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, this judgment will operate as a pre-trial ruling in relation to Ms Geldard’s separate trial.

[7]    Ms Geldard sought leave to appeal the ruling. Despite the agreement recorded by Davison J, the Crown took the view the Court of Appeal lacked jurisdiction to hear the appeal against “an in-trial ruling as to the admissibility of evidence”, and opposed the grant of leave. But the Crown also concluded the pragmatic and preferable course was effectively to reissue its notice – now as an application for a pre-trial order relating to the admissibility of evidence for Ms Geldard’s forthcoming jury trial.4 Mr Ryan does not oppose that course (but, as said, opposes grant of the application). I apprehend, on indication of the Crown’s course, Ms Geldard abandoned her application for leave to appeal.

The law

[8]    The presently material provisions of the Evidence Act 2006 (the “Act”) are section 7, 8, and 49:

7Fundamental principle that relevant evidence admissible

(1)All relevant evidence is admissible in a proceeding except evidence that is—

(a)    inadmissible under this Act or any other Act; or

(b)    excluded under this Act or any other Act.

(2)Evidence that is not relevant is not admissible in a proceeding.

(3)Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

…

3      Evidence Act 2006, s 49.

4      Criminal Procedure Act 2011, s 101.

8General exclusion

(1)In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a)    have an unfairly prejudicial effect on the proceeding; or

(b)    needlessly prolong the proceeding.

(2)In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

…

49    Conviction as evidence in criminal proceedings

(1)Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.

(2)Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—

(a)    permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and

(b)    if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.

(3)A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.

[9]    In Broome v R, delivered after Davison J’s ruling, the Court of Appeal observed (with reference to the Supreme Court’s decision in Morton v R)5:6

The purpose of s 49 is to provide a convenient means of proving offences already established to the criminal standard of proof. This prevents the criminal system being “vexed by collateral challenges to concluded determinations of criminal responsibility, with potentially inconsistent outcomes”.

5      Morton v R [2016] NZSC 51, [2017] 1 NZLR 1 at [91] per Elias CJ.

6      Broome v R [2017] NZCA 575 at [15] (internal reference omitted).

[10]   The Court of Appeal held s 49 is to be interpreted in light of fair trial rights recognised by s 25 of the New Zealand Bill of Rights Act 1990 (the “BoRA”).7 By reference to s 8 of the Act, the Court of Appeal also settled inconsistency in decisions of this Court with decisions of its own. The Court of Appeal held “the fact that the conviction evidence would close off an otherwise live issue that the defendant may have raised will not, of itself, result in unfair prejudice”.8 Last, it noted decisions to be made “in exceptional circumstances” under s 49(2) are matters for the trial judge.9 At least in the  present  pre-trial  admissibility  application  context,  that  follows  from s 49(2)’s opening words “if the conviction of the person is proved under [subs 1]”.

The Crown’s ‘notice’ and application

[11]   If conviction evidence is to be given in criminal proceedings, the Crown “must first inform the Judge of the purpose for which the evidence is to be offered”.10 The Crown’s notice of 7 August 2017, which was the subject of Davison J’s ruling, says the evidence is to be offered “to establish that Ms Nikora supplied methamphetamine to another person”, essentially as a step in establishing at trial that other person to be Ms Geldard. The Crown’s proposed evidence is not of the particulars of those convictions, as to the identity of those others.

[12]   As evidence with a tendency to prove or disprove something of consequence in determination of the charges against Ms Geldard, the evidence is plainly relevant, and therefore admissible at trial unless inadmissible or excluded.11 The Crown wishing to adduce that evidence at Ms Geldard’s trial, and believing its admissibility may be challenged, now applies for a pre-trial order under s 101 of the Criminal Procedure Act 2011 the evidence is admissible.

7 At [16].

8 At [26].

9 At [40].

10     Evidence Act 1996, s 49(3).

11     Evidence Act 1996, s 7.

Ms Geldard’s opposition

[13]   Mr Ryan opposes admission of the proposed evidence on grounds Ms Geldard would be prejudiced by the jury’s possible conclusion the proposed evidence is evidence Ms Nikora supplied methamphetamine to her on the dates specified.

[14]   Mr Ryan notes Morton’s requirement s 49’s application is to be determined “on a case by case basis”,12 and says the case now faced by Ms Geldard alone is different from that on which Davison J ruled. Mr Ryan’s point is – whereas at the previous trial there were a number of defendants, supply to any one (or more) of whom Ms Nikora’s convictions may have been evidence – at Ms Geldard’s trial, the only inference can be supply is to her.

[15]   Thus Mr Ryan says Ms Geldard is undermined in her ability to present a defence (a minimum  standard of criminal  procedure,  safeguarded  by the  BoRA’s s 25(e), although subject to s 5’s “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”).

[16]   Mr Ryan sees the Court of Appeal’s decision in Broome as leaving open reliance on R v Bouavong (one of Broome’s ‘inconsistent’ decisions).13 In such reliance, he submits the proposed evidence established from Ms Nikora’s guilty pleas is unfairly prejudicial, “as untested by any Court”; and of marginal probative value, as evidence of the contended transactions is nonetheless to be adduced by the Crown.

Analysis

[17]   I do not read Broome to have left the door open in the way Mr Ryan contends. Broome sets itself against diminution of evidence of convictions obtained on guilty pleas. It is precisely addressing the materiality of the guilty plea convictions sought to be relied on in Bouavong and Tanginoa,14 as inconsistent with the Court of Appeal’s decisions in McNaughton15 and Taniwha.16 Taniwha was also concerned with guilty

12     Morton v R, above n 5, at [70].

13     R v Bouavong [2012] NZHC 524.

14     R v Tanginoa [2012] NZHC 3121.

15     McNaughton v R [2011] NZCA 588.

16     R v Taniwha [2012] NZCA 605 (mis-cited as “NZSC” in Broome (above n 6) at fn 6).

plea convictions. Indeed, Broome is itself applying Morton, in which Elias CJ identified s 49’s policy objective, as I have recited. Mr Ryan contends for a much reduced policy role for s 49, requiring a specific trigger for its employment. In light of the appellate authority binding on me, I cannot so interpret the section.

[18]   For the purposes of s 49, subject to s 49(2)’s “exceptional circumstances”, a conviction is a conviction. That Ms Nikora’s convictions were obtained on her guilty pleas renders them no less susceptible to admission under s 49 than convictions entered after trial. In either case, they are convictions entered by a judge.17

[19]   Neither do I accept the evidence is of marginal probative value. While its admission may not contribute materially to any reduction in the amount of evidence otherwise to be adduced, it establishes a relevant particular – that Ms Nikora committed the identified offences, which begs the question of supply to whom.

[20]   Mr Ryan also objects to admission of the certificates of conviction as effectively constituting Ms Nikora’s statement in terms of s 27, for which no ground has been made for its admission. However, I do not think that is an appropriate characterisation of the certificate of conviction, which is no statement at all, but the establishment of a fact – namely, Ms Nikora’s convictions.

[21]   Further, in terms of s 25 of the BoRA, admission of the conviction evidence does not preclude or even significantly attenuate any defence Ms Geldard may wish to pursue. The fact of Ms Nikora’s conviction alone is a long way short of anything approaching Ms Geldard’s guilt.

[22]   I also see no relevant or material change of circumstance to lead me to a decision different from that of Davison J. That Ms Geldard is now a lone defendant is not material: the evidence was always only Ms Nikora supplied methamphetamine on specified dates; whether its recipient was Ms Geldard, or another person, was in issue prior to severance of her charges in the joint trial, and remains in issue on their separate trial.

17     Criminal Procedure Act 2011, s114(1).

[23]   Last, as Davison J ruled, any inherent prejudice that may arise from the inference with which Mr Ryan is concerned can, in my view, appropriately be addressed by direction and warning to the jury. I see no unfair prejudice in admitting the proposed evidence of Ms Nikora’s convictions.

Result

[24]   I order evidence of the fact Toni Clare Nikora has been convicted of the offences set out in the Crown’s notice dated 7 August 2017 is admissible in the present proceeding.

—Jagose J