R v Dunn (Marsh) HC Auckland CRI 2006-004-005881

[2008] NZHC 2251

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-005881
CRI 2006-085-007583
CRI 2007-004-005914

CRI 2007-004-005822

THE QUEEN

v

DWAYNE ALLAN MARSH

Hearing:         19 March 2008

Appearances: D McNaughton and B Tantrum for Crown

M Kennedy for Accused Marsh

Judgment:      20 March 2008 at 4:10PM

(RESERVED) JUDGMENT (NO. 3) OF ANDREWS J [Section 344A Application]

This judgment was delivered by me on 20 March 2008 at 4:10pm

pursuant to r 540(4) of the High Court Rules.

………………………………………..

Registrar/Deputy Registrar

Date:   ………………………………

Solicitors:           Meredith Connell, PO Box 2213, Auckland

Counsel:            M A Kennedy, PO Box 6955, Auckland

R V DUNN (MARSH) HC AK CRI 2006-004-005881  20 March 2008

Introduction

[1]      Mr Marsh is, with seven others, charged with offences under the Misuse of Drugs Act 1975, of conspiracy to manufacture the Class A controlled drug (methamphetamine), supplying material, offering to supply methamphetamine, and conspiring to supply methamphetamine.

[2]      The Crown has applied for an order under s 344A of the Crimes Act 1961, that references to the Headhunters gang in evidence to be given for the Crown at trial is admissible.  The application was made following an indication from counsel for Mr Marsh, Ms Kennedy, that she challenged the admissibility of the evidence.

[3]      References to the Headhunters gang appear in the Crown’s evidence in two ways:

a)       The Crown has briefed evidence from a Mr Coyle.  As set out in his brief of evidence, Mr Coyle’s evidence is that he came to know members of the Headhunters gang, and became a prospect member. He refers to Mr Marsh as being a patched member.  He also refers to another accused, David Dunn, as being a patched member.

Mr Coyle also refers to other Accused, but not as being members or associate members of the Headhunters gang.

b)There are references to the Headhunters gang in briefs of evidence for other witnesses.  In particular, Detective Karl gives evidence as to the execution of a search warrant at the address of Ms Wendy Marsh (Mr Marsh’s sister, and also an Accused) and as to a video interview of Ms Marsh.

[4]      It is relevant to note that a substantial part of the Crown evidence is in the form of transcripts of telephone calls and text messages alleged to be between the Accused, and between the Accused and others.   Mr McNaughton advised that the Crown will be required to prove that the voices heard in the intercepted telephone

conversations are those of the Accused and that the Accused communicated and were connected with each other in the alleged manner.

Submissions

[5]     Mr McNaughton acknowledged that it is not the Crown case that the Headhunters gang, itself, was involved in the alleged offending.   However, he submitted that the central participants in the alleged offending are, or were, members and associates of the Headhunters gang, and it is essential to the Crown case that the connections and relationships between the accused are proved.   Their common membership of and association with the Headhunters gang is a substantial part of explaining their connection – that they are not just a random group of individuals telephoning  and  texting  each  other.    The  common  membership  and  association shows, he submitted, an underlying connection.

[6]      Mr McNaughton acknowledged that there is a prejudicial effect in identifying Mr Marsh with the Headhunters gang, but submitted that the probative value of the evidence concerning the gang lay in establishing the identification of speakers in telephone  conversations  and  explaining  the  connection  between  the  accused. Further, the references to the Headhunters gang, and gang patches, in the evidence of witnesses other than Mr Coyle, is probative in that it supports Mr Coyle’s evidence. Accordingly, he submitted, the probative value of the evidence outweighs any prejudicial effect.

[7]      Ms Kennedy submitted that there is no probative value in any of the evidence referring to the Headhunters gang.  Mr Marsh’s membership is totally coincidental, given that he is charged not in his capacity as a member of the gang, but as an individual, as are the other Accused.

[8]      Ms Kennedy submitted that the references to the Headhunters gang have no probative value in proving the identity of any of the speakers in telephone conversations, or in explaining any connection between any of the Accused.   She submitted that Mr Coyle’s evidence could be given without any reference to the Headhunters gang and still be presented for the purpose outlined by the Crown.

[9]      Against that, she submitted that the references to the Headhunters gang are highly prejudicial.   When that is weighed against the absence of probative value, they are inadmissible.

Discussion

[10]     Both counsel referred to the judgment of the Court of Appeal in R v Q1.  The Court considered whether evidence of the appellants’ association with the Black Power and Mangu Kaha gangs was admissible.   The Court found that that evidence (which was to be given together with other evidence as to the gang’s drug-dealing practices) was probative.  The Court went  on to say at [14] and [15]:

[14]     On the other hand, the evidence … is also highly prejudicial.  The level of community feeling concerning gang behaviour is such that there is certainly a risk that a jury will decide that evidence of the appellants’ links to the two gangs, coupled with the gangs’ drug dealing practices, would be sufficient, without more, to prove that the appellants had cannabis at the place at which they resided for the purposes of supply.  The true, confined relevance of the evidence concerning gang behaviour in particular might well be lost sight of by the jury in those circumstances.  In that event there would be serious prejudice to the appellants.

[15]      The decision on whether or not the evidence is to be excluded in those circumstances must be made according to whether its prejudicial effect outweighs the probative value of the evidence.  … We also consider that the prejudicial effect can be diminished to some extent by a strong direction from the trial Judge as to its limited relevance.  Having regard to all these factors, in [Q’s] case we conclude that the probative force derived from the evidence … which prima  facie is  admissible  against him outweighs the prejudicial effect of …

[11]     The distinction between Q and the present case is that there, the evidence of gang membership was being considered in conjunction with other evidence as to the gang’s drug-dealing practices.   It was clearly part of the Crown case that the appellants’ involvement in the alleged offending was part and parcel of their gang membership.

[12]     Here, membership of or association with the Headhunters gang is, as Mr

McNaughton submitted, relevant only to explaining the relationships or connections

1   R v Q CA 389/03 5 April 2004

between the accused, and to support Mr Coyle’s evidence in relation to certain persons.

[13]     In those circumstances, the probative value of the evidence is not as great as that of the evidence considered in Q where the “membership” evidence was not to be given in isolation.  I have concluded that the purposes of explaining the connection and relationships, and of supporting Mr Coyle’s evidence in respect of the persons to whom he refers, could as well be achieved if the label “Headhunters gang” were not used.  Where it is necessary to do so, Mr Coyle could refer simply to a “group”.

Result

[14]     The references to the Headhunters gang in Mr Coyle’s evidence, and that of other witnesses, are not admissible.   If necessary, the words “Headhunters gang”

should be replaced by a neutral term such as “group”.

Andrews   J