R v Britton
[2017] NZHC 883
•4 May 2017
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 BrittonJudgment:
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 to Mr Britton in evidence against both Mr and Mrs Britton.
[8] Section 22A provides:
22A Admissibility of hearsay statement against defendant
In a criminal proceeding, a hearsay statement is admissible against a defendant if—
(a) there is reasonable evidence of a conspiracy or joint enterprise; and
(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and
(c) the hearsay statement was made in furtherance of the conspiracy or joint enterprise.
[9] Section 22A intentionally codifies the requirements set out in R v Messenger.5 The Court of Appeal’s comments in that case therefore remain relevant in interpreting s 22A.
Approach to application
[10] Initially the Crown contended the conspiracy or joint enterprise to manufacture methamphetamine comprised Mr and Mrs Britton, Craig Hampton, Regimen Martin and Dillon Finlayson, who is the step-son of Mr Britton. Except for Mr Hampton, the other persons were all co-defendants in the criminal proceeding.6
[11] However, during the course of presenting its case the Crown acknowledged that the only evidence to link Mr Martin, Mr Finlayson and the Brittons with the alleged conspiracy or joint enterprise was that to be found in the hearsay statements
for which the Crown sought admission under s 22A. The Crown recognised this
5 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [11].
6 Mr Martin and Mr Finlayson have pleaded guilty to some of the charges they faced in this proceeding, but others remain outstanding. They are to be sentenced in June 2016 when it is likely that on the outstanding charges the Crown will offer no evidence. Technically on those charges they remain co-defendants but they will not be appearing in the trial of the Brittons.
evidence could not constitute reasonable evidence of a conspiracy or joint enterprise, or reasonable evidence of the Brittons being members thereof. There was no other evidence to this effect. Accordingly, the statements of Mr Martin and Mr Finlayson are not admissible against the Brittons.
[12] The Crown then based its case on an allegation of conspiracy or joint enterprise involving Mr and Mrs Britton and Mr Hampton.
[13] By a minute dated 3 May 2017 I queried why the Crown was relying on s 22A for the admission of Mr Hampton’s hearsay statement when he was not a co- defendant. It seemed to me that because Mr Hampton was not a co-defendant in this proceeding he was compellable as a witness to give evidence. If for some reason he was not available s 22 of the Evidence Act seemed to me to be the relevant provision under which to determine the admissibility of his evidence. However, all trial counsel were of the view I should proceed to determine the admissibility of Mr Hampton’s hearsay evidence in accordance with s 22A. Counsel referred me to
Kayrouz v R.7 I have read the decision but do not understand it to uphold the idea
that hearsay statements by persons who are not co-defendants in a criminal proceeding can be admitted as evidence against the defendants in that proceeding pursuant to s 22A.
[14] I acknowledge that s 22A is not expressly limited to hearsay statements by co-defendants in a proceeding. On its face the provision would also cover persons who are conspirators or members of a joint enterprise but against whom no charges have been laid. However, hearsay statements by such persons do not appear to me to be caught by s 27. Accordingly, they can also be considered for admission under s 22. Nevertheless, given the argument I have heard from counsel and their reliance on the application of s 22A, I will consider the admission of the evidence by that
route.
7 Kayrouz v R [2014] NZCA 139 at [21]–[23].
Section 22A requirements
Hearsay statement
[15] The first requirement that emerges from the wording of s 22A itself (and its title) is that the statement must be a “hearsay statement”, which is defined in the Evidence Act as follows:8
hearsay statement means a statement that—
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents.
[16] There is no dispute that the subject electronic communications are hearsay statements in relation to the Brittons.
Reasonable evidence of a conspiracy or joint enterprise
[17] The hearsay statement must constitute reasonable evidence of a conspiracy or joint enterprise.
[18] The Court of Appeal in Messenger explained that the phrase “reasonable evidence” connotes “evidence which of itself would not sustain a verdict of guilt but which is of such a nature that the Judge considers it safe to admit the evidence of a co-conspirator.”9
[19] The Crown need not prove every detail of the conspiracy for the statements of co-conspirators to be admissible; it must simply show in general terms what the conspirators (including the defendant) had the common intention of achieving.10
This must be done independently of the hearsay evidence.11
8 Section 4(1).
9 At [12].
10 R v Messenger, above n 5, at [14]; see also R v Morris (Lee) [2001] 3 NZLR 759 (CA) at [20].
11 See Buckton v R [1985] 2 NZLR 257 (CA); see also R v Messenger, above n 5, at [13].
Reasonable evidence that the defendant was a member of the conspiracy
[20] The defendant’s membership in the conspiracy or joint enterprise must be proved independently of statements made in the defendant’s absence.12 Items of circumstantial evidence, including evidence identifying defendants as the individual engaging in cellphone communications with other conspirators, can be sufficient to satisfy this requirement.13
Hearsay statement was made in furtherance of the conspiracy
[21] The hearsay statement must have been made in furtherance of the conspiracy or joint enterprise. It is necessary to take a “realistic and commonsense” approach to this requirement.14 Statements made during the conspiracy will be admissible when they are “part of the natural process of making the arrangements to carry out the conspiracy”, or when they “[show] the enterprise in operation”.15 However:16
… merely incidental statements even if they refer to the conspiracy or aspects of it are not admissible if they are not intended to advance or further the common purpose of the conspiracy.
[22] Also, the common purpose must be continuing at the time of the act or statement:17
A statement recording that what has been done has been completed, either successfully or, as in this case, unsuccessfully, is not within the scope of the principle …
Applying the s 22A requirements
Mrs Britton’s telephone conversation
[23] Regarding Mrs Britton the Crown has a transcript of a telephone conversation
Mrs Britton had with her daughters while she was remanded in custody. That
12 R v Messenger, above n 5, at [18]; and R v Morris (Lee), above n 10, at [18]. Most recently, see
Kayrouz v R, above n 7, at [23].
13 See Wu v R [2011] NZCA 358, [2011] 3 NZLR 764.
14 Kayrouz v R, above n 7, at [35].
15 Kayrouz v R, above n 7, at [35].
16 Kayrouz v R, above n 7, at [35].
17 Goffe v R [2011] NZCA 186, [2011] 2 NZLR 771 at [50].
telephone conversation occurred on 7 February 2016. In the telephone conversation Mrs Britton says to her daughters on more than one occasion that swabs the Police took from the Brittons’ house all came back negative.18 At one point Mrs Britton says:
K BRITTON But because the house came back clear it’ll be way easier for
me to get custody of you guys back.
FAITH: Okay.
K BRITTON And I knew it would, you know how anal mummy is on cleaning.
She then moves on to speaking to another daughter whom she again refers to the good news about the swabs. Later she says:
K BRITTON: Yeah but there was never anything in the house anyway so. TEGAN Yeah, yeah, yeah
KBRITTON But um that’s really good news so every single swab they took at the place were all negative. Everywhere. Even in the shed.
TEGAN: Oh that’s so good.
K BRITTON: Yeah its excellent eh. TEGAN: Even in the shed (laughs).
K BRITTON: Yes, yes. Yeah so mummy was really happy to hear that and
I don’t know if dad knows yet but um my lawyer, but.
TEGAN: You used to always, you always cleaned everywhere all the time.
K BRITTON: I know, I know, I’m such a good, lucky mummy with such a
good cleaner.
She then moves on to talking about her daughter’s schooling.
[24] The Crown contends that the above conversations inferentially point to Mrs Britton being part of a conspiracy or joint enterprise, which when taken together with other evidence constitutes reasonable evidence of her membership of a
conspiracy or joint enterprise to manufacture methamphetamine.
18 This is actually incorrect. Traces of methamphetamine were found.
[25] The transcript of Mrs Britton’s telephone conversation with her daughters is direct evidence against her, which is readily admissible against her. The Crown also wants to rely on this evidence to prove the charge against Mr Britton. The Crown sees this evidence as proving that some time before the Brittons were arrested in December 2015 Mrs Britton gave the house and shed a thorough cleaning to remove traces of methamphetamine, which the Crown would say were present by reason of Mr Britton’s manufacturing. The Crown relies on this inferential reasoning as a piece of circumstantial evidence to prove manufacturing occurred between 19 and 25
November 2015.
[26] One of the difficulties the Crown faces with the admission of Mrs Britton’s statement through s 22A is that it is not a statement made in furtherance of the conspiracy or joint enterprise. By the time she made the statement the common purpose of the conspiracy/joint enterprise, being the manufacture of methamphetamine, had ended. The Crown case is the manufacturing was completed by 25 November 2015, whereas the telephone conversation took place on 7 February
2016. So by the time Mrs Britton was speaking to her daughters the manufacturing had allegedly taken place some months earlier. Accordingly, this evidence cannot meet the third requirement of s 22A. For that reason alone I find it cannot be led as evidence against Mr Britton.
Text messages
[27] I also find the text messages sent by Mr Hampton, which the Crown seeks to rely on to prove inferentially that the manufacture of methamphetamine was completed by 25 November, fail the third requirement of s 22A. The first text message was sent to Mr Britton on 24 November 2015 at 21:37 and reads:
HAMPTON: At your gate bro.
The next text sent at 22:28 on 24 November 2015 from Mr Hampton to Mr Britton reads:
HAMPTON: Not the only one here now bro … want me to walk up?
[28] On 25 November 2015 at midnight Mr Hampton and the vehicle he was driving was stopped by Police north of Whangarei. When the vehicle was searched it was found to contain methamphetamine. This is not disputed.
[29] The Crown seeks to rely on the text messages Mr Hampton sent to Mr Britton as well as the fact Mr Hampton was later found in possession of methamphetamine to prove inferentially that the manufacture of methamphetamine was completed by
24 November 2015. The Crown says that Mr Hampton went to the property on 24
November 2015 to collect methamphetamine from Mr Britton. Because the Brittons’ property has a long driveway of approximately 800 metres and a gate that is usually locked, the Crown says the text messages were sent by Mr Hampton to notify Mr Britton he was there and that he had come to get methamphetamine. On the Crown’s view one can infer the methamphetamine was manufactured by Mr Britton because of the closeness in time between Mr Hampton being at Mr Britton’s gate and when Mr Hampton was stopped by the Police.
[30] The Crown’s case hinges on a number of inferences being drawn from the fact Mr Hampton texted Mr Britton in the evening of 24 November 2015 and Mr Hampton was later found at midnight on 25 November 2015 to be in possession of a quantity of methamphetamine. Insofar as the Crown seeks to have those text messages understood to represent Mr Hampton going to Mr Britton’s property to obtain methamphetamine from him, the statements viewed in this light cannot be seen as statements made in furtherance of the common purpose of a conspiracy/joint enterprise to manufacture methamphetamine. If Mr Hampton was at the Brittons’ property to collect methamphetamine this implies the manufacturing was complete. In that case the text messages could not be made in furtherance of the common purpose, because by then it was at an end. Alternatively, if Mr Hampton were simply visiting the property at a time before the manufacturing was complete, there is nothing in their meaning to suggest either directly or indirectly that they were made to further the conspiracy or joint enterprise.
[31] Accordingly, I am satisfied that even if Mr Hampton was part of a conspiracy or joint enterprise which included Mr and Mrs Britton, there is nothing in the two
hearsay statements in the subject text messages that can be understood to meet the third requirement of s 22A.
[32] As stated earlier I do not see why the Crown needs to rely on s 22A of the Evidence Act for the admission of the hearsay evidence from Mr Hampton. He is not a co-defendant and accordingly s 27 of the Evidence Act does not govern the admission of hearsay statements by him. The appropriate provision seems to me to be s 22 which deals generally with the admission of hearsay evidence in criminal proceedings. Because the Crown has not approached the matter in this way I have not considered the application of s 22 to the text messages.
Additional arguments
[33] The findings I have made would be enough to dispose of the Crown’s application. However, I will also deal with the other arguments relating to whether Mr and Mrs Britton were co-conspirators or involved in a common enterprise to manufacture methamphetamine.
[34] The Crown acknowledges that it has no evidence of specific acts of
Mr Britton that it relies upon to prove manufacture.
[35] Regarding Mrs Britton, at the request of Mr Britton she purchased acetone on
24 November 2015. They both accept this.
[36] A PH meter was found in a vehicle registered in Mrs Britton’s name that was on the Brittons’ property. Also in the vehicle was a set of digital scales and a digital thermometer. The items found in the vehicle had traces of methamphetamine.
[37] Swabs from the Brittons’ house and the shed on their property showed positive for methamphetamine, although the level of methamphetamine found was consistent with either smoking or manufacturing. There is no evidence to show the time from which that methamphetamine was present.
[38] There is Mr Hampton, who was separately charged, has pleaded guilty to a number of possession of methamphetamine for supply charges. These result from
when he was stopped at midnight on 25 November 2015 north of Whangarei and found in possession of the subject methamphetamine, as well as text messages sent to Mr Britton’s cellphone.
[39] Regarding Mrs Britton, the Crown argues the above constitutes reasonable evidence she was a conspirator or part of a joint enterprise in the manufacture of methamphetamine. I accept that there is circumstantial evidence consistent with methamphetamine being manufactured at the property, but there is nothing to show when that may have occurred. Moreover, manufacturing is not the only plausible explanation for the presence of methamphetamine.
[40] When interviewed by police, Mrs Britton said she bought acetone because Mr Britton used it as part of his car repair business. There is evidence he repairs cars at the property. Acetone is a legal product available at hardware stores. It is used in the manufacture of methamphetamine but it has accepted legal uses as well, one of which is as a cleaner.
[41] Mrs Britton makes no direct admissions in the telephone conversation with her daughters.
[42] The items found in the vehicle registered in her name can be linked to her. However, others lived on the property including Mr Finlayson who was a co- defendant and has now been convicted of possession of methamphetamine for supply. There is no evidence the vehicle is locked, which leaves open the possibility of other family members having access to the vehicle.
[43] The evidence the Crown relies upon to show Mrs Britton is a member of a conspiracy is circumstantial. On the Crown’s argument the evidence supports the inference Mrs Britton is a conspirator or part of a joint enterprise. However, it is equally plausible that she purchased acetone for Mr Britton for a legitimate purpose and has subsequently cleaned up after his offending, either for the sake of herself and others occupying the property or because she is an accessory after the fact.19 There
is no evidence to suggest that the inferences the Crown would have drawn from the
19 Properties used for the manufacture of methamphetamine are recognised health risks.
circumstances are more plausible than inferences which do not lead to the conclusion that Mrs Britton is a co-conspirator or part of a joint enterprise to manufacture methamphetamine. The items in the vehicle point to a connection with her, but that connection is weakened by the presence of others on the property who were also involved in methamphetamine offending, in particular Mr Finlayson who has pleaded guilty to possession for supply charges. The conclusions for which the Crown argues can only be reached by speculation.
[44] Accordingly, there appears to me to be no reasonable evidence of a conspiracy or joint enterprise of which Mrs Britton was a member. However, in view of the earlier finding I have made regarding the third requirement of s 22A it is not necessary for me to determine this point.
[45] I now turn to the analysis of whether Mr Britton was in a conspiracy or joint enterprise with Mr Hampton. The evidence the Crown relies on to prove this conspiracy or joint enterprise is again Mr Britton’s request for acetone; the finding of the PH meter, digital scales and digital thermometer; the swabs taken from the house and shed which showed positive for methamphetamine; the fact Mr Hampton was stopped at midnight on 25 November north of Whangarei with methamphetamine; and direct phone calls that Mr Britton had with Mr Hampton.
[46] There are also conversations which occurred on 19 November 2015 when at
13:41 Mr Hampton telephoned Mr Britton and after some discussion Mr Hampton said:
HAMPTON: Um I’m I’m nearly I’m sort just about ready to um yeah.
BRITTON: Oh yeah, sweet. HAMPTON: Are we all good to go? BRITTON: Yeah.
HAMPTON: Oh yeah, that’s good. So um I’ll flick you a text later later on today. I’m waiting, just waiting on fuckin two people really.
[47] The next telephone conversation was on 21 November 2015 at 18:20 when after some pleasantries Mr Hampton said:
HAMPTON: Yeah okay I’ve yeah I just fuckin been hanging back bro for the last day and a bit bro fuckin. Oh I’ll tell you when I get there. Yeah yeah we all good we all good to carry on.
BRITTON: Yeah.
HAMPTON: Okay mate. Alright um I just need some gas and that I’ll
fuckin be on my way. Alright?
BRITTON: Sweet as mate.
[48] On 23 November 2015 at 21:27 there is a further telephone conversation:
HAMPTON: How’s things?
BRITTON: Good, how about yourself? HAMPTON: Oh yeah, finished your job? BRITTON: Whats that. Na na. HAMPTON: Did you finished no not. BRITTON: Um yet yip.
HAMPTON: Ah?
BRITTON: Yeah yeah I finished doing that job.
[49] Later in the conversation Mr Britton says:
BRITTON: Finished work and having dinner and everything now. Tony. HAMPTON: Yeah.
BRITTON: Yeah he might not hae. Yeah. Yeah um um finished work?
HAMPTON: Yeah well just about. I just trying to get an update so I know know what to do.
BRITTON: Oh yeah, um yip I’ll be done by tomorrow, I’m just waiting
for something. HAMPTON: Yeah, tomorrow? BRITTON: Yeah.
[50] Later there is a discussion about cars with Mr Britton saying:
BRITTON: Yeah cause you got no wheels ah. Have you got wheels? HAMPTON: Yeah yeah I have.
BRITTON: Oh have you got that car ah. Did you buy it? HAMPTON: Yeah bro.
BRITTON: Sweet, sweet. Oh yeah. In the morning if you want. HAMPTON: Okay mate. Sweet as.
BRITTON: I’ll just waiting bloody um this car part to turn up this part to
turn up.
HAMPTON: Yeah okay mate. BRITTON: Put the car together.
HAMPTON: Yeah and find the key to the gate. BRITTON: Yeah, yeah I’ll give him a ring now. HAMPTON: Okay sweet as ah. Oh okay mate sweet as.
BRITTON: I probably could finish the car (inaudible) car part supposed to come today.
HAMPTON: Yeah.
BRITTON: Oh soon. But um.
[51] There are some further exchanges and the conversation ends. The Crown says that these conversations are coded discussions about when Mr Britton will be manufacturing the methamphetamine.
[52] The Crown contends that the above circumstances support the inference that Mr Britton was involved in a conspiracy or joint enterprise with Mr Hampton. The Crown also conceded there was not enough for Mr Hampton to be charged as a conspirator to manufacture methamphetamine.
[53] The circumstantial evidence the Crown relies upon, taken at its highest, is equally consistent with Mr Britton being involved in the manufacture of methamphetamine and Mr Hampton being a dealer who is looking to purchase methamphetamine from Mr Britton.
[54] The Crown could not point to any evidence to suggest that rather than Mr Hampton being a methamphetamine dealer seeking to buy methamphetamine from Mr Britton, Mr Hampton was himself a co-conspirator in the manufacture of
this product. Accordingly, there is no reasonable evidence of a conspiracy or a joint enterprise, or reasonable evidence that Mr Hampton and Mr Britton were members of such a conspiracy or joint enterprise. For this reason the hearsay statements by Mr Hampton cannot be admitted under s 22A to be used as evidence against Mr Britton.
Summary
[55] In relation to Mrs Britton, the transcript of the telephone conversation between Mrs Britton and her daughters is admissible under s 27(1) of the Evidence Act as a statement by a defendant offered in evidence by the prosecution against that defendant.
[56] In relation to Mr Britton, the transcript of the telephone conversation between Mrs Britton and her daughters is a hearsay statement and therefore barred by s 27(1) of the Evidence Act. It does not meet the requirements of s 22A.
[57] The Crown’s concession that Mr Finlayson and Mr Martin are not co- conspirators or part of a joint enterprise involving Mr Britton means hearsay statements by them are not admissible against Mr Britton.
[58] Mr Hampton’s statements in the text messages are hearsay which does not satisfy the requirements of s 22A.
Result
[59] The application to admit hearsay statements under s 101 of the Criminal
Procedure Act 2011 is dismissed.
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