R v Britton - [2017] NZHC 883

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2015-088-003515 [2017] NZHC 883

THE QUEEN

v

KATRINA ANNE BRITTON TONY MICHAEL BRITTON

Hearing: 2 May 2017

Counsel:

N J Dore for Crown
M Edgar for Mrs Britton
A Maxwell-Scott for Mr Britton

Judgment:

4 May 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 4 May 2017 at 11 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Whangarei
A Maxwell-Scott, Barrister, Auckland
M Edgar, Barrister, Auckland

R v BRITTON [2017] NZHC 883 [4 May 2017]

[1] The defendants Katrina Britton and Tony Britton are facing trial on joint charges, together with others, of manufacturing the Class A controlled drug methamphetamine,1 or alternatively conspiracy to manufacture methamphetamine.2
There are additional charges as well which do not presently require consideration.3

[2] The Brittons were originally charged with nine other defendants, all of whom have pleaded guilty to charges involving the illegal distribution of methamphetamine for commercial purposes and other offences under the Misuse of Drugs Act 1975.

[3] The Crown has intercepted electronic communications which, in the Crown’s view, go to prove the charges the Brittons face. In relation to the Brittons those communications are hearsay evidence.

[4] Section 22 of the Evidence Act governs the general admission of hearsay statements in criminal proceedings.

[5] Section 27 of the Evidence Act governs defendants’ and co-defendants’ statements offered in evidence by the prosecution. Section 27(1) reflects the “general common law principle that one defendant’s statement cannot be used to implicate another defendant in the same proceeding”.4

27 Defendants’ statements offered by prosecution

(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.

[6] Accordingly, if the Crown wishes to use a statement made by a co-defendant it must pass through s 22A. There is no alternative route to admission.

1      Misuse of Drugs Act 1975, ss 6(1)(b) and 6(2)(a).
2      Misuse of Drugs Act 1975, s 6(2A)(a).
3      They are also charged with possession of materials (s 12A(2)(a) of the Misuse of Drugs Act
1975); permitting premises to be used for the commission of an offence against the Misuse of Drugs Act (s 12(1) of the Misuse of Drugs Act); and Katrina Britton is separately charged with possession of materials, namely acetone, to be used in the commission of the manufacture of methamphetamine (s 12A(2)(a) of the Misuse of Drugs Act 1975).
4      Law Commission “The 2013 Review of the Evidence Act 2006” (NZLC R127, 2013) at [3.90].

[7] In reliance on s 22A, the Crown sought to use hearsay statements made by Mrs Britton against Mr Britton, on the grounds she was engaged in the joint enterprise of manufacturing methamphetamine together with Mr Britton. The Crown also relied on s 22A in seeking to admit text messages sent by Mr Hampton…

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 Britton

Details

AGLC: R v Britton [2017] NZHC 883
Case: [2017] NZHC 883
Decision Date: 4 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Britton concerns the defendants Katrina and Tony Britton, who are facing charges of manufacturing and conspiracy to manufacture the Class A controlled drug methamphetamine. The Crown sought to introduce hearsay evidence, including intercepted electronic communications, to support the charges. The central legal issue was whether the hearsay statements could be admitted under section 22A of the Evidence Act, which governs the admissibility of hearsay statements in criminal proceedings when there is a conspiracy or joint enterprise. The court examined whether the statements were made in furtherance of the alleged conspiracy or joint enterprise and whether there was reasonable evidence of the Brittons' membership in such an enterprise.

The court found that the hearsay statements by Mrs Britton, which were made after the alleged manufacturing had ended, could not be admitted against Mr Britton as they did not meet the requirements of section 22A. Additionally, the text messages sent by Mr Hampton to Mr Britton were not made in furtherance of the conspiracy or joint enterprise. The court also found that there was insufficient evidence to establish that Mr Britton and Mr Hampton were co-conspirators. Consequently, the application to admit the hearsay statements under section 101 of the Criminal Procedure Act 2011 was dismissed.

Orders