R v Darwish HC Auckland CRI 2003-004-044644
[2005] NZHC 489
•25 May 2005
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2003-004-044644
THE QUEEN
v
AHMED MOHAMMED DARWISH AND
SUSAN MARION KING
Hearing: 17 February 2005, 7 April 2005
Appearances: M S Gibson for the Accused
K Raftery for Crown 17 February 2005, F Pilditch & K Gray 7 April
2005
Judgment: 25 May 2005
JUDGMENT OF WINKELMANN J
This judgment was delivered by me at 10 am on 25 May 2005, pursuant to Rule540(4) of the High
Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Meredith Connell P O Box 2213 Auckland for the Crown
M S Gibson 34 London Street St Mary’s Bay Auckland for the Accused
R V DARWISH And Ors HC AK CRI-2003-004-044644 [25 May 2005]
Table of Contents
Para No Introduction [1] The applications before the Court [7] Section 347 application – general principles [12] Section 347 application – Counts 1 and 2 [13]
Some general observations about the Courts criminal jurisdiction [18]
Crown’s first submission: enough evidence to go to jury [23]
Crown’s second submission: s 12C can apply to parties acting
within New Zealand [24] Section 12C and s 7 of the Crimes Act [33] Common law [37] Summary [44]
Section 347 application – Count 3 [46] Section 347 application – Count 4 [55] Section 347 application – Counts 5 and 6 [63] Crown’s s 344A application – intercepted communications [65] Challenge to admissibility on ground of defect in form [69] Adequacy of material [81] Ramifications of ss 25 & 26 on admissibility of evidence [88] Severance application [91] Relevant principles [94]
Trial before Judge alone application [99]
Crown’s s 344A application – affidavits filed in support
of bail hearings [106]
Use of affidavits sworn for bail purposes at trial [116]
Relevant principles [119] Crown’s application to amend indictment [131] Relevant principles [135] Summary [142]
INTRODUCTION
[1] This judgment deals with a number of pre-trial applications brought by the defence. It also deals with applications by the Crown under s 344A of the Crimes Act 1961 that communications intercepted pursuant to interception warrants and affidavits sworn by Mr Darwish in support of a bail application are admissible at the forthcoming trial of the accused, and for leave to amend the indictment.
[2] The counts in the indictment can be summarised as follows:
a) Mr Darwish only
Count 1 – Importation of Class B drug hashish for supply. Count 2 – Possession of Class B drug hashish for supply. Count 3 – Conspiracy to import the Class B drug hashish. Count 4 – Conspiracy to export the Class B drug cannabis.
Counts 5 – 11 – Use of passport Mr Darwish knew or had reason to suspect had been falsified or had been obtained by a false representation.
b) Mr Darwish and Ms King
Counts 12 – 22 – Money laundering.
[3] Counts 1, 2 and 3 relate to events occurring predominantly in Japan, namely the importation of hashish into Japan (Counts 1 and 3), and the possession of hashish for supply in Japan (Count 2). However, on the dates the offending was alleged to have occurred, Mr Darwish was in New Zealand. For Counts 1, 2 and 3 the Crown relies upon his involvement as a party to the offending and upon the provisions of s
12C of the Misuse of Drugs Act 1975.
[4] Count 4 relates to an alleged conspiracy to export cannabis from New
Zealand.
[5] Counts 5 to 11 relate to the alleged use by Mr Darwish of a United Kingdom passport in the name of Paul Daley.
[6] Counts 12 to 22 comprise the money laundering charges against both accused. They relate to the alleged deposit into various bank accounts and a solicitor’s trust account, of monies said by the Crown to be the proceeds of serious offences. It is not alleged by the Crown that the monies in question are the proceeds of the offences the subject of the first four counts, but that they are proceeds of other drug offences.
THE APPLICATIONS BEFORE THE COURT
[7] Mr Darwish applies for:
a) Discharge under s 347 of the Crimes Act on Counts 1, 2 and 3, on the grounds that this Court has no jurisdiction in respect of the alleged offending, because it occurred in Japan, and any alleged involvement by Mr Darwish in that offending is not captured by s 12C of the Misuse of Drugs Act 1975, and
b) Discharge under s 347 of the Crimes Act on Count 4 on the grounds that the Crown’s evidence as to the existence of a conspiracy is so deficient that a properly directed jury could not convict Mr Darwish on the Count, and
c) Discharge under Counts 5 and 6 because they arise from informations laid out of time. Charges under s 31 of the Passport Act must be laid within two years of the offence occurring (s 38(3) of the Passports Act
1992).
[8] The accused apply for:
a) Severance of the money laundering charges for both accused from
Counts 1 to 11.
b) Dependent upon the outcome of the severance applications, trial by
Judge alone in respect of the money laundering charges.
[9] The Crown applies pursuant to s 344A for orders that the following evidence be admitted at the forthcoming trial:
a) Affidavits sworn by Mr Darwish in support of an appeal against the refusal of bail and in support of a subsequent renewed application for bail.
In opposing the admission of these affidavits, Mr Darwish relies upon the right against self-incrimination under s 25 of the New Zealand Bill of Rights Act 1990. He also argues that these affidavits should be treated as akin to evidence given by an accused on a voir dire, and should not be admitted into evidence at trial on the grounds of fairness.
b) The intercepted communications.
Mr Darwish challenges the validity of the warrants under which communications were intercepted, because of non-compliance with the requirements of the Misuse of Drugs Amendment Act 1978 in respect of both the applications and warrant.
[10] Finally, the Crown has filed an application for leave to amend the indictment. It applies for leave to remove Counts 5 and 6 (the passport charges), the subject of Mr Darwish’s s 347 application. Further, the Crown applies for leave to amend Counts 1, 2 and 3 (s 12C Misuse of Drugs Act 1975) to replace them with charges under s 10 of the same Act. The Crown applies for this amendment only if the Court accepts the jurisdictional challenge in relation to Counts 1, 2 and 3 mounted by Mr Darwish.
[11] I note as a preliminary matter that the nature and basis of the applications before me evolved considerably during argument. At the conclusion of the first day of hearing both counsel were given leave to file further memoranda in relation to issues that had arisen. Due to the commitments of counsel, the second day of the hearing was nearly two months later. By that stage a considerable volume of further submissions had been filed for both the accused and the Crown. Further arguments were also advanced in oral submissions. I do not criticise counsel as this no doubt arose because of the complexity of the issues involved. It has made the task of capturing counsel’s arguments something of a logistical exercise. However I am confident that all issues I address in this judgment were traversed by counsel during argument before me.
SECTION 347 APPLICATION – GENERAL PRINCIPLES
[12] Section 347 confers upon this Court a power to discharge an accused. The section is silent as to the test to be applied to applications brought under it. Section
347(3) provides that it is a matter for a Judge’s discretion whether to direct a discharge. The test to be applied has however been settled by the Court of Appeal, where the Court said in Parris v Attorney General [2004] 1 NZLR 519 at [13] and [14]:
There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pre-trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear–cut in favour of the accused, it should be left for the jury to decide.
SECTION 347 APPLICATION - COUNTS 1 AND 2
[13] It is submitted on behalf of Mr Darwish that the Court has no jurisdiction in the matters the subject of Counts 1 and 2, and therefore the Court should exercise its discretion under s 347 of the Crimes Act to discharge Mr Darwish on these counts. Counts 1 and 2 provide respectively:
Section 12C
Misuse of Drugs Act 1975
THE CROWN SOLICITOR AT AUCKLAND charges that AHMED MOHAMMED DARWISH between 1 September
2003 and 19 September 2003, at Auckland and Tokyo, Japan, together with Ivor Stanley Luke Whitehead, and/or others, did acts which if done in New Zealand would constitute an offence against section 6 of the Misuse of Drugs Act 1975, namely the importation of the Class B controlled drug cannabis preparation, known as cannabis resin or hashish.
Section 12C
Misuse of Drugs Act 1975
THE said Crown Solicitor further charges that AHMED MOHAMMED DARWISH on or about 19 September 2003, at Auckland and Tokyo, Japan, together with Ivor Stanley Luke Whitehead, and/or others, did acts which if done in New Zealand would constitute an offence against section
6 of the Misuse of Drugs Act 1975, namely the possession of the Class B controlled drug cannabis preparation, known as cannabis resin or hashish, for a purpose specified in paragraph (c) of subsection (1) of section 6 of the Misuse of Drugs Act 1975.
[14] Mr Gibson for Mr Darwish relies upon the wording of s 12C of the Misuse of Drugs Act 1975 and says that the section can have no application unless it can be shown that Mr Darwish did or omitted to do an act outside New Zealand that would if done or omitted in New Zealand constitute an offence. He says that the section is directed at people who offend overseas and then return to New Zealand to escape the consequences of that offending. The application of the section depends upon the conduct of the accused outside New Zealand, not within New Zealand. He submits that the Crown has no evidence of any acts or omissions of Mr Darwish outside New Zealand.
[15] The following facts are relied upon by Mr Darwish:
a) Mr and Mrs Darwish arrived in New Zealand on 27 August 2003.
b) On 4 September 2003 an electronic surveillance operation was commenced on Mr Darwish.
c) A number of conversations were intercepted that prima facie implicate Mr Darwish who was in Auckland, New Zealand, with Mr Ivor Whitehead who was in Tokyo, Japan. Mr Ivor Whitehead was arrested in Japan in respect of the importation into Japan and possession of, hashish, a Class B drug in New Zealand. The hashish was imported into Japan from Nepal. The importation occurred on or about 15 September 2003.
d) Mr Darwish did not leave New Zealand from his arrival on 27 August
2003 until his arrest in December 2003.
[16] Section 12C provides in material part:
12C Commission of offences committed outside New Zealand
(1) Subject to subsection (2), every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against—
(a) Section 6; or
(b) Section 9; or
(c) Section 12A; or
(d) Section 12B.
(2) No proceedings for an offence against subsection (1) may be brought unless -
(a) The person to be charged is a New Zealand citizen; or
(b) The person to be charged is present in New Zealand.
(3) Every person who commits an offence against this section is liable on conviction on indictment to the same penalty to which the person would have been liable had that person committed the offence in New Zealand.
(4) Subsection (1) does not apply if the doing or omission of the act to which the charge relates was not an offence under the law of the place where the act was done or omitted.
[17] Section 28A of the Misuse of Drugs Act 1975 provides:
(1) No information may be laid for an offence against section 12C
except with the consent of the Attorney-General.
(2) A person who is alleged to have committed an offence against section 12C may be arrested, or a warrant for the arrest of the person may be issued and executed, and any such person may be remanded in custody or on bail, even if the Attorney-General’s consent to the laying of the information has not been obtained, but no further or other proceedings may be taken until that consent has been obtained.
(3) The Attorney-General may, before deciding whether or not to give his or her consent under subsection (1), make such inquiries as he or she thinks fit.
Some general observations about the Courts’ criminal jurisdiction
[18] The issue raised on behalf of Mr Darwish is largely one of jurisdiction. In New Zealand all crimes are prescribed by Statute. There are no common law crimes. Section 9 of the Crimes Act 1961 provides that:
No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom:
Provided that -
(a) Nothing in this section shall limit or affect the power or authority of the House of Representatives or of any Court to punish for contempt:
(b) Nothing in this section shall limit or affect the jurisdiction or powers of any Court Martial, or of any officer in any of the New Zealand forces.
[19] This can be contrasted with other jurisdictions, for example England, where the Courts do have criminal jurisdiction in respect of both statutory and common law crimes. For Mr Darwish it is therefore argued that even if Mr Darwish is proved to have committed the acts alleged, these are not criminal acts.
[20] The Crimes Act also contains general provisions as to jurisdiction, and in particular ss 6 and 7 which provide:
6 Persons not to be tried in respect of things done outside New
Zealand
Subject to the provisions of section 7 of this Act, no act done or omitted outside New Zealand is an offence, unless it is an offence by virtue of any provision of this Act or of any other enactment.
7 Place of commission of offence
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.
[21] As a consequence of these provisions issues of jurisdiction are usually resolved in New Zealand through statutory interpretation (Tipple v Pain [1983] NZLR 257.)
[22] In interpreting provisions of a penal nature I bear in mind s 5(1) of the Interpretation Act 1999 which provides that an enactment must be given meaning from both its text and its purpose. I note that while there appears to be a move away from the strict construction of criminal statutes (R v Karpavicius [2004] 1 NZLR 156 at [15]), toward a more purposive approach, it is nevertheless the case that the accused is still entitled to the benefit of the doubt where there is a genuine uncertainty as to the meaning and purpose of a provision (Laws NZ, Statutes, para
180). In this case there is no such doubt. As I explain below when regard is had to both the text and purpose of the provisions of s 12C, it is clear that the section can have no application to Mr Darwish’s alleged conduct.
Crown’s first submission: enough evidence to go to jury
[23] Mr Raftery for the Crown argued that the issue is not one of jurisdiction. He submitted that there is sufficient evidence from which a jury could properly infer that prior to arrival in New Zealand Mr Darwish had committed acts in furtherance of the alleged importation into Japan of the hashish, and that the counts should therefore be allowed to go to the jury. However Mr Raftery did not point me to any evidence from which this could be inferred. Having considered the depositions, and in particular the transcripts of the intercepted conversations I am satisfied that there is insufficient evidence to put before a jury of acts committed by Mr Darwish outside
New Zealand on which a properly directed jury could convict. I therefore turn to the
Crown’s alternative argument.
Crown’s second submission: s 12C can apply to parties acting within New
Zealand
[24] The Crown concedes that s 12C applies to acts done outside New Zealand. However, it says that s 12C must be read in conjunction with s 66 of the Crimes Act
1961 so that it can also have application to persons who, within New Zealand aid, abet, incite or procure acts done outside New Zealand. Section 66 provides:
66 Parties to offences
(1) Every one is a party to and guilty of an offence who - (a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[25] I am not persuaded by this argument. The first difficulty that the argument encounters is the general principle that secondary liability pre-supposes the commission of an offence by someone who is directly liable as the principal party. It has been held on numerous occasions that a person cannot be guilty under s 66(1)(b)- (d) as a secondary party unless it is proved that another person actually committed an offence in terms of s 66(1)(a) (R v Harrison [1941] NZLR 354 (CA); R v Paterson [1976] 2 NZLR 394 (CA)). There is no principal offender in this jurisdiction because the importation and possession of hashish in Japan is not an offence in New Zealand. In the absence of specific statutory provisions to the contrary, this would preclude the possibility of secondary liability resting upon a person within this jurisdiction.
[26] However, the most compelling reason for not giving s 12C the extended and in my view strained reading contended for the Crown, is that Parliament has addressed expressly extended party liability in relation to drug offending occurring outside New Zealand. Section 10 of the Misuse of Drugs Act 1975, by its terms, captures the type of offending the Crown alleges. Section 10 provides in material part:
10 Aiding offences against corresponding law of another country
(1) Every person commits an offence against this Act who, in New Zealand, aids, incites, counsels, or procures the doing or omission in any place outside New Zealand of any act, if that act or omission -
(a) Is punishable under the provisions of any law corresponding to section 6 or section 9 of this Act and in force in that place; or
(b) Would if done or omitted in New Zealand constitute an offence against section 6 or section 9 of this Act.
(2) Every person who commits an offence against this section is liable on conviction on indictment to imprisonment for a term -
(a) Not exceeding 14 years where the relevant act or omission is punishable under the provisions of any law corresponding to section
6 of this Act or would if done or omitted in New Zealand constitute an offence against that section:
(b) Not exceeding 7 years in any other case.
…
(4) It is a defence to a charge under paragraph (b) of subsection (1) of this section if the doing or omission of the act to which the charge relates was not an offence under the law of the place where it was, or was to be, done or omitted.
[27] The Crown says that Mr Darwish could have been charged under either ss 10 or 12C of the Misuse of Drugs Act 1975. The Crown relies upon s 10(3) of the Crimes Act which provides:
Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.
[28] The Crown says that what distinguishes ss 10 and 12C, is that s 10 can only apply to a person where the conduct as a party is committed in New Zealand,
whereas under s 12C it is immaterial where the conduct occurs as long as the person is in New Zealand when criminal proceedings are commenced.
[29] I cannot accept this argument. When the scheme of the legislation is considered, s 10 is clearly intended by Parliament to capture those who whilst in New Zealand abet, incite or procure drug offending in another country. Section 12C is directed to those who commit acts while outside New Zealand and then return to New Zealand. Section 10 would be rendered redundant if the interpretation of s 12C advocated by the Crown is correct.
[30] It is also relevant that in s 28A of the Misuse of Drugs Act Parliament has required that the Attorney General’s consent be obtained to the laying of an information under s 12C. Parliament has recognised the exceptional nature of the charges to be laid under the provision. This is consistent with s 12C being directed to acts or omissions occurring outside New Zealand, and militates against the expansive reading contended for by the Crown.
[31] I express no view as to whether s 12C applies to those who whilst outside New Zealand do acts aiding and abetting the commission of the offence outside New Zealand. That issue is best addressed when it arises on the facts of a particular case.
[32] It is also significant that Parliament has provided a particular penalty regime in respect of offences against s 10 of the Misuse of Drugs Act that differs from those which would apply under s12C. Were the Crown’s argument to be accepted, the maximum penalty would be the penalty that would apply had the offence occurred in New Zealand. However, this has the potential to create an unacceptable anomaly. For example, under the Crown’s argument, assuming an importation into another country of a Class A drug, where the country of export is also other than New Zealand, X arranging the importation in Auckland, New Zealand, could be liable under s 12C as a party to importation of a Class A drug into another country. The maximum penalty would be life imprisonment because that is the maximum penalty for that offence in New Zealand: s 12C(3). However, X could also be liable under s
10, which expressly addresses this type of offending, and for that offence the maximum penalty would be 14 years. Such a disparity in penalty can not have been
intended by Parliament for essentially the same offence. I am therefore satisfied that because Parliament has specifically provided for this type of situation in s 10, I should decline to read s 12C expansively so that it effectively performs the function of s 10.
Section 12C and s 7 of the Crimes Act
[33] I have also given consideration to whether s 7 of the Crimes Act assists the Crown. Section 7 was referred to by the Crown in argument, although not fully, as Mr Raftery submitted it was not necessary for the Crown to rely upon it. Section 7 of the Crimes Act deems an act or omission to have occurred in New Zealand (and thereby confers jurisdiction upon the New Zealand Courts in respect of that act or omission) in the following situations:
a) Where any act or omission forming part of any offence occurs in
New Zealand; or
b) Where any event necessary to the completion of any offence occurs in
New Zealand.
[34] The first alternative requires that some act being part of the actus reus be committed in New Zealand: Tipple v Pain [1983] NZLR 257; Collective Customs v Kozanic (1983) 1 CRNZ 135. This does not assist the Crown as it is not alleged that Mr Darwish did an act in New Zealand which constituted part of the actus reus for either importing cannabis into Japan, or possessing cannabis in Japan.
[35] The second alternative is more difficult. It is at least arguable that the alleged aiding and abetting by Mr Darwish was necessary to the completion of the offence in the sense that the importation and possession may not have come to fruition without his involvement. However, in terms of the wording of the section, there needs to be an “event” rather than conduct per se. This limb focuses not on the conduct of the defendant but on the occurrence of any “event” necessary for the completion of the offence. (Collection of Customs v Kozanic (1983) 1 CRNZ 135). I can see no
“event” which is necessary to the completion of the offences which occurred in New
Zealand.
[36] Accordingly s 7 does not apply to deem the principal offending to have occurred within New Zealand. Even if it did, this would not assist the Crown with the application of s 12C, as it would deem the offending to have occurred in New Zealand and thus take it outside the express terms of s 12C. It would however have made Mr Darwish amenable to charges under s 6 of the Misuse of Drugs Act 1975.
Common law
[37] Issues as to the criminal jurisdiction of the Courts have generally been resolved by statutory interpretation. However a different view was expressed by Paterson J, albeit in obiter comments, in Solicitor-General v Reid [1997] 3 NZLR
617. This case was referred to me in argument.
[38] Paterson J approved of a Canadian case Libman v R (1985) 21 CCC (3d) 206,
221; 21 DLR (4th) 174, 189. In that case the issue of the geographical limits upon a Court’s jurisdiction, and the resultant difficulties in addressing offending on an international scale were comprehensively reviewed. It was said:
The English Courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime takes place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.
[39] La Forest J in Libman summarised the position as follows: (at p 232; p 200):
As I see it, all that is necessary to make an offence subject to the jurisdiction of our Courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a ’real and substantial link’ between an offence and this country, a test well known in public and private international law."
[40] Much of the idea of extending jurisdiction originated from Lord Diplock’s dissenting judgment in Treacy v DPP [1971] AC 537 (HL). There the learned Law Lord said at 561:
The Parliament of the United Kingdom has plenary power, if it chooses to exercise it, to empower any court in the United Kingdom to punish persons present in its territories for having done physical acts wherever the acts were done and wherever their consequences took effect. When Parliament, as in the Theft Act 1968 defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person’s punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reason have we to suppose that Parliament intended any geographical limitation to be understood?
The only relevant reason, now that the technicalities of venue have long been abolished, is to be found in the international rules of comity which, in the absence of express provision to the contrary, it is presumed that Parliament did not intend to break. It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law.
There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience to our law, from doing physical acts in England, notwithstanding that the consequences of those acts take effect outside the United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other state.
[41] I also note the most recent English authority on point: R v Smith [2004] 3
WLR 229. In that case the English Court of Appeal held that where substantial activities constituting a crime, or the gist of the offence takes place in England then the English courts can assume common law jurisdiction over the offence.
[42] In New Zealand the Crimes Act 1961 has specific provisions relating to jurisdiction so that it could not be said that the Crimes Act, in Lord Diplock’s words “do[es] not contain any geographical limitation”.
[43] As noted earlier, Parliament has provided statutory provisions as to the jurisdiction of New Zealand courts exercising criminal jurisdiction. Section 9 of the Crimes Act provides that all crimes must be statutory. Sections 6 and 7 of the
Crimes Act expressly address the Court’s jurisdiction in respect of acts and omissions committed outside New Zealand. Given this, I am sceptical as to the possibility of the broader international comity rule prevailing in New Zealand to extend the Court’s jurisdiction beyond that provided by statute. In addition, in relation to controlled drugs, Parliament has specifically turned its mind to extra- territoriality and enacted s 12C and s 10 of the Misuse of Drugs Act.
Summary
[44] Accordingly, I accept Mr Gibson’s argument for Mr Darwish that s 12C requires proof of acts committed outside New Zealand by Mr Darwish that, if committed within New Zealand would constitute an offence. It has no application where the acts relied upon are committed inside New Zealand. I am satisfied that there is insufficient evidence of any such acts on which a properly directed jury could convict.
[45] However, that is not dispositive of the matter as the Crown has made application, in the event that the Court should so conclude, to amend the indictment to replace the reference to s 12C in Counts 1 and 2 with reference to s 10 of the Misuse of Drugs Act. In my view it is conducive to the interests of justice to allow the amendment. I deal with this issue when considering the Crown’s application to amend the indictment. (See paras [131] - [141] below).
SECTION 347 APPLICATION - COUNT 3
[46] Count 3 charges that Mr Darwish at Auckland conspired with another to import hashish into Japan. The Crown relies upon s 6(2A) of the Misuse of Drugs Act 1975 which provides that:
(2A) Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to imprisonment for a term -
(a) Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) Not exceeding 7 years in any other case.
[47] Thus the conspiracy must be one which involves committing an act against s 6(1). The corresponding paragraph is s 6(1)(a) which provides:
Import into or export from New Zealand any controlled drug ...
[48] As Mr Gibson points out, s 6(1)(a) makes it an offence to import a controlled drug into New Zealand. There is no offence of importing controlled drugs into Japan. The obstacle for the Crown is immediately apparent. The Crown does not dispute that a conspiracy must be an agreement to commit an offence. Here there is no offence. Thus, s 6(2A) does not apply to the alleged offending in this case. Although not referred to in the indictment, the Crown again relies upon s 12C to create jurisdiction. As I have already held, s 12C has no application to offending said to arise from acts committed within New Zealand.
[49] Section 310 of the Crimes Act deals with the territorial reach of conspiracy charges. It provides in material part:
310 Conspiring to commit offence
(1) Subject to the provisions of subsection (2) of this section, every one who conspires with any person to commit any offence, or to do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence exceeds 7 years’ imprisonment, and in any other case is liable to the same punishment as if he had committed that offence.
(2) This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by some other enactment.
(3) Where under this section any one is charged with conspiring to do or omit anything anywhere outside New Zealand, it is a defence to prove that the doing or omission of the act to which the conspiracy relates was not an offence under the law of the place where it was, or was to be, done or omitted.
[50] On its face s 310 applies to agreements made within New Zealand to commit offences outside New Zealand. Prima facie, this captures the present alleged
offending. There is an issue as to where the alleged agreement was formed. The evidence suggests that part of the agreement to commit the particular offences was made during telephone conversations between Mr Darwish in New Zealand, and his alleged co-conspirator or co-conspirators, outside New Zealand. If so, I am of the view that the agreement was formed in both New Zealand and the country in which the co-conspirator was at the time.
[51] The next issue is whether the Misuse of Drugs Act provides a punishment for the conspiracy such as to displace s 310 (s 310(2)). Section 6(2A) does not apply to Mr Darwish’s alleged offending, so it cannot be said to provide a punishment for the alleged offending. Therefore I do not consider that s 6(2A) is a specific statutory regime such as to displace the operation of s 310.
[52] I have also considered the Court of Appeal and Privy Council decisions in R v Karpavicius [2001] 3 NZLR 41 (CA); [2004] 1 NZLR 156 (PC). The issue in that case was whether the words “in any other class” in s 6(2A)(C) captured a situation where it could not be proved which class of drugs was involved. The Court of Appeal held that it did. In reaching that conclusion, the Court of Appeal said at [22]:
... sub (2A) provides a comprehensive statement of conspiracy offending in relation to controlled drugs. It is complete in its coverage because of the successive and exhaustive steps which may be required.
[53] That dicta may indicate that s 6(2A) is a specific regime, so as to displace s 310, by reason of s 310(2). However, in Karpavicius the Court was not addressing the relationship between s 6(2A) of the Misuse of Drugs Act and s 310 of the Crimes Act. I am satisfied as a matter of statutory interpretation that s 6(2A) does not deal with conspiracies within New Zealand to import drugs into countries outside New Zealand, and that s 310 does.
[54] It therefore follows that count 3 must stand.
SECTION 347 APPLICATION - COUNT 4
[55] This count is as follows:
THE CROWN SOLICITOR AT AUCKLAND charges that AHMED MOHAMMED DARWISH on or about 19 December 2003, at Auckland and/or elsewhere, conspired with a person or persons unknown to commit an offence against section 6 of the Misuse of Drugs Act 1975, namely to export the Class C controlled drug cannabis from New Zealand.
[56] It is common ground that the principal evidence the Crown will produce in respect of the alleged conspiracy to export cannabis from New Zealand is an intercepted communication between Mr Darwish and an individual ‘Kobi’. Mr Gibson submits that the conversation merely evidences acts preparatory to an agreement. He refers to the decision of the Court of Appeal in R v Morris (Lee) [2001] 3 NZLR 759 at [15] - [19] and says that in this case there is insufficient evidence to take the Crown’s case against Mr Darwish to the threshold suggested by the Court of Appeal in R v Morris.
[57] In Morris the Court of Appeal described the essential elements of conspiracy as follows:
A conspiracy is a conscious common design of two or more persons to do an unlawful act or to do a lawful act by unlawful means (R v Humphries at p
356; Ahern v R (1988) 165 CLR 87 at p 93). As this Court said in R v Gemmell [1985] 2 NZLR 740 at p 743, it is of the essence of a conspiratorial agreement that there must be not only an intention to agree but also a common design to commit some offence, that is, to put the design into effect.
[58] The conversation in question is reasonably lengthy. “Kobi” refers to a friend in the fishing business who comes to New Zealand, and then after one month at sea, goes to Japan. He tells Mr Darwish that the friend will be in New Zealand in one month. There is a discussion regarding acquiring “weed” or “skunk” in a quantity referred to as “ten key” for when the friend arrives in one months time. Toward the end of the conversation there is the following exchange:
Kobi: At the end of the month he’s there.
Darwish: Now if you want I arrange it from now, no problem because you know I arrange everything but ya … it.
Kobi: Okay go for it.
[59] Mr Gibson submitted that the intercepted conversation was insufficient to evidence an agreement to export cannabis from New Zealand because the central element of from where and for what price the cannabis was to be sourced was not yet resolved. Further, there was no evidence that Mr Darwish had the ability to source the cannabis. The discussions were therefore preparatory to an agreement, and no agreement was reached.
[60] Having regard to the transcript of the conversation as a whole, and the particular excerpt set out above I am satisfied that there is sufficient evidence to place before a jury that if properly directed they could properly conclude that there was agreement reached as to a common design that Mr Darwish would purchase cannabis and deliver it to a “friend” who would export it out of New Zealand.
[61] In any event, I am not satisfied that agreement as to the source of supply, and price of the cannabis is necessary for completion of a conspiracy offence. That would be to demand a level of specificity which is too particular. It is not to be forgotten that the essence of a conspiracy is the mere agreement itself: R v Gemmell [1985] 2 NZLR 740. Moreover, it is irrelevant that Mr Darwish may not have had the ability to source the cannabis: R v Sew Hoy [1994] 1 NZLR 257.
[62] Thus, count 4 must stand.
SECTION 347 APPLICATION - COUNTS 5 AND 6
[63] Counts 5 and 6 of the Indictment relate to alleged offending under s 31 of the Passports Act 1992 which occurred on or about 9 October 2000 (in the case of Count 5) and on or about 22 November 2000 (in the case of Count 6).
[64] There is a time limit set for the filing of informations in respect of the alleged offending. Section 38(3) of the Passports Act 1992, imposes a time limit of two
years from the date of the alleged offence. The informations in respect of these two matters were filed on 23 December 2003. The informations are therefore statute barred. The Crown has sought leave to amend the indictment to remove these counts, rather than Mr Darwish being discharged in respect of them. I will deal with that application later in this judgment (paras [131] - [141]). Counts 7-11 also relate to alleged offending under s 31 of the Passports Act 1992 but they are not the subject of an application under s 347 of the Crimes Act.
CROWN’S SECTION 344 APPLICATION - INTERCEPTED COMMUNICATIONS
[65] Four interception warrants under the Misuse of Drugs Amendment Act 1978 were granted in relation to Mr Darwish. These were productive of much of the evidence upon which the Crown relies. The initial warrant was dated 4 September
2003. Further warrants were granted on 1 October 2003, 30 October 2003 and 27
November 2003.
[66] In respect of each of the applications for warrant, orders were made sealing the Court file in relation to the affidavit material filed in support of the application. Mr Gibson initially brought application for access to the affidavits filed in support of the applications for interception warrants but withdrew that application prior to hearing. At hearing, he submitted:
1. The first warrant was a nullity because of a failure to specify Mr Darwish’s address in either the application or the warrant. Mr Gibson submits that this is a defect of substance and not curable under s 25(2) of the 1978 Amendment Act.
2. In considering the Crown’s application for admissibility of the intercepted communications, I should exercise the Court’s jurisdiction to review the applications and warrants in order to ensure that ss 14 and 15 of the Misuse of Drugs Amendment Act 1978 had been complied with.
[67] Mr Raftery for the Crown was content that I do so, and I am satisfied that this is an appropriate step. In R v McGinty [1983] NZLR 524, the Court of Appeal said:
It is unusual for a High Court Judge to be required to adjudicate on what has been done by another High Court Judge or by himself. But, as was stressed in Menzies, this is unusual legislation and Parliament has provided special safeguards as a condition of granting exceptional powers to invade privacy.
What s 25 contemplates is that the trial Judge will, if called upon to do so, review the application for and the granting (including any renewal) of an interception warrant so far as may be necessary to determine whether evidence is excluded from admissibility by subs (1) or may be admitted in the exercise of his discretion under subs (2). The section does not contemplate that the trial Judge will approach the matter as if hearing an appeal from the granting of the warrant. Nor that he should substitute his discretion for that of the authorising Judge ... In general what will be required will be a check as to whether the procedural steps laid down by the statute were properly followed and whether there was sworn material before the authorising Judge which could reasonably be regarded as satisfying the criteria in ss 14 and 15.
[68] Likewise, the jurisdiction arises on a challenge to admissibility, as the Court said in McGinty:
It is implicit in these provisions that the Court of trial, on a challenge to admissibility, will have to rule on such questions as to whether there was a defect of form or an irregularity in procedure in the application for or the granting of the warrant; or whether on the other hand there is a substantive defect or irregularity.
Challenge to admissibility on ground of defect in form
[69] Mr Gibson relies upon a defect in form in terms of both the application and the first warrant granted. He points out that no address was referred to in either application for the first warrant, or the warrant itself in respect of Mr Darwish. He acknowledges that address details were included in subsequent renewal applications and warrants.
[70] Mr Gibson correctly observes that there can be three types of warrants under s 14(2)(c) of the Misuse of Drugs Amendment Act 1978:
a) A personal warrant;
b) A premises warrant; or
c) Includes both a personal and premises warrant.
[71] It was common ground before me that the warrant applied for was a personal warrant. Mr Gibson submits that the effect of s 14(2)(c) is that where a personal warrant is applied for, both the name and address of the suspect must be stipulated in the application. He further submits that the prescribed form of warrant also requires that the address of the suspect must be stipulated in the warrant.
[72] I am satisfied that s14(1) of the 1978 Amendment Act and the form of warrant (as in force on 4 September 2003) required that for a personal warrant the application and warrant should stipulate both the name and address of the suspect.
[73] Mr Gibson relies upon R v Menzies [1982] 1 NZLR 40 as authority for the proposition that since the grant of the interception warrant results in a serious intrusion upon the rights of privacy of a individual, there is a need for strict compliance with the statute. The prerequisites as set out in the Act must therefore be faithfully observed.
[74] It was Mr Gibson’s submission that the mischief the Act seeks to avoid is the interception of conversations other than those of the suspect. He submits that the ambit is restricted by ensuring that they are confined to the suspect’s phone. The focus of this section is on the premises or address from which the suspect is likely to be operating. To authorise the interception of phone calls of a named person without an address is to allow the Police to intercept his conversations at any address he happens to be visiting.
[75] The Crown responds that the fact of the requirement of both the name and address of the person does not transform the warrant into a “premises warrant”. The purpose of the address (if known) is to adequately identify the person. The warrant however, authorises the interception of any private communications by that person no matter where he be.
[76] I accept the Crown’s argument as to the purpose behind the requirement of the name and address. It is plain from the scheme of the legislation that a personal
warrant is intended to authorise interception of private communications of a suspect wherever they may occur, and not limited to the address described. The purpose of the requirement of address is to adequately identify the suspect, and ensure that persons of the same name, but different abode, do not have their privacy intruded upon by reason of mistaken identity.
[77] In this case the application drew the attention of the Court to the absence of the address and the reasons why the Police were not in a position to provide the address. The subsequent applications for renewal did stipulate an address, and this was incorporated into later warrants. However, the absence of the address in the original application and warrant is a defect in both.
[78] In R v Honan (1991) 7 CRNZ 473, the Court of Appeal was prepared to treat a failure to supply and to stipulate an address in a warrant as a defect of form, curable under s 25(2) of the Misuse Drugs Amendment Act 1978. In that case, the address had been stipulated in the application, but simply omitted from the warrant when completed. In R v Rowling (1985) 1 CRNZ 648, the warrant was held to be defective because it included names of suspects but not of their addresses. There was a further defect in that the warrant purported to authorise the interception of the private communications of unnamed persons at a specified address, rather than being in the form of a premises warrant. In that case, Williamson J held that because of the defects, the warrant did not follow the mandatory form and therefore was invalid. It could not be said to be an interception warrant issued under the Amendment Act. He nevertheless admitted the evidence under s 25(2) of the 1978 Amendment Act.
[79] Section 25 of the 1978 Amendment Act provides that any private communications intercepted otherwise than in pursuance of an interception warrant or emergency permit issued under the Act are inadmissible other than in proceedings relating to the unlawful interception of the private communications. However, s
25(2) provides that where unlawfully intercepted private communications are inadmissible in criminal proceedings by virtue of a defect in form or irregularity in procedure, a Court may admit that evidence in proceedings for a drug dealing offence or a prescribed cannabis offence. The Court must be satisfied that the defect
in form or irregularity in procedure was not substantive and was not the result of bad faith.
[80] Having viewed the initial application in this case, I am satisfied that the defect was not the result of any bad faith on the part of the Police. Further, and importantly, by reason of the defect the warrant did not authorise the interception of any wider class of communication than would have been authorised were the address specified. I find that the error is not substantive and is a defect in form only and that the evidence should be admitted under s 25(2) of the 1978 Amendment Act. However that section allows the admission of the evidence only in limited circumstances. The effect of this limitation is that evidence will not be admissible for all of the counts in the indictment. I deal with the particular ramifications of s 25 in relation to each count at paras [88] – [90] below.
Adequacy of material
[81] As a further challenge to the legality of the warrants Mr Gibson submits that there was inadequate sworn material before the authorising Judges which could reasonably be regarded as satisfying the statutory requirements as to the form and content of the application and warrant, and to provide proper grounds for the issue of the warrant criteria in ss 14 and 15. In respect of Counts 1 and 2 he says that a review will likely reveal that the grounds for the making of an application did not exist and that there was insufficient affidavit material to support them. He submits that it is significant that the warrants were applied for on the grounds of importing into New Zealand and supply of drugs in New Zealand, none of which have any relevance to the present indictment. He also submits that the application for an interception warrant requires that there be reasonable grounds for believing that a person has, is or is about to commit a “drug dealing offence”, as defined in s 10 of the 1978 Amendment Act. Section 10 of the Misuse of Drugs Act 1975 is not included in that definition.
[82] Mr Gibson did not submit that the warrants could be rendered invalid retrospectively because they revealed evidence leading to the laying of charges other than those anticipated in the warrant application. He placed his submission no
higher than that the ultimate nature of the charges laid were suggestive of inadequate material available to the Police to meet the requirements of ss 14 and 15 of the 1978
Amendment Act.
[83] It is clear that before a warrant can be applied for and granted, there must be a reasonable belief that a “drug dealing offence” has, is, or is about to be committed. I acknowledge that the definition of “drug dealing offence” does not include offences against s10 of the Misuse of Drugs Act. However, at the times the warrants were applied for and granted, there was sufficient material before each Judge to satisfy him or her that there were reasonable grounds to believe that a person had, was or was about to commit a “drug dealing offence.” It was initially thought that Mr Darwish was importing into New Zealand a class B drug (ecstasy) and supplying it in New Zealand (both of which are “drug dealing offences”). Later the warrants were extended to include offending relating to hashish, cocaine and methamphetamine. As it transpired, Mr Darwish has not been charged in respect of a “drug dealing offence.” What is critical is that at the relevant times there was sufficient material in the hands of the Police and before the various Judicial Officers for them to have a reasonable belief that a “drug dealing offence” has been committed, was being committed or was about to be committed. Having received the affidavits sworn for these various applications, (Section 20(11) of the Amendment Act) I am satisfied there was adequate material to make the application and to provide a proper basis for the issue of the warrants.
[84] Mr Gibson submitted that a review was likely to reveal that the second, third and fourth warrants would not have been issued had the Court not had before it evidence of an illegally intercepted conversation and that those warrants are also nullities.
[85] I have considered whether the defect in the first warrant tainted the second, third and fourth warrants. In accordance with R v Crowe (1996) 13 CRNZ 708, 711
I must exclude the tainted information and then determine whether the issuing Judges could have authorised the issue of the warrant on the basis of the remaining evidence. If the warrant could properly have been issued with the tainted information excised, it cannot be said the warrant was issued as an “indirect result”
of that information in terms of s 25(1) of the Amendment Act: R v Crowe at 711,
713. The Court of Appeal framed the issue as: (at 712)
The issue in this case is whether the inclusion of the tainted information rendered the later warrant invalid and the evidence acquired pursuant to it inadmissible.
[86] The Court went on:
In answering this latter question, we do not need to concern ourselves with the possibility that the information had become intermingled or "mixed" with other information so as to make it difficult to determine whether there was sufficient evidence on which to authorise an interception warrant apart from the tainted information. Separate and independent evidence was made available to the issuing Judge in this case. Indeed, Mr Koya conceded in the course of argument that, as the evidence stood, there was sufficient evidence, apart from the offending passage, to justify the issue of a warrant.
We have concluded, therefore, that in such circumstances the validity of the warrant can stand and that the evidence obtained pursuant to it (apart from an objection on any other ground) will be admissible.
[87] In this case, having reviewed the information before each Judicial Officer, and excluding from that consideration references to the tainted information, I am satisfied that the Judges concerned could have lawfully issued the warrants. In terms of Crowe, there was “separate and independent evidence” which was not tainted. In particular, I note that the original affidavit which formed the basis of the first application was again filed in support of each subsequent application. I am satisfied that the warrant would have been granted on the basis of that information alone, without reference to the numerous conversations which had, by that stage, been intercepted. The communications intercepted by reason of the second, third and fourth warrants are therefore admissible.
Ramifications of ss 25 & 26 on admissibility of evidence
[88] The admissibility of the evidence obtained pursuant to the first warrant is determined by s 25 of the 1978 Amendment Act which provides:
25. Inadmissibility of evidence of private communications unlawfully intercepted
(1) Subject to subsections (2) [to (4)] of this section, where a private communication intercepted by means of [an interception device] otherwise than in pursuance of an interception warrant or emergency permit issued under this Act or of any authority conferred by or under any other enactment has come to the knowledge of a person as a direct or indirect result of that interception or its disclosure, no evidence [so acquired] of that communication, or of its substance, meaning, or purport, and no [other] evidence obtained as a direct or indirect result of the interception or disclosure of that communication, shall be given against any person, except in proceedings relating to the unlawful interception of a private communication by means of [an interception device] or the unlawful disclosure of a private communication unlawfully intercepted in that manner.
(2) Even though certain evidence is inadmissible in criminal proceedings by virtue of subsection (1), a Court may admit that evidence if the following conditions are satisfied:
(a) The proceedings are for -
(i) A drug dealing offence; or
(ii) A prescribed cannabis offence; and
(b) The evidence is relevant; and
(c) The evidence is inadmissible by virtue of subsection (1) merely because of a defect in form, or an irregularity in procedure, in—
(i) The application for or the granting of the interception warrant or emergency permit; or
(ii) The manner in which the evidence was obtained; and
(d) The defect in form or irregularity in procedure— (i) Was not substantive; and
(ii) Was not the result of bad faith.]
(3) Subsection (1) of this section shall not render inadmissible against any party to a private communication evidence of that communication that has, in the manner referred to in that subsection, come to the knowledge of the person called to give evidence, if all the parties to the communication consent to that person giving the evidence.
(4) Subsection (1) of this section shall not render inadmissible evidence of a private communication by any person who intercepted that communication by means of [an interception device] with the prior consent of any party to the communication.
[89] The admissibility of the evidence obtained pursuant to the second, third and fourth warrants is determined by s 26 of the 1978 Amendment Act which provides:
26 Restriction on admissibility of evidence of private communications lawfully intercepted
(1) Even if the communication was intercepted under an interception warrant or an emergency permit, evidence of a private communication intercepted by means of an interception device, or of its substance, meaning, or purport, may not be given in any court unless the evidence relates to -
(a) a specified offence; or
(b) a conspiracy to commit a specified offence; or
(c) a terrorist offence; or
(d) a conspiracy to commit a terrorist offence; or
(e) a serious violent offence; or
(f) a conspiracy to commit a serious violent offence; or
(g) a drug dealing offence; or
(h) a prescribed cannabis offence; or
(i) offences of 2 or more of those kinds.
(2) In subsection (1), serious violent offence, specified offence, and terrorist offence have the meanings given to those terms by section 312A of the Crimes Act 1961.
[90] I set out below the effect of these determinations as to the legality of the various warrants:
(a) Because I have held that there is a defect in the form of the first interception warrant, the admissibility of the evidence derived from the first interception warrant is governed by s 25. I am satisfied it should be admitted in terms of s 25(2). However, the effect of the restrictions placed on the use of the evidence in s 25(2)(a) is as follows:
(i) The evidence is inadmissible on charges involving s 12C and s 10 (Counts 1-2) of the Misuse of Drugs Act as those charges are not “drug dealing offences”.
(ii) The evidence is inadmissible on Count 3 (the conspiracy charge involving the Class B drug hashish) as that is not a “drug dealing offence” or a “specified offence.” I have held (paras [46] – [54]) the conduct alleged in count 3 is an offence under s 310 of the Crimes Act, not s 6(2A) of the Misuse of Drugs Act.
(iii) The evidence is admissible on Count 4 (conspiracy to export from New Zealand cannabis charge) as that is a “prescribed cannabis offence”.
(iv) The evidence is inadmissible on the money laundering charges (Counts 12-22) and the passport offending (counts 5-11) as they are neither a “drug dealing offence” nor a “prescribed cannabis offence”.
(b) The evidence derived from the second, third and fourth warrants is admissible on all charges in the indictment, except:
(i) Count 3 (conspiring to import hashish into Japan) as that carries a maximum penalty of 7 years (Crimes Act s 310(1)).
(ii) Counts 5, 6, 7, 8, 9 and 10 (passport offending prior to June
2002). Section 31 of the Passports Act was amended by the Passports Amendment Act 2002 which came into force on 18 June 2002. It increased the penalty for an offence against s 31(1) of the Passports Act from a term of imprisonment not exceeding 2 years to a term of imprisonment not exceeding 10 years. Hence, only counts relating to offending after the amendment (count 11 only) fall inside the definition of “specified offence”. Otherwise, the passport charges do not meet the requirements of “specified offence”.
SEVERANCE APPLICATION
[91] Mr Gibson seeks severance of the money laundering counts (12 to 22). These are the only counts that have been laid against Ms King, who is not charged in
relation to the alleged offending the subject of Counts 1-11. As Mr Gibson points out, and as is conceded by the Crown, the money the subject of the laundering counts cannot be the fruits of the alleged drug offending, the subject of Counts 1 to 4 because of the time frames involved. The Crown must therefore prove discrete criminal offending which is said to have produced the funds in question.
[92] Mr Gibson submits that even with a careful direction to the jury, there is a risk that the jury could confuse the alleged drug offending with the required elements of the money laundering charges. Further, the evidence in relation to the alleged drug offending by Mr Darwish would be prejudicial to Ms King. That would be unfair to Ms King where there is no alleged factual link between the alleged offending the subject of Counts 1 to 4 and the alleged money laundering. Mr Gibson submits that the money laundering counts can easily be dealt with separately and discretely from the other counts without significant duplication of the evidence. To the extent that it is required to replay intercepted conversations, it is submitted, that this would not be overly onerous.
[93] Mr Raftery for the Crown responds that it is the Crown’s case that Mr Darwish is an international drug trafficker. The Crown will attempt to prove at trial that the intercepted telephone calls show that the particular importation into Japan that occurred on or about 19 September 2003 was set against a backdrop of much long-term preparation, and similar earlier offending which was the source of the funds the subject of Counts 12-22. As part of the background evidence relating to Mr Darwish’s activities, the Crown will lead evidence of Mr Darwish’s use of false travel documents to enter the country on earlier occasions. As to Mr Gibson’s point that Ms King will be prejudiced by the criminal allegations against her partner Mr Darwish, Mr Raftery submits that the Crown must prove knowledge on the part of Ms King. This involves a two-stage process, namely showing the nature and extent of Mr Darwish’s alleged offending, and then showing that Ms King knew of it. In substance therefore the evidence in Counts 1 to 4 will be repeated in respect of the money laundering charges if they are severed.
Relevant principles
[94] Section 257A(2) makes it an offence for a person to engage in a money laundering transaction in respect of property that is the proceeds of a serious offence, knowing or believing that to be the case. A serious offence is one punishable by imprisonment for five years or more. A person engages in a money laundering transaction under subsection 4 if they deal with property or assist another so to do for the purpose of concealing it or enabling someone else to conceal the property. To succeed with Counts 12 to 22, the Crown will need to demonstrate the commission of a discreet offence before the laundering occurs, and with knowledge or belief on the part of the person engaged in the money laundering process that all the property is the proceeds of such an offence (R v Harris & Ors, CA15/00, CA16/00, CA 19/00, CA120/00, CA121/00, CA122/00, 1 August 2000), R v Liava’a (1998) 15 CRNZ
524, 527).
[95] In considering whether to grant severance, the Courts have generally applied the same test as for joining of counts, that is, whether it would be conducive to the ends of justice in the particular circumstances of a case: R v Humphries [1982] 1
NZLR 352 (CA) at 355. Counts unrelated in time or circumstance will be severed unless evidence on one is relevant to another so that the probative effect then outweighs the prejudicial effect (R v Hines CA498-507, 5 March 1996, p 4-5). The ends of justice require that a balance be struck between the legitimate interests of the accused and the public interest in a fair and efficient dispatch of Court business: R v Wilson [1997] 2 NZLR 161. The Court may take into account the practicalities of the criminal process and may have regard to factors such as the degree of connection between the charges, the impact of successive trials on the defendant and witnesses, and the likely effect of publicity of the first trial on a subsequent trial: R v Christou [1997] AC 117.
[96] Mr Gibson submitted that R v Allison (HC Auckland, T002481, 13 February
2003, Williams J) in which money laundering charges were severed from charges relating to the manufacture of methamphetamine, was directly comparable to the present case. The key factors identified in Allison were that the alleged drug offending the subject of the balance of the counts was unrelated in time and
circumstance to the offending said to give rise to the money laundering. Secondly, Allison was a case with multiple accused where there was no allegation that the other accused were involved in the drug offending said to give rise to the money laundering charge. The potential for confusion as to the relevance of evidence was palpable.
[97] The admissibility of evidence and the decision to sever are inherently intertwined. Where evidence on one count is not admissible in relation to another count, there is an obvious risk of prejudice to the accused: R v Simon (1986) 2 CRNZ
304, at p 305. The risk may be sufficiently countered by a judicial direction as to the use to which the evidence in question may be put (R v Christou). However, severance will be appropriate where the judicial direction cannot remove the risk of improper use of the inadmissible evidence by a jury.
[98] The Crown’s opposition to the severance application was based largely upon the assumption that the evidence for the money laundering charges will be the same or substantially the same as for the passport, importation and possession counts. However, in light of the rulings as to admissibility of the evidence obtained on the first interception warrant it is clear that this is not the case. That evidence is only admissible in relation to the charge involving a conspiracy to export cannabis from New Zealand (Count 4). I am not satisfied a direction to the jury would remove the risk of improper use of the evidence obtained from the first interception warrant. This is particularly so given the complex position in relation to the admissibility of the evidence obtained on the other warrants, which will also require jury direction. There is therefore a risk of prejudice to the accused in relation to the money laundering charges if those counts are heard together with the counts involving Mr Darwish only. Therefore the application to sever the money laundering counts is granted.
TRIAL BEFORE JUDGE ALONE APPLICATION
[99] Mr Gibson acknowledged that the issue of trial before a Judge alone only arises if severance of the money laundering charges is granted, and only in respect of those charges. This is because trial by Judge alone is precluded in cases where the
accused is charged with an offence for which the maximum penalty is a term of imprisonment of 14 years of more: s 361B(5), 361C(1) Crimes Act.
[100] The basis of the application is that Mr Darwish and Ms King were not told by previous counsel of their right to elect a Judge alone trial. Both have filed affidavits in which they confirm that.
[101] The question of a Judge alone trial is governed by s 361A-361C of the
Crimes Act. Section 361A sets out the default position:
[361A Trial before a Judge with a jury general rule
Subject to sections 361B and 361C of this Act, every accused person shall be tried before a Judge with a jury.
[102] In my view, s 361B does not apply as the requirements of s 361B(1) have not been met as no notice has been delivered to the Registrar within 28 days. Section
361C provides:
[361C Judge may order trial without a jury in certain cases
(1) Without limiting anything in section 361B of this Act but subject to the succeeding provisions of this section, where any person is committed for trial for any offence other than one referred to in section 361B(5) of this Act, he may, at any time before he is given in charge to the jury, with leave of the Judge apply to the Judge for an order that he be tried before the Judge without a jury.
(2) The Judge shall not grant leave under subsection (1) of this section unless he is satisfied -
(a) That the accused was not given notice, in accordance with [section 168C] of the Summary Proceedings Act 1957, of his right to apply under section 361B of this Act to be tried before a Judge without a jury; or
(b) That there were good and sufficient reasons why the accused did not exercise that right in accordance with the said section 361B; or
(c) That it is in the interests of justice that leave be granted.
(3) No such leave shall be granted in any case where a Judge has, pursuant to section 361B(4) of this Act, ordered that the accused shall be tried before a Judge with a jury.
(4) Where 2 or more persons are to be tried together, no leave shall be granted under subsection (1) of this section unless each of them seeks such leave.
(5) Where the Judge grants leave, he shall order that the accused be tried before the Judge without a jury unless, having regard to the interests of justice, the Judge considers that the accused should be tried before the Judge with a jury, in which case he shall order accordingly.]
[103] In this case both accused filed affidavits to the effect that their former counsel did not discuss the matter with them and they were therefore unaware of their rights in relation to a Judge alone trial. Although s 361C(2) creates a presumption against granting leave (“shall not grant leave… unless….”) I am satisfied that there were good and sufficient reasons why the accused did not exercise the right in accordance with s 361B. Accordingly, leave is granted to apply for an order that the accused be tried before a Judge without a jury on the money laundering charges.
[104] Section 361C(5) now places upon me an obligation to order a Judge alone trial unless I am satisfied, having regard to the interests of justice that the accused should be tried before a Judge and jury. The Court will generally assume that, on advice, the accused is the best judge of the interests of justice so far as he is concerned in making the decision that he does for a trial before a Judge alone: R v Narain [1988] 1 NZLR 580, 589.
[105] I acknowledge that the interests of justice do not only extend to the accused and matters such as the duration of the proceedings, practicability, fairness and possible prejudice to all parties must be considered: E v R (HC Auckland, T992377,
20 December 1999, Paterson J). However, in the circumstances, given the initial omission by counsel, the interests of justice demand the application be granted. I rule accordingly.
CROWN’S SECTION 344A APPLICATION - AFFIDAVITS FILED IN SUPPORT OF BAIL HEARINGS
[106] The Crown applies for a ruling that 3 affidavits filed in relation to bail hearings are admissible at the forthcoming trial. The affidavits in question are dated
18 and 26 February 2004, and 27 April 2004.
[107] Mr Darwish was arrested at home and brought before the Court on 23
December 2003. His initial bail application was heard on 21 January 2004. He was refused bail on the principal ground that he presented a risk of flight. Mr Darwish appealed that decision to this Court, and the appeal was heard before a Full Court on
20 & 27 February 2004. A Full Court was convened because of the important issue of principle identified in respect of the appeal, namely the extent to which it was appropriate given the provisions of the New Zealand Bill of Rights Act 1990 for Mr Darwish to be required to answer allegations of risk of flight where his answers might have the effect of rendering nugatory his right to remain silent in respect of the Passport Act charges: D v Police (HC Auckland, CRI 2004-404-44, 5 March 2004, Heath & Miller JJ).
[108] The provisions of the New Zealand Bill of Rights Act with which the Court was concerned were sections 24(b) and 25(c) & (d). Those provide in material part:
24 Rights of persons charged
Everyone who is charged with an offence -
(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention.
…
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(c) The right to be presumed innocent until proved guilty according to law:
(d) The right not to be compelled to be a witness or to confess guilt:
[109] The Full Court recognised that as Mr Darwish was not a person to whom ss
10 or 12 of the Bail Act applied, the onus of demonstrating just cause for detention rested on the Crown. Mr Darwish was entitled to be presumed innocent until proved guilty of the offences with which he had been charged. In giving evidence, the Court recognised that Mr Darwish was placed in a position which might incriminate him. The Court said (at [43]):
Notwithstanding the potential for self-incrimination, the need for D to respond to a prima facie case of risk of flight was inevitable. The bail legislation would be made unworkable if Courts could not draw inferences from material placed before it by the Crown to which there was no affirmative response. In our view the requirement that a person be released on bail unless there is just cause for continued detention (s24(b) of the Bill of Rights) contemplates the need to balance relevant considerations in determining whether just cause has been established. The specific provisions of the Act, passed to bring a degree of coherence and accessibility to the law of bail, reinforce that general proposition by providing for mandatory and discretionary considerations to be taken into account in determining whether just cause for continued detention has been established.
[110] However the Court held that once the Crown established a prima facie risk of flight, it was necessary for Mr Darwish to revoke that conclusion.
[111] The Court gave leave for further evidence to be adduced on appeal from Mr Darwish. Mr Darwish had initially filed an affidavit in support of his appeal. However that provided little detail as to the circumstances surrounding the obtaining of the British passport. The Full Court summarised the contents of the first affidavit as follows: (at [30])
D does not deny that he used a British passport in an assumed name for the purpose of obtaining entry into New Zealand and departing from this country. He seeks to explain his possession and use of the British passport as follows:
(a) As an Egyptian citizen, he had an obligation to perform national service in the Egyptian army.
(b) In August 1984 he decided to leave Egypt to study in both “Asia and Thailand”. He obtained an Egyptian passport which was valid for six months. The passport was limited in time so he would be required to return to Egypt for conscription.
(c) D objected to serving in the Egyptian army and refused to return to Egypt to perform national service. When his passport expired he was unable to obtain an Egyptian passport or any legitimate travel document.
(d) He obtained a British passport. He then used that British passport.
[112] After the first day of the hearing of the appeal, Mr Darwish filed a further affidavit on the topic of the British passport. In paragraphs 2-8 of that affidavit Mr Darwish said:
[2] In my last affidavit sworn on the 18th of February 2004 I explained the purpose of my obtaining this passport, namely my inability to obtain an Egyptian passport.
[3] I had left Egypt to study, and was given a 6 month permit. When I did not return to do my national service, I was effectively “on the run from” adverse consequences from the Egyptian authorities.
[4] After I left Egypt, I became involved in a relationship with an English woman, not my wife, who agreed to assist me in obtaining another passport so that I could travel. This occurred before I was married to my wife [name omitted].
[5] My English friend obtained the name from a cemetery. It was the name of a real person who had died. She applied for a copy of his birth certificate. Once this was obtained I applied for a passport by post, using my photograph.
[6] This is how I obtained the passport. I did not and do not have access to a group of criminals who are able to access passports. I never paid anyone to get the passport for me. It wasn’t forged but a real passport in the name of a person who was deceased.
[7] I disposed of the passport when I resolved the issue relating to my military service. It could not have been seen by the authorities when they executed a search warrant at my home.
[8] I strongly deny that I have access to any individual or group of persons who are able to supply false passports.
[113] In deciding upon the approach to be taken by the Court to the evidence filed by Mr Darwish, the Court concluded: (at [53])
D cannot explain how he came into possession of the British passport without giving evidence touching upon an essential element of the passport offences. Either he obtained a passport from official sources in the United Kingdom or he stole, or altered a passport or acquired one from the black market. The evidence of D is wholly equivocal as to the provenance of the British passport.
We are of the view that, in seeking bail, it was necessary for D to fully explain the circumstances in which the British passport came to be acquired and used by him. Without a full explanation he could not rebut a prima facie case of risk of flight. The absence of a provision such as s13 of the Canadian Charter in our Bill of Rights militates against a conclusion that s25(d) means either that D ought not to be compelled to give evidence on risk of flight or that any explanation, however implausible it may be, must be accepted at face value.
For those reasons we hold that nothing in the Bill of Rights requires us to treat the evidence of D, on the issue of risk of flight, any differently from the way in which we would, ordinarily, have evaluated the evidence.
[114] Balancing all matters, including the fact that Mr Darwish was unlikely to be tried on the charges against him until 2005, the humanitarian concerns in relation to Mr Darwish, the strength of the Crown case against Mr Darwish in relation to the passport charges and the Court’s view that his flight risk could not be managed by a combination of conditions imposed upon Mr Darwish, the Court concluded that bail should be declined. The Court said further:
We indicated that if D believed he could answer the concerns that led us to that conclusion he has the right to apply for bail again. Detailed evidence would be required to answer our concerns.
[115] Mr Darwish again applied for bail and filed an affidavit dated 27 April 2004 in support of the application. Again he was unsuccessful.
Use of affidavits sworn for bail purposes at trial
[116] Mr Gibson submitted that the evidence contained in the affidavits should be excluded on the grounds that it would be unfair to allow the Crown to use it as part of its case against Mr Darwish. The challenge to the first two affidavits is founded on general principles of unfairness and the New Zealand Bill of Rights Act 1990. In relation to the third affidavit Mr Gibson again called in aid these matters but also relied upon the fact that the third affidavit was filed by Mr Darwish because the Full Court made it clear that detailed evidence would be required to meet the Court’s concerns as to flight risk should Mr Darwish wish to renew his application for bail.
[117] Mr Gibson likened the evidence filed in support of the bail application and appeal as being akin to evidence given on a voir dire. He submitted that this Court should treat the affidavits as if they were evidence given on a voir dire and not allow it to be used against the accused other than to allow cross-examination.
[118] In reply the Crown submits that it is just and fair to admit the affidavits on the following grounds:
(a) the direct relevance of the affidavits to the offences against the
Passports Act 1992;
(b) the three affidavits were voluntarily and freely made and filed by the accused in support of his numerous applications for bail;
(c) no promise, threat or other inducement was offered to the accused
(s20 Evidence Act 1908);
(d) there is no protection or privilege applicable to the accused in filing the affidavit;
(e) the general rule in both civil and criminal cases that any relevant statement made by a party is evidence against him. A statement which contains an admission is also always admissible as a declaration against interest and is evidence of the facts admitted;
(f) the principles that “affidavits or documents which a party has expressly caused to be made or knowingly used as true, in a judicial proceeding, for the purpose of proving a particular fact, are evidence against him in subsequent proceedings to prove the same fact … (Phipson on Evidence, 14th ed. (1990) page 650);
(g) the affidavits also qualify as statements against the accused’s interests pursuant to s9 Evidence Amendment Act (No 2) 1980 and are admissible;
(h) the bail hearings were heard in open Court (s 18 Bail Act 2000); (i) the further matters set out in the decision.
Relevant principles
[119] The right of persons charged to be released on reasonable terms and conditions unless there is just cause for continued detention is one of the fundamental rights recognised in our law, and has been given statutory recognition in s 24(b) of the New Zealand Bill of Rights Act. So too the rights under s 25(c) and
(d) relating to minimum standards of criminal procedure. In dealing with Mr Darwish’s appeal, the Full Court acknowledged that in order to pursue his right under s 24(b) of the New Zealand Bill of Rights Act, Mr Darwish was in effect compelled, not by force of law or arms, but by the persuasive burden cast upon him by the Crown’s evidence, to address the substance of the charges against him under the Passport Act.
[120] In considering this issue, the Full Court expressed a view as to how the provisions of s 25 of the Bill of Rights Act impacted upon the approach the Court should take to the evidence. The Court did not however decide how that evidence could be used at trial.
[121] This issue is one of some importance. Mr Darwish’s case is not unique in the sense that the issues that a Court is called upon to consider in a bail hearing will often cross over or substantially intersect with the issues for trial on the substantive charges.
[122] At a bail hearing factors often taken into account by the Court include the risk of reoffending whilst on bail and the strength of the Crown case. In order to address these matters the accused may well need to file evidence which may later be relevant at trial, and which potentially could be used against the accused. If the Crown is correct as to the uses to which the evidence filed in support of bail may be put, this would act as a considerable fetter upon the ability of accused persons to put forward his or her case for bail.
[123] The type of issue raised in respect of these affidavits is squarely addressed in the Canadian Charter of Rights and Freedoms but not in the New Zealand Bill of Rights Act. Sections 11(c), (d) and (e) of the Canadian Charter provide:
Proceedings in criminal and penal matters.
11. Any person charged with an offence has the right
…
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
[124] Section 13 of the Canadian Charter states:
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.
[125] It is not in my view conclusive of the issue that the New Zealand Bill of Rights Act omits a provision equivalent to s 13. The common law has developed a similar rule, although much narrower in its scope. This rule has been developed in relation to evidence given on a voir dire to challenge the voluntariness of an earlier statement. The relevant rules in relation to the admissibility of evidence given on voir dire are summarised in Garrow & Turkington, Criminal Law in New Zealand, as follows: (at APPVII.24 “Status of evidence given on a voir dire”)
(i) The prosecution is not entitled to adduce evidence before the jury of the testimony given by the accused on a voir dire; this is so whether the evidence has been excluded or admitted: Wong Kam-ming [1979]
2 WLR 81; [1979] 1 All ER 939; Brophy [1981] 2 All ER 705 HL.
(ii) Where, however, a statement is admitted on the voir dire as being voluntary and the accused testifies before the jury as to the reliability of admissions in his statement, he may be cross-examined on the discrepancies between his testimony on the voir dire and his evidence on the general issue; the Judge must, however, ensure that this right of the prosecution to cross-examine or rebut is not used in a way which is unfair or oppressive: Wong Kam-ming (above).
(iii) An accused may be cross-examined on his previous statement (subject to limits placed by the Judge in the interests of fairness) if the accused gives evidence that it has been declared inadmissible: Wong Kam-ming (above).
[126] The rationale for these rules was well articulated in R v Brophy (above) at
709.
If such evidence, being relevant, were admissible at the substantive trial, an accused person would not enjoy the complete freedom that he ought to have at the voir dire to contest the admissibility of his previous statements. It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voir dire of any improper methods by which a confession or admission has been extracted from him,
for he can almost never make an effective challenge of its admissibility without giving evidence himself. He is thus virtually compelled to give evidence at the voir dire, and if his evidence were admissible at the substantive trial, the result might be a significant impairment of his so-called
‘right of silence’ at the trial. The right means ‘No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere’; see R v Sang [1979] 2
All ER 1222 at 1246, [1980] AC 402 at 455 per Lord Scarman. The word
‘compelled’ in that context must, in my opinion, include being put under pressure. So long as that right exists it ought not to be cut down, as it would be if an accused person, who finds himself obliged to give evidence at the voir dire, in order to contest a confession extracted by improper means, and whose evidence tends to show the truth of his confession, were liable to have his evidence used at the substantive trial.
[127] Thus, statements made in the course of a voir dire are not generally admissible. The rationale behind this rule is the need to provide the accused with a proper opportunity to challenge the admissibility of evidence without being limited in his or her ability to do so by fear of self-incrimination. An accused person would not make full and frank disclosure at a voir dire if that testimony could be later adduced to incriminate them in a subsequent judicial proceeding.
[128] So too with bail hearings. At a bail hearing, a Court has a very wide discretion as to what evidence it may receive: s 20 Bail Act 2000. One of the purposes behind this rule is to allow an accused to put before the Court such information as is available to support the application for bail. As in a voir dire, an accused person should not feel inhibited in disclosing anything relevant to their application for bail. This is important for the proper administration of justice.
[129] However against this must be balanced the concern that should an accused be able to present sworn evidence at a bail hearing and then later to contradict that evidence at trial without fear of challenge, that would have the potential to bring the administration of justice into disrepute. This concern can be met by the proviso that the evidence contained in the affidavits is not to be adduced by the Crown at hearing, other than to challenge the giving of contradictory evidence should the accused give evidence at trial in a manner inconsistent with the evidence contained in the affidavits. I accept the Crown’s submission that the evidence is relevant and would in the ordinary course be admissible. However for reasons of public policy and fairness I am of the view that the evidence should be excluded except for use in cross-examination in relation to contradictory evidence of the accused.
[130] Accordingly I order that the three affidavits dated 18 and 26 February 2004, and 27 April 2004 affirmed by Mr Darwish in support of various bail hearings are inadmissible. Mr Darwish may however be cross-examined on discrepancies between his evidence at trial and the affidavit material. The trial Judge is to ensure that the right to cross-examine on the affidavit material is not used in an oppressive or unfair manner.
CROWN’S APPLICATION TO AMEND INDICTMENT
[131] I have concluded that in respect of Counts 1 and 2 there is insufficient evidence upon which a properly directed jury could convict Mr Darwish. However in respect of Count 3, I have concluded that Mr Darwish’s s 347 application cannot succeed. I have concluded that Counts 5 and 6 are time barred.
[132] The Crown has applied to amend the indictment by removing Counts 5 and 6 and, if the Court concludes that charges laid pursuant to s 12C of the Misuse of Drugs Act cannot be sustained, amending Counts 1 to 3 to charges laid under s 10 of the Misuse of Drugs Act 1975. The form of the amended indictment attached to the application replaces Counts 1 to 3 with two Counts under s 10 of the Misuse of Drugs Act 1975. The conspiracy charge, the subject of the present Count 3, has been removed. I am unsure if that is a deliberate omission.
[133] In respect of Counts 1, 2 and 3, the Crown submits that if the Court considers that these charges cannot be sustained due to the jurisdictional challenge under s 12C, then allowing the Crown to amend the charges to refer to s 10 of the Misuse of Drugs Act 1975 rather than s 12C would be conducive to the ends of justice. The case alleged against the accused remains the same, whether he is prosecuted under s
12C or s 10 of the Misuse of Drugs Act 1975. Further, the accused would face the same number of charges and in fact would be liable on conviction to a lesser penalty. There would be no prejudice to the accused in conducting his defence. The Crown are not seeking to lead additional evidence in support of the amended charges, nor is the Crown recasting its case in a manner that would embarrass the accused in his defence. The application is brought well in advance of trial and will not prevent the trial proceeding on 20 June 2005. Finally, the Crown submits that it would be
contrary to the interests of justice to allow the accused to evade justice on serious drug charges for which there is a compelling Crown case, when the law of New Zealand anticipates such offenders being prosecuted under the domestic law of this country, in the interests of deterring the international drug trade.
[134] Mr Gibson opposes the application to amend the indictment. Mr Gibson submits that it is not conducive to the ends of justice to permit an amendment to Counts 1, 2 and 3 of the indictment for the following reasons:
(a) It has been in excess of 15 months since the accused was arrested and charged.
(b) On 28 July 2004 the s 12C informations were laid. (c) The Solicitor General’s consent was required.
(d) The Crown submissions at the substantive pre-trial hearing were directed to upholding the indictment in its existing form.
(e) The trial date has been set for 20 June 2005.
Relevant principles
[135] The principal consideration in determining an application to file an amended indictment under s 345D of the Crimes Act 1961 is whether the ends of justice require it: R v G (CA65/03, 7 June 2003). The Court has to take into account the interests of all parties and balance the public interest as well as the rights of the accused to a fair and speedy trial: R v Martin (CA214/00, 23 November 2000). In Martin, it was said that:
The crucial consideration in both situations is prejudice to the accused person. The fact that an accused person may have conducted his case on one basis and been able to recast to meet charges that are amended during trial is determinative.
[136] In R v G the Court of Appeal held that the discretion had been properly exercised to allow the filing of an amended indictment charging a conspiracy to commit specific offences, where the trial of the counts alleging those specific offences had been severed, and where the conspiracy count was necessary if the full extent of the alleged offending was to be placed before the Court. In Van Den Bogard v R [1999] 16 CRNZ 328, it was held that an application should be refused where the defendant was entitled to a discharge under s 347 on both the original indictment, and the proposed amended indictment.
[137] In all of the circumstances I am satisfied that it is conducive to the interests of justice to allow the amendment in respect of Counts 1 and 2. I am not satisfied that the accused would be prejudiced by the amendments. The substance of the charge remains the same, arising out of the same alleged conduct. The amendment has been signalled well in advance of trial, the application to amend having been filed on 31
March 2005, and having been argued on 7 April 2005. Finally, I accept the Crown’s submission that it is not in the interests of justice to discharge Mr Darwish on a jurisdictional issue where the alleged offending is so serious, and when the law of New Zealand expressly provides for prosecutions in respect of such alleged conduct.
[138] The grounds upon which the Crown brings its application in respect of the passport charges, is that the informations were filed outside time.
[139] I am satisfied that it is appropriate to amend the indictment to remove Counts
5 and 6. There can be no prejudice to the accused in allowing the deletion of Counts
5 and 6 on the ground that they are time barred.
[140] In respect of Count 3, as I have declined the s 347 application for discharge, I request that the Crown clarify whether it wishes to proceed with its application to amend the indictment by removing Count 3 which has been omitted in the amended indictment.
[141] With regards to the money laundering counts (Counts 12-22) I note that some relate to offending before and after 1 October 2003, yet all are charged under s 257A of the Crimes Act. Section 257A was repealed on 1 October 2003 and replaced by
s 243. Clarification is therefore sought on Counts 18, 19, 20 and 21 as they appear to charge the accused under s 257A, yet relate to offending at a time when that section was not in existence.
SUMMARY
[142] For convenience, I summarise the position below:
(a) Counts 1-2. Insufficient evidence to go to the jury. Application to amend these counts to charges under s 10 granted.
(b) Count 3. Section 347 application declined. (c) Count 4. Section 347 application declined.
(d) Counts 5-6. Time barred. Application to remove these counts from the indictment granted.
(e) Severance application granted. (f) Judge alone application granted.
(g) Section 344A application in relation to intercepted communication granted in part. Communications intercepted pursuant to the first warrant are admissible only on Count 4. Communications intercepted pursuant to the second, third and fourth warrants admissible on all counts except Count 3, 5, 6, 7, 8, 9 and 10.
(h) Section 344A application in relation to bail affidavits declined, subject to the proviso that the Crown may cross-examine Mr Darwish on discrepancies between his evidence at trial and the affidavit material.
(i) Application to amend Counts 1 and 2 granted. Leave is reserved for clarification as to Count 3 of the former indictment which has been
omitted in the draft amended indictment. Likewise, clarification is sought on Counts 18, 19, 20 and 21. Crown is to file a memorandum in clarification within 3 working days of this decision. The accused are to file any memorandum in reply within a further 3 working days. I will deal with any matter arising on the papers unless counsel request to be heard.
H D Winkelmann J
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