R v Harland

[2017] NZHC 901

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-9435 [2017] NZHC 901

THE QUEEN

v

STEPHEN JAMES HARLAND

Hearing:	5 May 2017
Appearances:	S L McColgan and K Ashton for Crown R Harrison for Defendant
Reasons Ruling:	5 May 2017

REASONS FOR

PRE-TRIAL RULING NO.1 OF FOGARTY J

[ADMISSIBILITY OF INTERCEPTED COMMUNICATION]

This judgment was delivered by Justice Fogarty on

5 May 2017 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

Copy:

R Harrison, Blenheim

R v HARLAND [2017] NZHC 901 [5 May 2017]

Reasons

[1]      Mr Harland, the defendant, faces a charge of possession of methamphetamine for the purposes of supply.

[2]      The essential facts of the case are that the defendant was involved in the transportation of methamphetamine from Auckland to Christchurch. The draft summary of facts records that Mr Harland met with an associate, Mr Catley, in Auckland. He was given a rental car to drive to the South Island. His associate placed a bag containing a shoe box in the back seat of the vehicle. The defendant was told to drive to Christchurch, at which point his associate would take delivery of the box.

[3]      The defendant, car and box were eventually intercepted. Within the box, Police found a quantity of methamphetamine. This is the methamphetamine for which the defendant faces his charge.

Issue

[4]      The Crown wish to put in evidence an intercepted conversation between the defendant and his brother on the subject of sausages.  The conversation took place about a week before the defendant began his trip in the rental car.  The Crown’s case is that the conversation is not in fact about sausages but is rather about methamphetamine.

[5]      The defendant opposes the admissibility of the evidence on the grounds it is unfairly prejudicial and therefore should be excluded under s 8 of the Evidence Act

2006.

The Conversation

[6]      I briefly outline the intercepted conversation. It begins with the defendant and his brother discussing the defendant’s travel arrangements. The relevant part of the conversation arises when the defendant is asked by his brother whether he brought “any sausages down” on his journey. The defendant did not. The brothers then discuss  the  future  procurement  of  sausages.  The  defendant  suggests  he  will  be

“grabbing them on the way up”. His brother mentions talking with “the butcher” keen on getting “a few bags of sausages”, for which he will pay “all cash”. The defendant talks about having “orders coming out of my ears”. He tells his brother he will “see how many I can get anyway, first” and “divvy it up”.

[7]      The Crown suggests that “sausages” is a pseudonym for methamphetamine and therefore the phone call amounts to circumstantial evidence of the defendant’s completion of the offence a week later.

[8]      The defence provided an indication from the bar that the defence case will be that the brothers were in fact discussing sausages. It is the intention of the defence, if this evidence is admitted, to call the defendant’s brother and their associate who provides them with sausages, known in the phone conversation as “the butcher”. The background context being wild meat obtained by hunters.

Submissions

[9]      I turn to the submissions from the parties. Section 8(1)(a) of the Evidence Act provides that a “Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will … have an unfairly prejudicial effect on the proceeding”.  Mr  Harrison,  appearing  for  the  defendant,  provided  a  number  of reasons there would be unfair prejudice from the admission of the intercepted phone call.

[10]     First, Mr Harrison noted that the Crown’s summary of facts presents the defendant  as  a  mere  courier.  If  the  intercept  is  played,  however,  the  inference available to the jury is that the defendant is more than a courier.  Rather, that he is a dealer in drugs. It is argued this would unfairly prejudice the defendant raising  his culpability in respect of the possession for supply charge.  (Mr McColgan confirmed the Crown would not lay an additional charge, based on this intercept.)

[11]     I am satisfied that this intercepted message is not evidence of the charge he faces, of possessing methamphetamine for supply.   It is from a different date sequence.  It was not utilised in the draft summary of facts provided for the defence.

The evidence is however highly prejudicial, as it supports the inference, to be urged by the Crown, that the defendant knew he was transporting illegal drugs.

[12]     The weakness of the existing charge from the Crown’s point of view is that of proving sufficient knowledge that the bag containing a Nike shoe box contained drugs.  All evidence has to be relevant to the charges laid.  As currently charged, the contention of the Crown is the defendant was a courier.  The supply involved in the couriering was to supply the methamphetamine to Mr Catley, who supplied it originally  to  the  defendant  on  the  arrival  of  the  defendant  in  Christchurch. Obviously Mr Catley was going to fly down from Auckland.  The function of the defendant on those facts is being the courier removing Mr Catley from the risk that the drugs would be intercepted in the transporting of the drugs from Auckland to Christchurch.

[13]     Mr Harrison confirmed that both the defendant’s brother and the “butcher”,

Mr Howard can be called.

[14]     I conclude that the intercept has sufficient relevance, absent an explanation to be admissible.   And second that explanation evidence is available.   The intercept evidence is relevant, s 7, and given the availability of evidence of rebuttal, applying s 8(2) of the Evidence Act 2006, the value of the intercept is not outweighed by risk of unfair prejudice. Accordingly s 7 applies and the intercept is admissible.