R v Chou HC Auckland CRI 2007-004-8340
[2008] NZHC 2352
•28 May 2008
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR ON OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-004-8340
THE QUEEN
v
TSUNG HUI CHOU
Hearing: 28 May 2008
Counsel: C Gordon for Crown
M Kan for Accused
Judgment: 28 May 2008
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, Auckland
Counsel:
M A Edgar, AucklandM Kan, Auckland
R V CHOU HC AK CRI 2007-004-8340 28 May 2008
Introduction
[1] Tsung Hui Chou has been charged with possession of the Class A controlled drug, Methamphetamine, for the purpose of supply. The trial is due to begin on 21
July 2008, with an estimated duration of five days.
[2] Today, I have heard Mr Chou’s application that the Crown disclose to him the number and precise locations of tracking devices used to monitor a controlled delivery of a package known to contain drugs. The Crown oppose the application on public interest immunity grounds.
The Crown case
[3] The Crown case is that, on 19 April 2007, a Customs Officer working at Auckland International Airport examined various postal articles, including a brown coloured cardboard package which had been received from China through the Chinese Express courier system. That package was capable of being monitored electronically, by both consignor and consignee, through a programme known as the Electronic Monitoring System which was accessible through the Internet.
[4] The unique electronic monitoring system consignment note evidenced that the package had been sent from China on 12 April 2007 and that the intended consignee was Mr Wang of Auckland. The consignment note described its content as “towel” and “book”.
[5] On examination, the postal article was found to contain two silver coloured electric hairdryers and packaging material. A white crystalline powder was found inside one of the hairdryers. When the dryers were dismantled, it became apparent that electrical components of each hairdryer had been replaced by a metallic cylindrical item. The two cylinders each contained a single plastic bag containing a white crystalline substance.
[6] Initial testing indicated that the powder was Methamphetamine. Its estimated total weight was 280 grams.
[7] The article was repacked. However, only 10 grams of Methamphetamine were left inside the package. The balance was substituted with rock salt. This was done in anticipation of a controlled delivery of the package being undertaken in an endeavour to identify the intended recipient. The Crown accept that the controlled delivery was monitored through the use of a tracking device or devices.
[8] The delivery was effected by a Customs Officer, posing as a courier. The item was delivered to an address in Three Kings at about 8.30am on 23 April 2007. The person taking delivery has not been identified, but has been described as an “Asian male”.
[9] At 8.35am the package was placed in the boot of a Nissan Primera motor vehicle by the person identified as receiving the package at the Three Kings address. At 8.40am the vehicle was seen on Duke Street, being driven by an Asian male around the Avondale area.
[10] At 8.58am the vehicle entered the driveway of a property shared by 16-20
Blockhouse Bay Road, Blockhouse Bay. The vehicle left the Blockhouse Bay property at 9.10am. At that stage, the Crown case will be that the package was still in the vicinity of the Blockhouse Bay residence, to which it had been taken.
[11] At 8.10pm the vehicle returned and was seen leaving the Blockhouse Bay driveway, going into Great North Road. Again, the Crown confirm that the package was inside the vehicle. There were two males, identified as of Asian origin, in the vehicle.
[12] At 8.33pm the vehicle was seen parked behind a building on Lorne Street in
Auckland. Only the driver was seen. The driver’s door was open.
[13] Around that time the signal from the device or devices was lost.
[14] The Crown will call evidence of visual surveillance demonstrating that the vehicle was seen on Mayoral Drive heading towards Hobson Street at about 8.39pm with two occupants of Asian origin.
[15] At 10.19pm a signal was picked up on a green Range Rover motor vehicle, on Mayoral Drive, which was also being driven by a male Asian. That vehicle was stopped by Police on Cook Street.
[16] The power to search on an unwarranted basis, under s 18 of the Misuse of Drugs Act 1975, was invoked. Both Mr Chou and the vehicle were searched. Plastic bags used to carry the salt along with the hairdryers and other packaging items were located. However, the outer wrapping and the 10 grams of Methamphetamine left in the article were missing and have not been recovered.
Competing submissions
[17] Mr Kan, for Mr Chou, submits that this is a case in which disclosure of the location and the number of tracking devices used ought to be made so that Mr Chou’s advisors can explore the possibility that an unknown person or persons may have opened the package at times when it was not under the control of law enforcement agencies.
[18] It is accepted that cases such as R v McFarlane [1992] 1 NZLR 495 (HC) and R v Beri (2002) 20 CRNZ 170 (CA), have held that public interest immunity operates to prevent disclosure of listening devices or the location of video surveillance cameras. However, in this case, Mr Kan he submits that fair trial rights require disclosure of the information sought, notwithstanding those authorities.
[19] Ms Gordon, for the Crown, submits that the public interest in investigating and detecting serious crime justifies withholding the information sought. Reliance was placed on my judgment in R v Baird (High Court Hamilton, CRI 2006-090-
4626, 6 July 2006) to support the proposition that investigative techniques can fall under the umbrella of public interest immunity.
Analysis
[20] In my view, the issue in this case is narrow. It is whether the undoubted interest of the State in maintaining secrecy about investigative techniques designed to detect serious criminal offending and to apprehend those responsible for it are outweighed by the accused’s fair trial rights.
[21] The first step is to determine, on the evidence that will be adduced at trial, how Mr Chou’s ability to advance a defence would be enhanced by disclosure of the information sought. If it were reasonably possible that his defence could be advanced through disclosure, the second question would be whether disclosure was required now or might the decision better be made by the trial Judge, during the course of the trial.
[22] On the latter topic I commented, in Baird, as follows:
[80] A final point concerns the possibility of information withheld under public interest privilege becoming, unexpectedly, relevant to an issue at trial. The only means of solving that problem is for counsel to raise, during the course of the trial, any issue relating to prior investigations or surveillance that may arise. At that point the presiding Judge must consider afresh whether public interest privilege should be maintained. The Court is entitled, in those circumstances, to expect counsel for the Crown to advise the Court immediately, that such an issue has become apparent during the course of the trial. ….
[23] The need to balance fair trial considerations on disclosure applications of this type was recognised by Williams J, in R v Allison (High Court, Auckland, T0024811, 13 February 2003). In dealing with an issue of disclosure relating to the location of video surveillance cameras, Williams J said:
[38] In England the exclusionary rule in relation to disclosure of the location of observation posts now seems well established (Archbold 2002 para 12-37, p.1246-1247), Howard et al Phipson on Evidence (15th Ed) 2000 para 24-11 p615, para 24-24 p622-623) though it seems to be subject to the exceptions that disclosure can be ordered if an accused can show that it will assist in establishing innocence or avoid a miscarriage of justice and in such a case the “balance comes down resoundingly in favour of disclosing the information” (R. v Hennnessy (1978) 68 Cr App R 419, 425, R v Keane [1994] 2 All ER 478, 484). In carrying out that balancing exercise the Judge may look at the documents (R. v K (1992) 97 Cr App R 342, 346; Keane at
483). The exception is more restricted in Canada (R v Leipert [1997] 1 SCR
281).
[39] The question has not yet been much debated in New Zealand. In R v McFarlane (1991) 7 CRNZ 358, 362-5 Heron J in a pre-trial hearing disallowed cross-examination as to the precise location of a listening device installed pursuant to an interception warrant relying principally on D, Johnson and Rankine. In R v Robertson & Ors (15 November 1999, HC Auckland, T991248) Potter J held that as a result of public interest immunity, photographs taken by video surveillance cameras were not producible. The learned Judge summarised the pertinent principles as (pp4-
5) :
“1. A claim by the Crown to immunity on public interest grounds must be supported by evidence.
2. Once the Crown has established to the satisfaction of the Court that a case for public interest immunity has been made out, then the onus is on the accused to satisfy the Court that good reason exists for disclosing the information the Crown seeks to protect.
3. The real issue is whether there is a countervailing interest that would give rise to a miscarriage of justice, if evidence were inhibited by the non- disclosure of the evidence sought to be protected.
4. The Court has a discretion to order disclosure if it is deemed necessary to prevent a miscarriage of justice, that is if exclusion of the evidence would lead to an unfair trial or a verdict that was either unsafe or unsatisfactory.”
I adopt that approach. It reflects my own assessment of this issue in Baird.
[24] Mr Kan submits that Mr Chou’s defence could be advanced more cogently if disclosure were made. The primary proposition seems to be that, if knowledge of the number of devices used and the location at which they were placed were known, it would be possible to address the jury on a greater likelihood of some person other than Mr Chou being the true recipient and subsequently making the package available to an innocent Mr Chou to take elsewhere.
[25] As a result of an interchange between Mr Kan and myself, during his submissions, it became clear to me that inferences of the type Mr Kan sought to advance could equally be drawn from the evidence as it currently stands. The evidence will establish that a tracking device or devices were used. It will also establish that visual surveillance was carried out. The evidence will disclose that the location of the package could not be identified for a significant period of time. The evidence will also indicate that the package appeared to have been moved to and from a number of locations.
[26] As Mr Chou was not identified as the original recipient of the controlled delivery, an inference that he was not responsible for removing the Methamphetamine from the package would be open to the defence to raise, notwithstanding the absence of information relating to the location and number of devices used.
Result
[27] In those circumstances, I consider there is no basis to argue, at this stage, that fair trial rights are compromised if disclosure were not made. It is possible that something unexpected will arise at trial. If that were to happen, it is open to counsel for Mr Chou to raise this issue again with the trial Judge. At that time, issues of disclosure can be considered afresh, on the basis of the evidence that has actually been adduced at trial.
[28] The application for disclosure is dismissed. I make a declaration that public interest immunity attaches to the information requested by Mr Chou and that the
Crown is not obliged to supply it to counsel for the defence.
P R Heath J
0
0
0