that promotes its purpose and principles; and
(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—
(i) its provisions; and
(ii) the promotion of its purpose and its principles; and
(iii) the application of the rule in section 12.
(2) Subsection (1) does not affect the application of the Interpretation
Act 1999 to this Act.
[29] Mr Johnstone noted particularly that s 49(1) reflected the purpose of preventing unjustifiable expense and delay through litigating matters which had already been determined, although he accepted that those considerations did not carry as much weight in a case such as the present where the convictions were based on guilty pleas.
[30] Mr Johnstone also argued that s 49 accorded with the approach to admissibility contained in ss 7 and 8 of the Act, as follows:
7 Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding;
or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence
[31] Mr Johnstone submitted that Parliament’s provision for the admission of convictions under s 49 implies that the legislature considered the convictions to be relevant and, therefore, meeting the test in s 7.
[32] He also referred to the policy considerations for admitting evidence of convictions described in a report by the Law Commission entitled Evidence Law Reform.4 Mr Johnstone adopted, particularly, the three policy reasons set out by the Commission at paragraph 233 of its Report as follows:
(a) Time and expense will often be saved, since making convictions admissible would avoid forcing a party to litigate a matter that has already been
resolved;
4 Law Commission Evidence Law Reform (NZLC R55 Vol 1, 1999).
(b)It makes available evidence that is not only relevant, but also highly probative, since guilt will already have been established to the criminal standard of beyond reasonable doubt;
(c) Not to admit such evidence would run contrary to the policy of the criminal justice system that a criminal conviction is sufficient basis to impose grave penalties.
[33] The Crown placed strong reliance upon the third of these reasons as justifying the Crown’s reliance on s 49 in circumstances where it could not be said that the first two policy grounds applied with substantial force, given the convictions were based on guilty pleas.
[34] Mr Johnstone said that the guilty pleas were indicative of the strength of the Crown’s case and a demonstration of guilt, but he emphasised that the example given by the Law Commission at paragraph 235, of reliance upon s 49 as assisting in the prosecution of a charge of being an accessory after the fact, was not to be taken as exhaustive or as the typical use of the provision. In Mr Johnstone’s submission, the example was merely a convenient illustration of the object of the section in action.
[35] Mr Johnstone also argued that Parliament had gone further than the Law Commission’s suggested provision, by providing that convictions would prima facie be conclusive proof of the commission of the relevant offence; the Commission had recommended only that the conviction would give rise to a rebuttable presumption of the offending.
[36] Mr Johnstone said that Parliament had attached greater weight to convictions as proof, leaving the judicial discretion, in exceptional circumstances, to limit or exclude the use of the convictions as an appropriate “safety valve”. On that basis, he argued, the manner in which the conviction was obtained was irrelevant.
[37] Mr Johnstone submitted that the cases dealing with s 49 fell into two distinct categories: those that sought to prove a propensity, and those that sought to prove a fact relevant to the trial. Accepting that this case fell into the latter of those two
categories, Mr Johnstone drew support from the ruling of Wylie J in R v Gui,5 where the convictions entered against an accused who pleaded guilty to specifically-framed drug charges were admitted as part of the res gestae and to prove the identity of the drug allegedly being supplied by a co-accused who remained on trial.
[38] The Crown submitted that there are obvious parallels with that case in that the same defences as Wylie J said were preserved for the accused Pulete would remain available for the accused in this trial. Crown counsel referred me to other New Zealand cases in which the courts had approved a resort to s 49, including R v K6, R v Walker7, R v VMW8, R v Filer9 and Goffe v R.10
[39] Mr Johnstone acknowledged that in R v Nguyen,11 Priestley J had declined to allow the Crown to rely upon s 49(1) in a case where the Crown proposed to lead evidence of convictions to illustrate that slang and code used by various accused related to methamphetamine and not something else. It was also proposed that the evidence would support the inference that, as those convicted were involved in the supply of methamphetamine over the period in question, the accused must also have been so involved. Priestly J considered that this amounted to allowing the Crown to prove guilt by association in circumstances where the convictions were entered on representative charges of offending alleged to have taken place over a lengthy period, but the remaining accused faced specific allegations contained in 39 counts. In the present case, as Mr Johnstone emphasised, the Crown had been careful to frame the indictment in terms which, for all relevant purposes, identified particular transactions as the foundation for particular counts, and the guilty pleas had been entered on that basis.
Arguments for the defence
[40] Opposing the Crown’s application, Mr Young submitted on behalf of Ka Kit
Poon that, although the evidence of the convictions was clearly probative, it was
5 R v Gui HC Auckland, CRI-2008-044-7390, 27 April 2011.
6 R v K HC Auckland CRI 2008-092-11859, 17 June 2010.
7 R v Walker [2007] NZCA 558.
8 R v VMW HC Auckland CRI 2010-044-3206, 29 April 2011.
9 R v Filer HC Auckland CRI 2011-404-47, 30 November 2011.
10 Goffe v R [2011] NZCA 186, [2011] 2 NZLR 771.11 R v Nguyen HC Auckland CRI 2008-092-17198, 17 September 2010.
inherently unfairly prejudicial in that conclusive proof of the supply of methamphetamine by Aenoy Bouavong, Mika and Hsu on the occasions in question could tip the whole case against the remaining accused without any of the evidence being tested.
[41] For Tavita Maleko, Mr Heaslip drew a distinction between situations where evidence of convictions was being used to prove, conclusively, peripheral issues and those where the Crown was seeking to prove a central element or elements of the offence. He argued that s 49 was not intended to be used to prove the criminality of alleged co-offenders, but merely to prove historical facts on which the prosecution of the co-offenders was based, such as in the situation of a charge of being an accessory after the fact. He submitted that, there being all sorts of reasons why people plead guilty in criminal proceedings, the Court could not be assured to the standard envisaged by the Law Commission that the convictions were based on reliable evidence.
[42] Ms Dyhrberg, for Xiang Zhang, argued essentially that proof of the convictions of Aenoy Bouavong and Hsu on the relevant charges added little by way of probative value to the elements of the money laundering counts faced by Mr Zhang. She said that the real issue in the case against her client was whether he had the requisite knowledge of the source of the money with which he dealt, or a belief or recklessness as to the source, and that proof of the convictions, particularly those of Mr Hsu, would carry the risk of guilt by association.
[43] Mr Simperingham for Phokham Bouavong argued that reliance upon the convictions would obscure the real question at issue in the trial, which was the quality and quantity of the drug allegedly supplied on individual occasions. In that respect, he submitted that the Crown’s evidence had less probative value than the Crown contended. He submitted that proof of the convictions would be a “blunt instrument” leading to a real risk of guilt by association, with the large number of guilty pleas having an overwhelming prejudice effect. He emphasised particularly the fraternal relationship between his client and Aenoy Bouavong, and submitted that proof of Aenoy Bouavong’s major involvement in drug dealing would overwhelm the relatively small number of counts faced by his client.
[44] Defence counsel argued that there was a risk that, upon being told that the nature of the substance and the fact of supply were proved beyond reasonable doubt, the jury would accord more weight than it otherwise should to other aspects of the Crown case and the evidence which related to them. The impermissible or illogical subconscious thought process would be: “Well, if the Crown case has been proved on points A, B and C, it must be right on X, Y and Z as well”. It was argued that there was a risk, therefore, that the jury would not hold the Crown to the same high standard of proof required on all the elements of the offences charges.
[45] While it was acknowledged that the jury would be directed to focus its attention on the elements of proof of involvement and the necessary criminal intent in respect of each of the accused on trial, and each count, it was submitted that it would be difficult to word a logical direction to the jury.
[46] It was also argued in this case that unfair prejudice arose from the fact that convictions sought to be adduced related to a substantial number of charges in which Aenoy Bouavong was seen as the central figure. It was contended by defence counsel that the Crown’s ability to rely on Mr Bouavong’s conviction on those charges, relating to nearly every aspect of the police operation and the trial, would overwhelm the jury’s thinking. As Priestley J observed in Nguyen, there is a risk that broad perceptions or suspicions, inappropriate in the context of a criminal trial, will
be created.12 Although the factual basis for the convictions on which the Crown
sought to rely in Nguyen was general rather than specific, as here, it was argued that requiring the jury to regard the convictions as going to the proof of the charges against the remaining accused clearly raised some risk of unfair prejudice through guilty association.
[47] For Ms Nguyen, Mr Lance also argued that the additional probative value of the convictions was not in fact as strong as the Crown contended, given that the Crown’s case as to the nature of the substance supplied on any occasion was already strong. In that regard he pointed to the large quantities of methamphetamine located
at the time the surveillance operation was terminated, and to the strong inferences to
12 At [18].
be drawn from the use of coded and evasive language, by Aenoy Bouavong in particular.
[48] Mr Lance argued that it would be difficult, if not impossible, for the necessary directions to be given to the jury as to how the convictions should be used in their deliberations, and that the directions would necessarily be contradictory. In essence, he argued that it would be difficult to frame a direction which made it clear that, while the convictions amounted to conclusive proof that Mr Bouavong had committed the offences, those with whom he was said to have committed them could nevertheless argue that the Crown had failed to prove its case that they had also committed them.
[49] In Mr Lance’s submission, mere knowledge of Mr Bouavong’s guilty pleas would be prejudicial, even without reliance upon s 49, but the prejudicial effect was capable of amelioration by a strong direction that people plead guilty for all sorts of reasons and that Mr Bouavong’s admissions of offending were not admissible as evidence against any of the co-accused.13 He said elevating the probative value of the guilty pleas by reliance on convictions would effectively deprive Ms Nguyen of an available defence which was at least arguable, given the Crown’s reliance in respect of individual counts, on evidence of intercepted communications to prove
actual supply.
[50] Mr Lance placed considerable reliance on the approach taken by the English Courts under the equivalent statutory provisions14 where, he said, the view was that evidence of convictions related to the very charge which was levelled against the accused should be admitted only sparingly.15 He submitted that the policy basis for s 49 as described by the Law Commission did not encompass the situation which arose in the present case, where the Crown was effectively seeking to prove an
otherwise disputable element of its case by the fortuitous entering of guilty pleas by
13 R v Windsor [1953] NZLR 83.
14 Police and Criminal Evidence Act 1984 (UK), ss 74,75 & 78.
15 See P J Richardson (ed) Archbold Criminal Pleading, Evidence and Practice 2012, (Sweet & Maxwell, London 2012, at 9-79 to 9-94; and R v Robertson; R v Golder [1987] QB 920; R v Curry [1988] CrimLR 527 (EWCA); R v Kempster 90 CrAppR 14 (EWCA); R v S [2007] EWCA Crim
2105, (2007) 151 SJ 1260.
only some of a number of co-accused. He submitted that it was never Parliament’s
intention that the section should be applied in that way.
[51] For Mr Keophila, Mrs Smith endorsed Mr Lance’s submissions, suggesting that the proposed use of s 49 was outside the considerations which led the Law Commission to recommend abolishing the rule in Hollington v Hewthorn16 so far as it applied to criminal cases. She argued that it could not have been intended to deprive an accused of a proper defence in a case where the Crown sought to prove an essential element of a charge rather than a matter which is preliminary to the main offending alleged.
[52] In replying to these submissions, Mr Johnstone maintained that any prejudice which arose from the use of the convictions in the manner proposed could be sufficiently ameliorated by a direction to the jury. He argued that the nature of the case, which turned really on party liability and the degree of knowledge and guilty intent of each of the accused, meant that the summing up would effectively be about the jury putting to one side the possibility of guilt by association.
[53] As to the arguments that the accused would be deprived of an effective defence, a factor to be considered under s 8(2) of the Act, Mr Johnstone suggested that the Court’s focus should not be on what an accused would prefer to argue or could conceivably argue but what remained for them to argue. This was the approach, he said, taken by Wylie J in R v Gui. There were, in his submission, viable and arguable defences for the majority of the counts, and the safety valve provided by s 49(2) could be invoked if the Court saw fit, although this was very much a fallback position.
[54] Mr Johnstone fairly acknowledged that the conspiracy charges gave rise to discrete issues about the appropriateness of permitting the Crown to rely on s 49. Count 5 in the indictment alleged that Aenoy Bouavong and Tavita Maleko, one of the accused who remained on trial, conspired to supply methamphetamine between
31 March 2010 and 13 June 2010 to one or more other persons. If Mr Bouavong’s
guilty plea to that count resulted in a conviction which, when produced in evidence,
16 Hollington v F Hewthorn & Co [1943] KB 587.
proved conclusively that he had committed that offence, Mr Maleko’s offending would be impliedly proved also, as he was the only other alleged conspirator. Mr Johnstone agreed that this would be an exceptional circumstance, in terms of s 49(2), which would justify the Court in exercising its discretion under s 49(2)(a) to allow the conviction to be used as rebuttable evidence only. This, he said, would leave it open to Mr Maleko to argue that Mr Bouavong and he had not reached the necessary agreement or, at least, that he lacked the necessary criminal intent.
[55] In respect of count 42, which alleged a conspiracy between Aenoy Bouavong and Henry Mika, who had pleaded guilty, and Aenoy Keophila and Thi Hong Lan Nguyen, who were co-accused on trial, Mr Johnstone saw the position as being somewhat different. He argued that since there were four alleged conspirators, using s 49(1) to prove that Mr Bouavong and Mr Mika had committed those offences would not necessarily amount to proof that Mr Keophila and Ms Nguyen had also committed them. Nevertheless, he accepted that it might be appropriate to allow Mr Bouavong’s and Mr Mika’s convictions on count 42 to be treated as giving rise to a rebuttable presumption only.
The relevant provisions
Section 49 of the Evidence Act 2006
[56] Section 49 contemplates three possibilities: first, that the Crown would be permitted to adduce evidence of the convictions as conclusive proof that the person convicted committed the offence or offences;17 second, that proof of the convictions could be relied upon as rebuttable evidence that the person convicted had committed the offence or offences;18 and, third, that the Crown would not be permitted to rely at all upon the convictions as evidence that the person convicted had committed the offence or offences.19 The second and third possibilities are what Mr Johnstone for the Crown described as the “safety valve” by which the Court could deal with manifest injustice in the application of s 49(1), if the Court was satisfied that
exceptional circumstances existed.
17 Evidence Act 2006, s 49(1).
18 Section 49(2)(a).
19 Section 49(2)(b).
[57] In considering the legislative purpose of s 49, I derived some assistance from English case law concerning the United Kingdom equivalents of ss 8 and 49 of the Evidence Act; namely, ss 78 and 74 respectively of the Police and Criminal Evidence Act 1984 (UK) (“the UK Act”). Those provisions are worded differently from their New Zealand counterparts. Notably, s 74 of the UK Act creates only a rebuttable presumption of the commission of the offence. Section 78 preserves the discretion of the judge to exclude the evidence on the grounds of unfairness. So far as is relevant, it reads:
78 Exclusion of unfair evidence
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
....
[58] Bearing in mind those differences, and noting that cases decided prior to the
2003 amendment to the Act20 should be considered with some caution, I found the English cases to be instructive in holding, variously, that s 74 (the equivalent of our s 49) was intended to be used for cases where it was necessary for it to be proved that a person other than the accused had been convicted of an offence to avoid the matter having to be proved twice (even where the other person had pleaded guilty);21 that it should be used ‘sparingly’ in cases such as the present;22 and that it was inappropriate to admit by proof of prior conviction evidence which went a long way to covering off ultimate issues at trial.23 It might have been expected that the English courts would have been even more wary of permitting recourse to s 74 if it had
provided for conclusive proof rather than a rebuttable presumption.
[59] Bearing in mind the policy considerations articulated by the Law
Commission and the importance to be attached to the right to a fair trial contained in
20 Criminal Justice Act 2003 (UK), in force from 15 December 2004.
21 R v O’Connor (1987) 85 CrAppR 298 (EWCA).
22 R v Robertson at n15 above.23 R v S at n15 above.
s 25 NZBORA, I concluded that the principal object of s 49 was to avoid the unnecessary re-litigation of issues which had previously determined by the courts, particularly where proof of the prior offending was a condition precedent or pre- cursor to the main issues before the court.
[60] It was, correctly, common ground between counsel that the reference in s 49(1) to the evidence of the convictions not otherwise being excluded by the Act required the Court to be satisfied, before permitting the convictions to be relied upon, that the evidence should not be excluded under s 8(1) on the grounds that the probative value of the evidence was outweighed by its prejudicial effect. This includes a consideration of whether, in terms of the pre-condition for the application of s 49, the evidence the Crown sought to adduce should be excluded under s 8(2) on the grounds that reliance on s 49 would deprive the accused of an effective defence.
Section 8 of the Evidence Act 2006 - probative value
[61] I turned my attention to the nature of the inquiry in a challenge to evidence under s 8 of the Evidence Act, and examined the concepts of “probative value” and “unfairly prejudicial effect” in the context of the particular circumstances of the trial.
[62] It is generally accepted that “probative value” will be incapable of precise definition.24 The Law Commission observed that it would depend on “how strongly the evidence points to the inference it is said to support, and how important the evidence is to the ultimate issues in the trial.”25
[63] In this case, counsel for the Crown characterised the probative value of the convictions it sought to adduce as “extreme”. There is no doubt that, viewed in isolation, Aenoy Bouavong’s convictions for the offending were highly probative. If s 49(1) applied, they would prove conclusively key ingredients of the Crown case regarding each alleged transaction; namely, that the substance in question was methamphetamine and that supplies of that controlled drug occurred on the particular
dates alleged.
24 Mahoney et al The Evidence Act 2006: Act & Analysis (2nd ed, Brookers, Wellington 2010), at
EV8.02
25 Law Commission, Evidence Code and Commentary NZLC R55 Vol 2 at [C58]
[64] As Mr Lance submitted, however, the assessment of probative value must be made in the context of the wider case and the other evidence adduced. That approach is reinforced by the observations of the Court of Appeal in Hudson v R where it was said that the Court need not:26
...examine the probative value and the prejudicial effect of each item in isolation. The application of the balancing test to particular evidence may need to take into account other relevant evidence.
[65] This view reflected the comments of the Supreme Court in Bain v R.27 There
Elias CJ, writing for herself and Blanchard J, observed that:28
...exclusion under s 8 is concerned with whether the connection between the
evidence and proof is “worth the price to be paid by admitting the evidence”.
[66] Also relevant is the comment of McGrath J in Bain at [81]:
The Court must assess the importance and impact of each of the conflicting values so they are given due weight in the scales. If the risk of undue prejudice outweighs probative value, the Court is required to exclude the evidence.
[67] The discussion of “impact” by McGrath J and the passage of the Chief Justice’s judgment cited above both serve to reinforce the necessity of considering probative value in the context of the wider case. Consequently, I considered that the necessary inquiry must relate to the additional probative value which the evidence in question provides to the Crown case – it is the marginal benefit to the Crown in proving its case that must be assessed in the exercise of balancing it against the risk of unfair prejudice to the accused.
[68] While, viewed in isolation, the convictions would be conclusively probative of key issues at trial if admitted under s 49(1), the marginal benefit to the Crown case of adducing the convictions could not be categorised in the same way. As Mr Lance submitted, the evidence offered by the Crown in support of its case, apart from the convictions in question, remains unchanged. All that the Crown sought to do by reference to the convictions was to bolster an arguably strong case by proving
conclusively various matters it would otherwise prove by inference.
26 Hudson v R [2010] NZCA 417 at [44].
27 Bain v R [2009] NZSC 16, [2010] 1 NZLR 1.
28 At [62].
[69] In that sense, therefore, the evidence of the convictions would not have the additional probative value contended for by the Crown.
Section 8 of the Evidence Act 2006 - unfairly prejudicial effect
[70] It has often been pointed out by the Courts that s 8 is not concerned with mere prejudicial effect but rather with unfairly prejudicial effect. As was observed in Bain:29
... the question is not simply whether the evidence is prejudicial; evidence is thought to be prejudicial to the interests of the opposing party or there is no point in calling it. Rather the test is whether the evidence is unfairly prejudicial.
[71] It follows that probative value should be equated with legitimate or fair prejudice to an accused; the s 8 inquiry is the weighing of legitimate prejudice against illegitimate or unfair prejudice. Unfair prejudice can take many forms and, like probative value, is a term incapable of a precise or exhaustive definition. Ultimately, the evaluation of the unfair prejudice relates to the trial judge’s “overriding duty in every case to secure a fair trial”.30
The balancing act under s 8
[72] In balancing probative value against prejudicial effect, it is necessary to consider the requirement under s 8(2) of the Act to “take into account the right of the defendant to offer an effective defence”. It is readily apparent that the purpose of subsection (2) is to emphasise the rights affirmed by s 25 of the New Zealand Bill of Rights Act 1990 ("NZBORA"), which relates to minimum standards of criminal procedure.
[73] The report of the Justice and Electoral Committee on the Evidence Bill recommended that:31
...a provision be inserted in clause 8 requiring the Judge to take into account the right of a defendant to offer an effective defence. This would give more
29 At [95] per Wilson J.
30 R v List [1965] 3 All ER 710, 711.
31 Evidence Bill 2005 (256-2) (Select Committee Report at 3).
emphasis to the rights affirmed in section 25 of the New Zealand Bill of Rights Act 1990. Inserting this provision would ensure that clause 8 can be seen to operate in a way that is fair to all parties in proceedings.
[74] The most relevant of the rights in the context of s 8(2) of the Evidence Act seemed to me to be that contained s 25(f) NZBORA – the right, amongst others, to examine witnesses for the prosecution. In light of the s 25 rights which s 8(2) is said to emphasise, the opportunity to offer an effective defence in the subsection must include the opportunity to test the evidence adduced by the Crown. The presumption of innocence and the principle that a defendant is entitled to put the Crown to the proof of its allegations are fundamental tenets of our criminal justice system.
[75] Offering evidence of previous convictions in the circumstances and manner which the Crown propose would essentially deprive the defendants of their opportunity to test the evidence offered against them on essential elements of the charges. In that sense, it would deprive them of their ability to offer an effective defence of their choosing. That the convictions in this case have come as the result of guilty pleas serves to accentuate the unfair prejudice which would occur – the supposed evidence of guilt would remain untested by any Court.
[76] While the Crown argued, by analogy with the Court of Appeal’s approach in R v Stewart32, that s 8(2) cannot be used to “unravel” the effect of provisions which otherwise admit evidence, I do not think that the same can be said of s 8 as a whole if the proposed use of the section (in this case s 49) exceeds its intended purpose.
[77] I took the view that the question of unfairness needed to be considered against the background that, in the absence of convictions being entered against Aenoy Bouavong, the jury would be given a firm direction that the guilty pleas were inadmissible as evidence against the remaining accused because, as with confessions in a statement to the Police, they were not made in circumstances in which any adverse inference could be drawn against the co-accused. They amounted in effect to hearsay statements, the reliability of which and the reasons for which could not be
tested in the absence of Aenoy Bouavong as a Crown witness.
32 R v Stewart [2008] NZCA 429, [2010] 1 NZLR 197 at [86].
[78] Mr Johnstone was undoubtedly right that an inference could be drawn from a guilty plea that the Crown had a strong case, but it could not be said that the key issues of the nature of the substance involved and the fact of supply had previously been resolved by litigation or that those facts had been established previously to the criminal standard of beyond reasonable doubt.33
[79] It was recognised by the Supreme Court in Hessell v R,34 that a necessary ingredient of our criminal justice system is the provision of an incentive for guilty persons to admit their guilt through a policy of allowing a quantifiable discount in the sentence imposed upon a person who has pleaded guilty to a criminal charge.35
The Court in Hessell emphasised that the policy justification of benefit to the criminal justice system assumes that those who plead guilty are in fact guilty.36
Nevertheless, guilty persons are entitled to rely upon the presumption of innocence and the burden of standard of proof required of the prosecution. For a defendant, therefore, the decision to abandon arguable defences is often the result of an exercise in risk analysis. That this is so is recognised by the statutory process for providing
sentence indications prior to trial.37
[80] A defendant faced with a strong prosecution case, which may include, for example, evidence of a confession made to the Police, may elect to plead guilty prior to trial in order to obtain the benefit of a discounted sentence, rather than challenge the admissibility of the confession at trial, thereby risking a heavier sentence.
[81] Henry Mika and Feng Chih Hsu had been found in possession of methamphetamine; Aenoy Bouavong was found in possession of large sums of cash; the intercepted communications attributed to the three men were strongly probative of their guilt; and Aenoy Bouavong made frank admissions to the Police at the time of his arrest. It is reasonable to assume, from the timing of their guilty pleas, that each of them made an assessment of the likelihood of conviction if they let the cases
against them go to a jury.
33 Compare with the first two of the three policy reasons referred to by the Law Commission at para
233, discussed above at [32].
34 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
35 At [45].
36 At [46].37 Criminal Procedure Act 2011, ss 60-65.
[82] The central question which arose in this case, therefore, was whether it was fair to the remaining accused for the Crown to take advantage of what was essentially a windfall benefit, from the fortuitous guilty pleas entered by the former co-accused, in order to prove its case against the remaining accused in respect of whom the available proof may not have been as compelling.
[83] I turned to consider, therefore, whether the legislature intended s 49 to be used in circumstances where an accused person’s right to offer an effective defence would be abrogated without some countervailing and overriding benefit to the administration of justice.
[84] In coming to my view on this aspect, I gave careful consideration to Wylie J’s acceptance of the Crown’s argument in R v Gui that allowing the Crown to rely on s 49(1) would not be unfair in that it would leave open available defences other than as to the nature of the substance supplied. In Gui, one of the accused, Kathleen Robyn Garrity, pleaded guilty at the start of the trial to a number of specific counts of supplying methamphetamine and convictions were entered against her. It had been alleged that she was the principal offender and that a co-accused, Ulaiasi Pulete, was a secondary party to her offending. Ms Garrity faced trial on other counts to which her pleas of guilty and the subsequent conviction were not relevant.
[85] In that case, counsel for Mr Pulete argued that admitting the convictions for the purpose of relieving the Crown of the burden of proving that the drug supplied was methamphetamine would infringe Mr Pulete’s right to a fair trial preserved by s 25 of the New Zealand Bill of Rights Act 1990. It was also argued that the proposed evidence amounted to a statement by a co-accused which was not admissible by reason of s 27(1) of the Act.
[86] Section 8(2) does not appear to have been relied upon expressly on behalf of Mr Pulete in aid of the fair trial point under s 25 NZBORA. However, there may not be much distinction between the point taken and the argument that depriving Mr Pulete of an arguable ground of defence, by allowing the Crown to prove the nature of the drug supplied by reliance upon Ms Garrity’s guilty pleas and
subsequent convictions, had an unfairly prejudicial effect on the effectiveness of his defence.
[87] Wylie J held that the fact that Ms Garrity supplied methamphetamine on each of the occasions detailed in the counts on which she was convicted, and on which Mr Pulete still faced trial, was part of the res gestae of the offences. He said that the admitted supply of methamphetamine was part of the total narrative and, proof of the supply being one element of the charges, it would be artificial if the jury were not
told of Ms Garrity’s convictions in that regard. 38
[88] The Judge said that Ms Garrity’s convictions were “circumstantial evidence tending to establish that the drug that was being supplied on each occasion was methamphetamine”, and continued:39
... This matter is directly in issue insofar as Mr Pulete is concerned. In my judgment, it is difficult to argue that the resulting prejudice to Mr Pulete is unfair. Evidence of the convictions certainly weakens his position, but to my mind, if the appropriate direction is given to ensure that the jury’s reasoning processes are not skewed by evidence of the convictions, the prejudice cannot be said to be unfair. Indeed, in my view, it would be irrational for Ms Garrity’s convictions to be kept from the jury, simply to preserve a defence which is contradicted by available evidence.
[25] Evidence of the convictions does not deprive Mr Pulete of other defences. First, he can argue that the police’s voice attribution was wrong, and that he was not a party to the telephone conversations and/or texts in which he is said to have aided, abetted or encouraged Ms Garrity. Further, it is open to him to dispute his involvement and role in Ms Garrity’s offending. It will, for example, be open to him to deny that he was a party to Ms Garrity’s offending.
[89] Wylie J distinguished the ruling of Priestley J in R v Nguyen on the grounds that, in Gui, there was a direct connection between the convictions and the remaining charges faced by Mr Pulete40, and that Ms Garrity and Mr Pulete were alleged to have offended in different ways, meaning the Crown would be obliged to prove Mr
Pulete’s knowledge and involvement as a secondary party.41
38 At [23].
39 At [24].
40 At [28].41 At [29].
[90] I considered that it was arguable there is a distinction between the circumstances of Mr Pulete in Gui and the position in which the remaining accused found themselves in the present case. In the passage in Gui42 quoted above, Wylie J considered it to be irrational not to keep Ms Garrity’s convictions from the jury simply to preserve a defence which was contradicted by available evidence. It might be inferred from the Judge’s reference at the beginning of the paragraph to Ms Garrity’s convictions being “circumstantial evidence tending to establish that the drug that was being supplied on each occasion was methamphetamine”, that it was
not the Crown’s intention to rely on s 49(1) but rather to rely on the convictions as raising a rebuttable presumption.43
[91] However, Wylie J’s reference to the preservation of other defences may indicate that he recognised that the jury would be likely to assume proof of the nature of the substance supplied by the mere fact of the convictions, rather than regarding the convictions as evidence going some way the Crown’s proposition on that element of the charges.
[92] In considering whether I was required to exclude the evidence of the convictions under s 8(1) of the Evidence Act, I examined the implications of s 8 in the particular circumstances of the trial. In the present case, the Crown proposed to rely on any convictions entered against former co-accused as conclusive proof of actual supplies and the nature of the substance supplied, rather than as evidence “tending” to prove those facts. From the outset of the trial, however, all elements of each count had been put in issue by the defence and, in the absence of admissions, the Crown was obliged to prove each element of each count, against each accused, beyond reasonable doubt.
[93] In my view, there could be no doubt that it would be highly prejudicial to the accused in this case to close off aspects of the very live issues for decision by the jury. In the particular circumstances of this case, where the strength of the evidence on those issues had not previously been tested and determined, I did not consider it
to be an answer to the prospect of prejudice to the defence to say that defences
42 At [25].
43 Section 49(2)(a) of the Act.
related to other issues (such as proof of the individual accused’s actual involvement, state of knowledge and intent) remained open. To do so would be tantamount to the Crown and the trial judge usurping the right of the accused to decide the nature of the defence case, even if that was no more than simply putting the Crown to proof of all ingredients.
Proposed use of s 49 in this case outside statutory purpose
[94] I did not think that the Crown’s proposed use of s 49 in this case could be characterised as falling within the scope of the statutory purpose of s 49. Where, on the basis of the other evidence admissible at trial against an accused, the jury may have a reasonable doubt about the proof of an essential ingredient of the offence which has been put in issue, it would be wrong in principle for the Crown to be able to rely on the fortuitous windfall of a guilty plea by another person to bolster its case. That is so whether the conviction amounts to conclusive proof under s 49(1) or rebuttable evidence under s 49(2)(a).
[95] In keeping with the views of the English Court of Appeal in O’Connor44 and R v S45, I considered it to be unfairly prejudicial to the accused in this case to permit the Crown to use s 49 to close off aspects of the very live issues for decision by the jury where the strength of the evidence on those issues had not previously been
tested and determined.
[96] Taking that view does not negate the effectiveness of s 49 to meet its legislative purpose, and I did not conclude that s 49 could or should never be relied upon where proof of the commission of an offence is an integral part of a charge. In R v Walker46 the defendant had been convicted of threatening to kill, and acquitted on a charge of unlawful possession of a knife. The jury failed to agree on a charge of kidnapping and the issue on appeal was whether, at the retrial of that charge, the prosecution could lead evidence, under s 49(1), of Walker’s conviction for threatening to kill. The Court of Appeal held that the conviction was relevant and
admissible because it tended to negate any suggestion that the complainant had
44 At n21 above.
45 At n15 above.
46 R v Walker [2007] NZCA 558.
consented to remain in the defendant’s car, where the alleged offences had occurred.
In admitting the evidence, the Court said:47
... it is clear that the threat, or threats, to kill form an integral part of the whole transaction. In our view it forms part of the res gestae. It would be artificial for the jury not to be told of this.
[97] In that case, of course, the issue of Walker’s guilt on the charge of threatening to kill had been fully tested at the first trial and the conviction entered in accordance with the jury’s verdict. Admitting proof of the conviction in such a case is consistent with the first and second of the Law Commission’s suggested policy justifications for s 49, discussed at [32] above.
[98] And there are obviously sound policy reasons for relying upon s 49 to prove an accused’s previous conviction where it is relied upon as propensity evidence;48 where B is charged with being an accessory after the fact to an offence committed by A, the example given by the Law Commission in its discussion of the policy reasons for the section; where it may be intended to prove the commission of an offence by A as part of the proof against B of a charge of attempting to pervert the course of justice;49 or where the Crown may seek to prove A’s conviction for theft of certain property when B subsequently faces a charge of unlawfully receiving the same property from A. There may also be other considerations favouring the use of s 49 where A’s conviction was entered following a guilty verdict at trial and B is being tried separately as a secondary party to A’s offending.
The prospect of prejudice being addressed by a direction to the jury
[99] In ruling against the Crown’s application, I considered whether the identified risk of unfair prejudice could be mitigated by a direction to the jury. I concluded first, that the deprivation of the accused’s right to run their defences could not be overcome by a jury direction. Second, in any event, any direction which I gave would have to include instructions to take the convictions into account not just in
relation to individual co-accused but in relation to separate counts. It would have to
47 At [10].
48 R v K HC Auckland CRI 2008-092-11859, 17 June 2010
49 As in Goffe v R at n10 above.
attempt to dissect the convictions of the three former co-accused appropriately to reflect the intricacies of the particular case being considered.
[100] While the composition of such a direction may be possible, I doubted how easily comprehensible it would be to the jury. I considered, therefore, that a jury direction would not have a sufficiently mitigating effect on the risk of unfair prejudice.
Conclusion – evidence of convictions inadmissible under s 8(1) Evidence Act
2006
[101] For these reasons, I concluded that the price to be paid for the admission of the evidence of convictions under s 49 was too high, and that the proposed evidence of the convictions should be excluded under s 8(1).
Alternative consideration – exceptional circumstances under s 49(2)
[102] In case I should have been wrong to exclude the evidence under s 8(1), I considered whether, if the evidence of the convictions was admissible, exceptional circumstances existed such that the “safety valve” provisions of s 49(2)(a) or (b) could be applied.
[103] The prospect that a co-accused may plead guilty prior to or in the course of a trial at which the guilt of other accused is to be determined by a jury is by no means unusual, particularly in cases of large scale drug dealing involving a number of accused. If “exceptional” is used in s 49(2) as meaning “unusual” or “rare”, then I did not consider this case to come within that meaning. But I did not consider that that was what was intended by the reference to “exceptional circumstances”.
[104] In my view, an exceptional circumstance for the purposes of s 49(2) is one which does not fit within the class of cases in which the legislature intended s 49 to be used, or one where the consequences of applying s 49(1) in the particular instance were not intended.
[105] Having concluded that s 49(1) was not intended to be used in a case where an accused’s guilty plea would be relied on merely to bolster the Crown’s case against co-accused, I regarded the circumstances of the present case to be exceptional.
[106] I turned, therefore, to consider whether an appropriate balance between the Crown’s interests and those of the accused could be achieved by permitting the accused to attempt to rebut the presumption created by evidence of the convictions being admitted under s 49(1).
[107] I concluded that the ability to permit a party to offer evidence tending to disprove the presumption created by the convictions would not appropriately put the proof of the fact of supply or the nature of the substance supplied in issue, in the absence of defence evidence. The presumptive effect of a conviction would be such that merely submitting that it would be open to the jury to conclude that on the admissible evidence other than the convictions the Crown had failed to meet the requisite standard of proof of those elements would be inconsistent with the existence of a presumption.
[108] In the circumstances, I concluded that the only way to permit the accused to put the adequacy of the Crown’s evidence in issue before the jury was to direct that whether Aenoy Bouavong, Henry Mika and Feng Chih Hsu committed the offences to which they had pleaded guilty would be by excluding any reference to their convictions. In those circumstances, I would not have permitted the Crown to rely on the convictions for the purposes sought.
Leave to the Crown to state a case for the Court of Appeal
[109] At the request of counsel for the Crown, I reserve the questions of law arising out of this ruling for the opinion of the Court of Appeal, under s 380(1) of the Crimes Act 1961.
.................................................
Toogood J
4
5
1