R v Guthrie HC Auckland CIV 2007-090-3989

[2008] NZHC 2301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-090-3989

THE QUEEN

v

GINA GUTHRIE

Hearing:         1 May 2008

Appearances: K Glubb for the Crown

M Pecotic for the accused

Judgment:      1 May 2008

(ORAL) RULING OF STEVENS J

(Application by defence under s 49 of the Evidence Act 2006)

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

M Pecotic, PO Box 6379, Wellesley Street, Auckland

R V GUTHRIE HC AK CRI 2007-090-3989  1 May 2008

Introduction

[1]      Gina Guthrie (the accused) is on trial for one charge of possession of the Class A controlled drug methamphetamine for the purpose of supply, charges of possession of equipment, precursor substances and material capable of being used in and for the manufacture of methamphetamine and intending the same to be used for that purpose, as well as a charge of possession of pipes for the commission of an offence under the Misuse of Drugs Act 1975.   At the end of the Crown case, the accused elected to give and call evidence from two witnesses on her behalf.

[2]      One  such  witness  is  Debbra  Lucille  Whitley  who  is  currently  serving  a lengthy term of imprisonment following her conviction on various charges under the Misuse of Drugs Act 1975.  Defence counsel seeks, during the evidence-in-chief of Ms Whitley, to refer to the fact that she has been convicted of these charges.

[3]      Before calling Ms Whitley, Ms Pecotic for the accused very properly drew my attention to the provisions of s 49 of the Evidence Act 2006 (the Act).   She specifically referred to the requirements of s 49(3) of the Act which provides that in a criminal case, a party 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 that evidence is to be offered.

[4]      In  the  course  of  a  chambers  hearing,  Ms  Pecotic  complied  with  this requirement by informing me of the purposes for which the evidence of the convictions was to be offered in the course of Ms Whitley’s evidence

Purpose of proposed evidence

[5]      Ms Pecotic proposed to lead evidence of the fact that Ms Whitley had been sentenced on 25 September 2007 for a range of offences under the Misuse of Drugs Act.  These convictions included the offence of possession of methamphetamine and amphetamine for the purpose of supply, arising from offending which took place on

9 June 2005.  Ms Pecotic submitted that the purpose of referring to these convictions

was not to attack Ms Whitley’s veracity.   She sought in effect to put Ms Whitley forward as a witness of the truth of the matters about which she would give evidence.

[6]      The offence date is relevant to Ms Whitley’s claim that she dropped off some items, including equipment, precursor substances and materials capable of being used for the manufacture of methamphetamine at the accused’s home at 7/2 Hulme Place, Henderson, in May or June 2005.   Her evidence will be that she simply delivered the items, which were in boxes and other containers, to the accused’s address for safekeeping, then left and never returned again.  Apparently, the Police arrested her shortly after she delivered the items to the accused.

[7]      Ms Pecotic submitted that a legitimate or proper purpose of referring to the offence of 9 June 2005 would be to provide a credible reason why Ms Whitley did not return to retrieve the items.

[8]      It will also be part of the defence case that all the items involved belonged to Ms Whitley and that the accused had nothing to do with them.   Hence, another purpose of the evidence would be to demonstrate that the witness Ms Whitley was involved in the methamphetamine scene to a significant extent.  The convictions that the defence seeks to give in evidence would establish this fact.

Statutory provisions

[9]      Section 49(1) provides:

(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.

[10]     By the express terms of s 49(1) it is necessary for me to consider whether the evidence of the convictions of Ms Whitley are excluded by any other provision of the Act.  The operation of the principles in s 49 of the Act and the inter-relationship between s 49(1) and (3) is succinctly described in the Evidence Act 2006:  Act and Analysis 2007, Mahoney, McDonald, Optican and Tinsley at EV49.03 as follows:

Section 49(1) provides that evidence of a conviction will be admissible only where it is not excluded by any other provision in the Act.   Furthermore, s 49(3) requires a party who wishes to offer evidence of a convict to first inform the judge of the purpose for offering the evidence.  These are more onerous  requirements than  that in  s 47(1),  which  requires  only  that  the conviction be relevant to an issue in the proceeding.  Although s 49(3) will require the party introducing the evidence to identify which issue in the case it is relevant to, the purpose of offering the evidence will also enable the judge   to   consider   whether   the   evidence   is   excluded   by   any   other admissibility rule.  As such, subs (3) clearly underlines the provision in subs (1) that s 49 is subject to the other provisions in the Act  for example, if the conviction is offered for the purpose of attacking the person’s veracity, then the evidence would have to satisfy the veracity rules (ss 37-39) before proof of the conviction could be conclusive proof that the person committed the offence for which they had been convicted.

Crown submissions

[11]     For the Crown, Mr Glubb accepted that the purpose of the defence seeking to give evidence of Ms Whitley’s convictions under the Misuse of Drugs Act was not to attack her veracity.  Further, counsel accepted that there could be no prejudice to the accused because the application to lead evidence of the convictions was made by the defence.

[12]     Mr Glubb submitted that, from the Crown perspective, and as far as he was aware, there was no proper basis to suggest that, to the limited extent that Ms Pecotic wished to refer to the convictions, they should be excluded by any other provision of the  Act.    Accordingly,  the  Crown  did  not  oppose  the  making  of  a  direction permitting Ms Pecotic to lead evidence from Ms Whitley of the convictions concerned.

Directions

[13]     To the extent that a direction is required, I direct that, having complied with the requirement of s 49(3) of the Act, Ms Pecotic is free, when leading the evidence of Ms Whitley, to refer to the fact of that witness’ convictions under the Misuse of Drugs Act on 25 September 2007.  In particular, she may refer to the fact that one of those charges was for the possession and supply of methamphetamine and amphetamines with an offence date of 9 June 2005.

[14]     There will be a direction accordingly.  Leave is reserved for either party to

apply further.

Stevens J