R v Geldard - [2020] NZHC 925

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-000277

[2018] NZHC 925

THE QUEEN

v

NADINE GELDARD

Hearing: 3 May 2018

Appearances:

B R Northwood for Crown

M W Ryan and B E Colville for Defendant

Judgment:

3 May 2018

ORAL JUDGMENT OF JAGOSE J

Solicitor/Counsel:
Meredith Connell, Auckland M Ryan, Barrister, Auckland

R v GELDARD [2018] NZHC 925 [3 May 2018]

Introduction

[1] The Crown applies to admit evidence in the forthcoming trial of the defendant, Ms Geldard, of the fact another person, Toni Clare Nikora, has been convicted of an offence. If admissible, s 49 of the Evidence Act 2006 provides the evidence is conclusive proof Ms Nikora committed the offence.

[2] The Crown contends Ms Nikora’s commission of particular offences is relevant in the defendant’s trial.1 That is not disputed by Ms Geldard, whose counsel, Mark Ryan, nonetheless argues Ms Geldard would be prejudiced by the jury’s use of the evidence to conclude Ms Geldard also is guilty.

[3] On the present application, I primarily must decide whether the probative value of evidence of Ms Nikora’s conviction is outweighed by the risk the evidence will have an unfairly prejudicial effect on the proceeding.2

Background

[4] Ms Geldard faces nine charges brought under the Misuse of Drugs Act 1975: one, a representative charge she supplied methamphetamine to others on various dates in the eight months commencing 1 August 2015; the others, she had methamphetamine in her possession for supply to others on dates during that period.

[5] Ms Nikora was also charged with supplying methamphetamine to others, and possessing methamphetamine for supply. She was to be tried together with Ms Geldard and others. Before trial, Ms Nikora pleaded guilty and was convicted. In the event, on Ms Geldard’s illness during the trial, her charges were severed from that trial. She is now to be tried separately in August 2018.

[6] Before severance of Ms Geldard’s charges, the Crown sought to present evidence of Ms Nikora’s convictions as conclusive proof she committed those

1 Evidence Act 1996, s 7.
2 Evidence Act 2006, s 8.

offences.3 In his ruling of 23 August 2017, Davison J ruled the evidence was admissible. In a prefatory footnote, the Judge recorded:

On 18 August 2017 I made orders severing Ms Geldard’s charges from those of the other defendants. At the time the orders were made, this application had already been argued and Ms Geldard’s counsel had made submissions in relation to the matter. The Crown and Mr Ryan for Ms Geldard agreed notwithstanding the severance orders, that in the circumstances I should proceed to deliver a judgment that included and dealt with the issues as they applied to and affected Ms Geldard. Accordingly,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Geldard

Details

AGLC: R v Geldard [2018] NZHC 925
Case: [2020] NZHC 925
Decision Date: 3 May 2018

CaseChat Overview and Summary

The case of R v Geldard involved the Crown applying to admit evidence of another individual's conviction in the trial of the defendant, Nadine Geldard. The Crown argued that the conviction of Toni Clare Nikora, who had been found guilty of drug supply offences, was relevant and should be used as conclusive proof in Geldard's trial for similar offences. Geldard opposed the admission of this evidence, contending that it would unfairly prejudice her trial by potentially leading the jury to conclude she was also guilty. The court had to decide whether the probative value of Nikora's conviction outweighed the risk of unfair prejudice to Geldard.

The High Court of New Zealand considered the legal framework provided by the Evidence Act 2006 and the New Zealand Bill of Rights Act 1990. Section 49 of the Evidence Act allows for the admission of a person's conviction as conclusive proof of their guilt for the offence. However, Section 8 of the Act provides that evidence may be excluded if its probative value is outweighed by the risk of unfair prejudice. The court also considered the Court of Appeal's decision in Broome v R, which clarified that the purpose of Section 49 is to prevent the criminal system from being vexed by collateral challenges to concluded determinations of criminal responsibility.

The court found that the evidence of Nikora's conviction was relevant and had probative value in establishing that Nikora had committed the offences in question. The court rejected Geldard's argument that the evidence would unfairly prejudice her trial, holding that any potential prejudice could be addressed through appropriate directions and warnings to the jury. The court concluded that the probative value of the evidence was not outweighed by the risk of unfair prejudice and ruled that evidence of Nikora's conviction was admissible in Geldard's trial.

The court's final order was that evidence of the fact that Toni Clare Nikora had been convicted of the offences set out in the Crown's notice dated 7 August 2017 was admissible in the proceeding against Nadine Geldard.

Orders