R v Cavanagh - [2015] NZHC 1908

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT0 IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-5509

[2015] NZHC 1908

THE QUEEN

v

MICHAEL JOSEPH CAVANAGH SHANNON STEVENS

Hearing: 27 July 2015

Appearances:

D Johnstone for Crown

S J Bonnar QC for Cavanagh A G Speed for Stevens

Judgment:

12 August 2015

JUDGMENT OF WHATA J

[Propensity Evidence Application]

This judgment was delivered by Justice Whata on 12 August 2015 at 2.00 p.m., pursuant to
r 11.5 of the High Court Rules

Solicitors:

Registrar/Deputy Registrar Date:

Meredith Connell, Crown Solicitors, Auckland Copies to:
S J Bonnar QC, Auckland A G Speed, Auckland

R v CAVANAGH AND STEVENS [2015] NZHC 1908 [12 August 2015]

[1] This is my second judgment in relation to an application to adduce propensity evidence of the methamphetamine convictions of Mr Cavanagh and Ms Stevens. In my first judgment,1 I ruled the convictions per se as inadmissible, but foreshadowed that in combination with a broader narrative detailing the facts said to demonstrate the requisite propensity, the convictions may be admissible.

[2] The Crown has now produced a broader narrative that it says provides a proper basis for the admissibility of the conviction evidence. Mr Cavanagh and Ms Stevens oppose the application, maintaining that the prejudicial effect of the evidence outweighs its probative value.

Background

[3] The background to this matter is essayed in my first judgment. Save in one respect, it is not disputed so for ease of reference I repeat it here:

Background

The Crown’s narrative

Operation Illusion and Operation Genoa

[2] In August 2002 the Police terminated Operation Illusion. The investigation involved the manufacture of methamphetamine by Mr Cavanagh, Mr O’Carroll, Ms Stevens and Ms Henry. As a result they were charged and convicted of methamphetamine related charges. They were sentenced to terms of imprisonment. Mr Cavanagh was the last to receive parole on 17 May 2010.

[3] In 2013, a fresh investigation was commenced, Operation Genoa, centred on allegations that Mr Cavanagh, Ms Stevens, Mr O’Carroll and Mr Bowker were involved in the manufacture of methamphetamine and that Victoria Cavanagh, Ms Henry and Mr Ryan were assisting them by laundering money. The 47 charges in these proceedings are the product of Operation Genoa.

[4] The primary charges allege the manufacture of methamphetamine. Given their significance to the present applications, the Crown’s narrative of the offending is repeated here.

1 R v Cavanagh [2015] NZHC 1394.

Charge 2 – Cavanagh, Stevens and Cavanagh

[5] The central allegation is that despite having no known source of income Mr Cavanagh and Victoria Cavanagh amassed cash and other assets in excess of $3,000,000 in less than four years. Ms Stevens is also said to have acquired significant cash and other assets in excess of $200,000.

[6] During this period, Mr Shaw was Ms Stevens’…

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 Cavanagh

Details

AGLC: R v Cavanagh [2015] NZHC 1908
Case: [2015] NZHC 1908
Decision Date: 12 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of The Queen v Michael Joseph Cavanagh and Shannon Stevens involved an application to admit propensity evidence relating to methamphetamine convictions. The Crown sought to introduce evidence of prior methamphetamine convictions of Mr Cavanagh and Ms Stevens, arguing it demonstrated a pattern of behavior relevant to the current charges. Mr Cavanagh and Ms Stevens opposed the application, asserting that the prejudicial effect of such evidence outweighed its probative value.

The legal issue before the court was whether the propensity evidence should be admitted under section 43 of the Evidence Act 2006, which requires a balance between the probative value of the evidence and the risk of unfair prejudice. The court had to determine if the detailed narrative of prior offending provided sufficient context to make the prior convictions probative without being unfairly prejudicial.

Justice Whata ruled that while the detailed narrative of the prior offending provided some context, the probative value of the conviction evidence was outweighed by the risk of unfair prejudice in relation to Charge 2. The court found that the evidence was necessary to fill a gap in the Crown's case but was insufficiently linked to the current charges to avoid the risk of improper reasoning by the jury. However, for charges 12, 17, and 35 relating to Ms Stevens, the court found the evidence was sufficiently probative and not disproportionately prejudicial. The court decided that the conviction evidence was admissible in respect of these charges but inadmissible for Charge 2. Directions to the jury would mitigate any prejudicial effect on other charges.

The final orders were that the conviction evidence was inadmissible in relation to Charge 2 but admissible for charges 12, 17, and 35. The court reserved its position on the effect of the conviction evidence in terms of the remaining charges against Mr Cavanagh, noting that severance might be considered if necessary.

Orders