R v Keil
[2017] NZHC 2221
•14 September 2017
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-2016-004-9701
[2017] NZHC 2221
THE QUEEN v
DUANE ROGER KEIL
TRAVIS JAMES SADLER TE HERE MAIHI MAAKA
Hearing: 16 August 2017 Counsel:
B M Finn for Crown
T A Fitzgibbon for Keil
S Lack (on instructions from R M Mansfield) for Sadler A J Maxwell-Scott for Maaka
Judgment:
14 September 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 14 September 2017 at 2:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
R v KEIL & ORS [2017] NZHC 2221 [14 September 2017]
Introduction
[1] The Crown alleges that a prison guard, Mr Faapoi, smuggled contraband into Mt Eden Prison. The case is that Mr Faapoi was paid to do this by or on behalf of the prisoners who received the contraband.
[2] Among those charged for being involved in the smuggling operation are Mr Keil, Mr Sadler and Mr Maaka. However, they say there is insufficient evidence to put them on trial. This Judgment decides their applications to be discharged.
Discharge
[3] Section 147(1) of the Criminal Procedure Act 2011 empowers the Court to dismiss a charge before trial. One reason for doing so is if a Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.1
[4] In this case, the defendants contend that there simply is not enough evidence in relation to the particular charges they face to permit a properly directed jury to reasonably convict them.
[5] There is an oft quoted passage in the Court of Appeal’s judgment in Parris v Attorney-General which discusses the role of the Court when an application for discharge for insufficiency of evidence is made:2
[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence …
1 Section 147(4)(c).
2 Parris v Attorney-General [2004] 1 NZLR 519 (CA).
Joint enterprise
[6] The Crown’s case against each of the applicants is based largely on intercepted text message communications and telephone communications. The applicants were not parties to all the communications.
[7] Statements contained within such communications are admissible against the people who made them.3 But, normally, what people communicate to each other cannot be used as evidence against somebody who is not a party to the communications. That is because the communications are hearsay statements and are inadmissible unless certain conditions going to reliability and the unavailability of the maker of the statements are satisfied.4
[8]There is an exception relevant to this case known as the ‘co-conspirators’ rule:5
In a criminal proceeding, a hearsay statement is admissible against a defendant if—
(a)there is reasonable evidence of a conspiracy or joint enterprise; and
(b)there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and
(c)the hearsay statement was made in furtherance of the conspiracy or joint enterprise.
[9] Here, the charges against the applicants allege they corruptly agreed to, or corruptly did, bribe an official (Mr Faapoi) with intent to influence him in his official capacity to smuggle contraband into prison.6 The Crown contends that s 22A applies to charges where an applicant is not the only person charged so that communications by others are admissible as evidence against the applicant.
[10] One of the applicants’ co-defendants, Ms Dufresne, has pleaded guilty. Generally, evidence of the fact that a person has been convicted of an offence is admissible in a criminal proceeding and proof that the person has been convicted of
3 Evidence Act 2006, s 27(1).
4 Sections 17 and 18.
5 Section 22A.
6 Crimes Act 1961, s 105(2).
that offence is conclusive proof that the person committed the offence.7 Because Ms Dufresne has pleaded guilty to the charge there is a presumption that a conspiracy or joint enterprise existed.
[11] In terms of the s 22A requirements, there is therefore no issue in this case that there is reasonable evidence of a joint enterprise or enterprises to import contraband into the prison. Nor is there an issue that the hearsay statements in the intercepted communications were made in furtherance of a joint enterprise or enterprises to import contraband into the prison. The real issue for each applicant is whether there is sufficient evidence that they were members of a joint enterprise to import contraband into the prison through the corrupt agency of an official (Mr Faapoi) that they should stand trial.8
[12]The Court of Appeal in R v Messenger said:9
[14] The Crown is not obliged to prove every detail of the conspiracy or joint enterprise before the acts and statements of co-conspirators become admissible. The Crown must show simply that it is of the kind alleged and in general terms what the conspirators, including the accused, had the common intention of achieving. In assessing whether there is a joint enterprise the Court is concerned with the common intention to commit some offence …
[13] In this case, if there is reasonable evidence independent of the hearsay communications that an applicant was a member of a joint enterprise to import contraband into the prison, then the hearsay statements made in furtherance of that joint enterprise will be admissible against the applicant in the trial on the charge or charges he faces. But that will not mean necessarily that there is sufficient evidence for the applicant to actually stand trial.
[14] There is a difference between a determination of the admissibility of evidence and a finding that there is sufficient evidence overall for a defendant to stand trial. In this case, the elements of the charges go to intentional corruption of an official. If I determine there is no reasonable evidence that an applicant was a member of a joint enterprise to import contraband into the prison through the agency of a corrupt official,
7 Evidence Act, s 49(1).
8 Mr Keil submits that the evidence does not cross the threshold of connecting him to the smuggling joint enterprise.
9 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779.
then there will be a finding that the applicant should be discharged. On the other hand, if I determine that there is such evidence, I will still have to consider whether it is sufficient for a reasonable jury, properly directed, to convict on the relevant charge.
Mr Keil’s application
[15]Mr Keil faces charge 5 in the Crown Charge Notice: 10
That JENNY SHARON DUFRESNE and DUANE ROGER KEIL, on or
about 21 May 2015 at Auckland, corruptly gave a bribe to an official, namely Farani Junior Faapoi, with intent to influence him in his official capacity to introduce an unauthorised item into prison.
[16] The broad elements of the charge, which must be addressed sufficiently by the evidence if Mr Keil is to stand trial, are:
(a)That Mr Keil was a party to corruptly bribing Mr Faapoi;
(b)Mr Keil knew Mr Faapoi was an official; and
(c)The purpose of the bribe was to influence Mr Faapoi as an official to smuggle something into prison.
[17] The Crown’s case is based on intercepted communications which are to be considered against the following background:
(a)Ms Dufresne has pleaded guilty to the charge.
(b)Mr Keil was imprisoned at Mt Eden Prison on 11 December 2014. He remained there until 11 June 2015.
(c)Mr Faapoi was a prison guard who worked at Mt Eden Prison.11 On 28 June 2015, he was searched at the prison and he was found to be in
10 Crimes Act, s 105(2).
11 Mr Faapoi was employed by Serco New Zealand Ltd which had a contract to manage the prison. It is accepted that he was an official within the meaning of s 105 of the Crimes Act 1961, being the operative section: see R v Faapoi [2017] NZHC 1538 per Gordon J.
possession of a quantity of tobacco, which the Crown says was contraband intended for delivery to a prisoner or prisoners.
(d)Mr Keil and Ms Dufresne were in a relationship at the time Mr Keil entered Mt Eden Prison.
(e)On 30 March 2015, Ms Dufresne came to Mt Eden Prison to deliver property for Mr Keil. Two small bags containing tobacco were concealed within the property. Ms Dufresne was then banned from entering Mt Eden Prison for six months.
(f)Intercepted prison landline communications between Mr Keil and Ms Dufresne at the time make it clear, or so the Crown submits, that Mr Keil was involved in the decision to have Ms Dufresne attempt to smuggle the contraband tobacco to him.
(g)Intercepted communications show that during the relevant period a mobile telephone was being used by several inmates of Mt Eden Prison (“the prison phone”).
[18] The basis for Mr Keil’s application is simple. He argues, first, that although there is evidence of a smuggling transaction on or about 21 May 2015, the intercepted communications do not involve him in that transaction to any probative degree. In other words, there is no reasonable evidence that he was a party to the joint enterprise to import contraband into the prison. Second, even if s 22A applies, the intercepted communications do not connect him to Mr Faapoi. In other words, knowledge cannot be imputed to him that, knowing of Mr Faapoi, Mr Keil intended to influence him in his official capacity, by bribing him, to introduce an unauthorised item into prison. Therefore, no reasonable jury, properly directed, could convict him of the charge.
[19] Since the intercepted communications are crucial to the Crown’s case, and Mr Keil’s application for discharge, I will now set them out together with the Crown’s submissions on available inferences.
[20] I begin by expressing my finding that there is good evidence in the intercepted communications that Mr Keil was a user of the prison phone. I do not understand this to be disputed. However, examples are text messages from the prison phone to Ms Dufresne’s telephone on 11 May 2015 which read: “call me babe d” and “ill ring you 6am in morning babe d”. Mr Keil’s first name is “Duane” and, as I noted, he was in a romantic relationship with Ms Dufresne. There are numerous instances of unrecorded telephone conversations between Ms Dufresne and a user of the prison phone. The inference is that in at least some of them Ms Dufresne would be speaking to her partner, Mr Keil.
[21] There are also text messages where Ms Dufresne, by inference, attempts to contact Mr Keil on the prison phone. For example, on 7 May 2015, “D can u call”. The same text message is sent again on 8 May 2015.
[22]The messages in respect of charge 5 begin on 10 May 2015:
No. Date Time Party 1 Party 2 Data
Type
Content 98 10/05/15 18:04:40 642108643913
Prison Phone
2102891540 Text “Up2, JB! The
brotha’ Tarks and Daz’ send their regards. Hope youre well. Also, can you arrange koha 4 this week. A few 50g pkts, ph’ cards, and
Ups… Pl”
99 10/05/15 18:04:00 642108643913
Prison Phone2102891540 Text “ease! ;) Backdoor on standby so when youre ready, Brotha’! Be safe.
Laters’, my Man!!!”
100 10/05/15 18:05:54 642108643913
Prison Phone
2102891540 Call – no
content
2G Voice –
Duration – 00:01:14
101 11/05/15 16:08:24 642108643913
Prison Phone
64275627527
Dufresne
Call – no content 2G Voice –
Duration – 00:00:04
102 11/05/15 16:10:24 642108643913
Prison Phone
64275627527
Dufresne
Text call me babe d 103 11/05/15 16:12:21 642108643913
Prison Phone
64275627527
Dufresne
Call – no content 2G Voice –
Duration – 00:00:03
104 11/05/15 17:02:46 642108643913
Prison Phone
64275627527
Dufresne
Text ill ring you 6am in morning babe d. 105 11/05/15 17:16:00 64275627527
Dufresne
642108643913
Prison Phone
Text “Ok, sorry was in
training wid da big
boss.”
106 12/05/15 05:49:15 64275627527
Dufresne642108643913
Prison PhoneText “Ok, sorry was in
training wid da big
boss.”
107 12/05/15 05:50:00 642108643913
Prison Phone64275627527
DufresneCall – no content 2G Voice –
Duration –00:00:10
108 12/05/15 05:50:16 64275627527
Dufresne642108643913
Prison PhoneCall – no content 2G Voice –
Duration –00:10:35
109 13/05/15 16:35:21 64275627527
Dufresne642108643913
Prison PhoneCall – no content 2G Voice –
Duration –00:01:27
[23] The Crown’s case is that the highlighted portions in 98 and 99 show that contraband is being ordered and that Mr Faapoi is the “Backdoor on standby”.
[24] The Crown contends that Mr Faapoi now joins the dialogue using a telephone which the Crown attributes to him:12
110 13/05/15 21:15:03 6421182790
Faapoi 2
642108643913
Prison Phone
Text All good for friday avo abt 2? 111 14/05/15 19:02:57 6421182790
Faapoi 2
642108643913
Prison Phone
Text All good to pick up the tshirt tmrw for
WONG?
112 15/05/15 16:28:14 642108643913
Prison Phone
6421182790
Faapoi 2
Text Be in touch soon,
Uce’!!!
113 15/05/15 16:29:48 6421182790
Faapoi 2
642108643913
Prison Phone
Text Ok 114 15/05/15 17:14:09 642108643913
Prison Phone6421182790
Faapoi 2Text fuk sry uso gave mum wrong numba she bak visit sun gv num then. definatly
drop car parts off on mon. allgood?
115 15/05/15 17:17:29 6421182790
Faapoi 2
642108643913
Prison Phone
Text All good
[25] A difficulty for the Crown is that in 114 the user of the prison phone is not likely to be Mr Keil. His partner, Ms Dufresne, is banned from visiting the prison.
[26]The texts then continue:
116 16/05/15 18:37:36 642108643913
Prison Phone0212976278 Text “Msg from Montel; Hey Dad. Its Montel. Cant talk but can you please give those 10 50g
and ?500 to Jenny, 0275627527 and
12 The Crown alleges that Mr Faapoi used three telephones at the relevant times.
text when shes received them.
Send”
117 16/05/15 18:37:39 642108643913
Prison Phone
212976278 Text me an account to put money into. Cheers’
[27] These texts refer to Ms Dufresne. Her name is “Jenny” and the cellphone number is hers.
[28] What follows are texts between Ms Dufresne and someone who is evidently the partner of another inmate. They show familiarity with smuggling goods into prison. 126 and 127 are relevant, the Crown says, because of the reference to “crooked screws” as being the only way to get goods in (a proposition apparently accepted by Ms Dufresne) and Ms Dufresne’s reference to telling “Duane” (Mr Keil) that she is not spending any more money “doing that”:
120 18/05/15 13:57:02 64275627527
Dufresne64223789218 Text Tell me abt it!! My own fault for not looking after it properly!!! You’ll be pleased to be Bak at work !! Good dat Clint home n
working again
121 18/05/15 13:57:03 64275627527
Dufresne
64223789218 Text Yeh fingers crossed he gets out soon, I got banned for 6
months!!!
122 18/05/15 14:18:28 64223789218 64275627527
DufresneText Holy crap! Str8 up. Yeh my man told me nufng got thru. Has
he called or text u?
123 18/05/15 14:21:18 64275627527
Dufresne64223789218 Text Yep!! I’m writing a letter to dem, pleading ignorance n dat one of his mates gave me the stuff cos I cudnt afford to get it etc..
Blach blah.
124 18/05/15 14:21:19 64275627527
Dufresne64223789218 Text IIed a few times. Did the radio get thru? 125 18/05/15 14:26:13 64223789218 64275627527
DufresneText Not sure coz my man got out but
probly not.
126 18/05/15 14:27:18 64223789218 64275627527
DufresneText It was all shit anyway. Only way is thru da crooked
screws lol
127 18/05/15 14:45:47 64275627527
Dufresne
64223789218 Text Lol, yeh, wot a fecking pain – I told
Duane I’m not spending anymore muny doing that, he cost me too much already wid
wheeling n dealings!!! Lol
128 18/05/15 14:46:57 64223789218 64275627527
Dufresne
Text He’s a funny guy
aint he. I hope he appreciates u!
129 18/05/15 14:47:50 64275627527
Dufresne
64223789218 Text Yeh, me too!! Pain
in da bum!! Lol
[29]The next texts show Ms Dufresne’s continuing involvement in smuggling:
130 18/05/15 14:59:51 642108643913
Prison Phone
64212030536 Text 0275627527 jeny
kep dz numb
131 18/05/15 16:51:25 642108643913
Prison Phone64212030536 Text My bro wilgve u muny phne cigy kal dat numba plz drop
to her thank u talk sn
[30] The next entry (132) records that at 4:56 pm on 18 May 2015, Ms Dufresne calls the prison phone and speaks with someone for 1 minute and 21 seconds. The Crown’s case is that it can be inferred she is speaking with Mr Keil since he is her partner and the only person she would have a motive to telephone.
[31] About five minutes after Ms Dufresne’s call, someone using the prison phone begins a text message dialogue with Mr Faapoi:
133 18/05/15 17:02:14 642108643913
Prison Phone
6421182790
Faapoi 2
Text Sry cuz fukn had lk down at work 2day definite 2mrw jus beenvisit mum she
call u2mrw
134 18/05/15 18:04:56 6421182790
Faapoi 2
642108643913
Prison Phone
Text All good my bro 135 18/05/15 18:27:20 642108643913
Prison Phone6421182790
Faapoi 2Text Malo, Uce! Sorry bout the delay. The bros’ lady been in hospital since Friday. My son gona pick up the uniform in the morning from her car. Sorry, Uce! Bad timing. I’ll get at you after work 2mrw. Kupe and
uniform still on…
136 18/05/15 20:46:26 6421182790
Faapoi 2
642108643913
Prison Phone
Text Thanks uce all good
[32] Again, the Crown has the difficulty that the user of the prison phone refers to “jus beenvisit mum”. However, the Crown submits that in context, and given that Ms Dufresne has just been talking to someone on the prison phone, the reference to “jus beenvisit mum” could by inference be a reference to that call. The “she” is a reference to Ms Dufresne and in 135 “Kupe and uniform still on” is code for the smuggling deal being still on.
[33] The next day, a person using the prison phone calls the number ending 536 at 6:40 am. The call lasts 3 minutes and 46 seconds.13 At 3:20 pm there is a call from the 536 number to Ms Dufresne’s cellphone. It lasts 56 seconds.14
[34] Ms Dufresne then makes three calls to the prison phone. The first call is at 4:29 pm and lasts 1 minute and 15 seconds. The second call is at 4:35 pm and lasts 7 minutes and 34 seconds. The third call is at 4:46 pm and lasts 1 minute and 17 seconds. The Crown submits that a jury would be entitled to infer these calls were to Mr Keil.15
[35]At 5:52 pm the prison phone is used to contact Mr Faapoi:
142 19/05/15 17:52:35 642108643913
Prison Phone
6421182790
Faapoi 2
Text Malo, Uce! My sisters got your clothes for you. She’ll get at you 2mrw 4 a cuppa. Thanks 4
everything. God Bless ;p
143 19/05/15 18:06:46 6421182790
Faapoi 2
642108643913
Prison Phone
Text Oh ok any chance getting the clothes
tonight uce
144 19/05/15 18:08:47 642108643913
Prison Phone6421182790
Faapoi 2Text Shes working, Uso’.
Finishes atlunchtime 2mrw…
145 19/05/15 18:14:03 6421182790
Faapoi 2
642108643913
Prison Phone
Text All good uce 146 19/05/15 18:22:15 642108643913
Prison Phone
6421182790
Faapoi 2
Text Shot, my Uso’!
[36] The Crown’s case is that given the sequence of communications it can be inferred the reference to “sister” is a reference to Ms Dufresne and “clothes” is, like “uniform”, code for contraband.
13 Serial number 137.
14 Serial number 138.
15 Serial numbers 139, 140 and 141.
[37] The next day, 20 May 2015, at 5:25 pm, the prison phone is used to call Ms Dufresne.16 The duration is only 16 seconds. Shortly afterwards, at 5:36 pm, Ms Dufresne telephones the prison phone. This time the call lasts 5 minutes and 33 seconds.17
[38]Then, at 7:47 pm, Ms Dufresne sends a text message to the prison phone:18
Heard nothing yet tried calling but no reply yet
The Crown’s case is that this text must relate back to whatever was discussed in the preceding telephone calls.
[39] In context, the inference available is that Ms Dufresne is trying to get in touch with the supplier of the contraband. Given that Ms Dufresne’s contact with the prison is through Mr Keil, the Crown submits it can be inferred that Mr Keil is part of the plan to import contraband through Mr Faapoi.
[40] Ms Dufresne’s text message evidently sparks a reaction. At 8:03 pm someone using the prison phone calls Ms Dufresne. There is a brief conversation (55 seconds).19 At 8:03 pm Ms Dufresne sends the same text to the prison phone as at
149.20 The day’s communications finish when, at 9:12 pm, someone using the prison phone calls Ms Dufresne. The call lasts 41 seconds.21
[41] The next day, 21 May 2015, is the day on which the Crown says the smuggling transaction occurred. The first stage is the user of the 536 number getting the contraband to Ms Dufresne. This, the Crown submits, is evidenced by the following communications:
153 21/05/15 17:08:29 64212030536 64275627527
DufresneText Hey jenny gt ur things sori been working. You gt
time to meet up or addy i cn drop to u
16 Serial number 147.
17 Serial number 148.
18 Serial number 149.
19 Serial number 150.
20 Serial number 151.
21 Serial number 152.
154 21/05/15 17:38:07 64212030536 64275627527
DufresneText Hey jenny gt ur things. Want to drop
to u. Gv me ur addy il drop it around
155 21/05/15 17:40:04 64275627527
Dufresne
64212030536 Call – no content 55 second call. Content unknown 156 21/05/15 17:59:03 642108643913
Prison Phone64275627527
DufresneText Hey… Just seeing whetha’ the property got dropd
off 2 you today?
157 21/05/15 18:03:17 64275627527
Dufresne
642108643913
Prison Phone
Text Am just about to get it!! 158 21/05/15 18:05:54 64275627527
Dufresne
64212030536 Text Hey mate, I’m heading back home now, my addy is unit 36/7 Kelvin hart drive, but I can meet u on highbrook drive or
head over to otahu?
159 21/05/15 18:06:28 642108643913
Prison Phone64275627527
DufresneText Okay. Cool. D’ will call in the morning… Thank
you. ;)
160 21/05/15 18:06:30 64212030536 64275627527
Dufresne
Call – no content 2:00 call. Content unknown
[42] The Crown concedes that the user of the prison phone at this period is not Mr Keil. The reference in 159 to “D’ will call in the morning” is evidence of that. But, the Crown submits, the clear inference is that Mr Keil (“D”) will call because he is involved in the smuggling operation.
[43]The communications continue:
161 21/05/15 18:09:52 64275627527
Dufresne
642108643913
Prison Phone
Text No probs thanks 162 21/05/17 18:24:43 642108643913
Prison Phone
64212030536 Text Has Jenny got the clothes? 163 21/05/17 18:24:43 64212030536 642108643913
Prison Phone
Text Hard my bro ths t? 164 21/05/15 18:25:10 642108643913
Prison Phone
64212030536 Text “Yeah, Brotha’!” 165 21/05/17 18:27:08 64212030536 642108643913
Prison PhoneText Algd im goin to drop boothill tonite is tht algd. 166 21/05/15 18:28:01 64212030536 642108643913
Prison Phone
Text No taking them now then boothill 167 21/05/15 18:28:10 642108643913
Prison Phone
64212030536 Text That’s cool, my
Man. You still got her number?
168 21/05/15 18:28:41 64212030536 642108643913
Prison Phone
Text Nah I havnt 169 21/05/15 18:29:17 642108643913
Prison Phone
64212030536 Text 21321583 170 21/05/15 18:30:04 64212030536 642108643913
Prison Phone
Text Sweet thanks it be all sorted tonite
171 21/05/15 18:32:24 642108643913
Prison Phone64212030536 Text Awesum, Brotha! Will let the bro know in the
morning….Be Safe,
Brotha! Cheers
172 21/05/15 18:34:00 64212030536 642108643913
Prison Phone
Text Kuz phn switch off my bro still algd to
go say hi?
173 21/05/15 18:35:06 642108643913
Prison Phone
64212030536 Text Yeah, Bro! 174 21/05/15 18:35:35 64212030536 642108643913
Prison Phone
Text Cool will do 175 21/05/15 18:45:58 64212030536 64275627527
Dufresne
Text On my way mate 176 21/05/15 18:46:19 64275627527
Dufresne
64212030536 Text Cool c u soon 177 21/05/15 18:48:31 642108643913
Prison Phone
64212030536 Text 0211901050 Shes
home, Brotha
[44] Again, Mr Keil is probably not using the prison phone (the reference to “t” in 163).
[45]From this point, Mr Faapoi is contacted:
178 21/05/15 18:58:20 642108643913
Prison Phone
6421182790
Faapoi 2
Text Malo, Uso! 179 21/05/15 19:00:30 6421182790
Faapoi 2
642108643913
Prison Phone
Text Wassup uce all good to pk up the t-shirts? 180 21/05/15 19:03:00 642108643913
Prison Phone
6421182790
Faapoi 2
Text Yep! Your clothes are ready. Laundrys waiting 4 you to grab them… Jenny
0275627527
181 21/05/15 19:03:59 642108643913
Prison Phone
6421182790
Faapoi 2
Text Tell her your names
Poki… ;p
182 21/05/15 19:04:04 6421182790
Faapoi 2
642108643913
Prison Phone
Text Sweet uce 183 21/05/15 19:05:45 6421182790
Faapoi 2
642108643913
Prison Phone
Text Ok
[46] With Mr Faapoi primed to get in touch with Ms Dufresne to pick up the contraband, the user of the prison phone liaises with Ms Dufresne:
184 21/05/15 19:06:46 642108643913
Prison Phone64275627527
DufresneText Hey… The minister will grab the property 2nite from you, is that okay? And $1,300. Hold the otha $200 until D’ chats in the morning… Is that
alright?
[47] The Crown concedes that the user of the prison phone is not Mr Keil because of the reference to “D’ chats in the morning”. But it submits this is clearly arranging for payment to Mr Faapoi for doing the smuggling and it can be inferred by the reference to “D” that Mr Keil is involved.
[48]The sequence of communications continues:
185 21/05/15 19:07:31 642108643913
Prison Phone
64275627527
Dufresne
Text His names Poki… 186 21/05/15 19:08:07 64275627527
Dufresne642108643913
Prison PhoneText Yep no probs, the bro is on his way ova with it, then I’ll call Poki and take
over to him.
187 21/05/15 19:08:47 642108643913
Prison Phone6421182790
Faapoi 2Text Faa’fetai lava, Uce’! Manuia le po… 188 21/05/15 19:09:50 642108643913
Prison Phone64275627527
DufresneText Thanks heaps, J’. Really appreciate your help, so
thanks!
189 21/05/15 19:10:11 6421182790
Faapoi 2
642108643913
Prison Phone
Text All good uce have a goodnight 190 21/05/15 19:10:42 642108643913
Prison Phone
6421182790
Faapoi 2
Text Shot, my Uce’! 191 21/05/15 19:11:43 64212030536 64275627527
Dufresne
Call – no content 02:56 call. Content unknown 192 21/05/15 19:15:20 64275627527
Dufresne64212030536 Text All good, brings out the outlaw in me for
a bit of excitement in my life!!!! Lol
193 21/05/15 19:16:00 6421182790
Faapoi 2
64275627527
Dufresne
Text Hey its me Poki
where do you want me to meet you?
194 21/05/15 19:16:59 64275627527
Dufresne6421182790
Faapoi 2Text Hey, I can come to u if u like, the parcel is just about to be dropped off, Wea u live n I head ova in
abt 30??
195 21/05/15 19:17:51 642108643913
Prison Phone64275627527
DufresneText “Lol;) Behave! You might love it too much… Thats cheating! Lmfao’. Dont worry, your secrets safe with
me! ;p Be good, J’.”
196 21/05/15 19:21:03 6421182790
Faapoi 264275627527
DufresneText meet me in wstrnsprng by the race track and
ponsnby rugby field if thats ok
197 21/05/15 19:23:00 64275627527
Dufresne
642108643913
Prison Phone
Text Lol I swear D trying
to make a rebel outta me!!!
[49] The Crown submits that Ms Dufresne’s reference to “D trying to make a rebel outta me” in 197 is admissible evidence against Mr Keil of his involvement in the smuggling.
[50] The following communications evidence the contact between Ms Dufresne and Mr Faapoi:
198 21/05/15 19:26:01 64275627527
Dufresne6421182790
Faapoi 2Text Ok, I’m out east tamaki, just got the stuff n wrapping it up, I txt u wen I
leaving.
199 21/05/15 19:27:19 6421182790
Faapoi 2
64275627527
Dufresne
Text Ok sweet 200 21/05/15 19:27:17 642108643913
Prison Phone64275627527
DufresneText “;p Join the club! Lol. I’m kidding…
Be good, J’. Nite, Mate ;)”
201 21/05/15 19:28:26 64212030536 642108643913
Prison Phone
Text Bro jen gt ur clothes
nw
202 21/05/15 19:28:29 64275627527
Dufresne
642108643913
Prison Phone
Text Nite nite! 203 21/05/15 19:31:25 642108643913
Prison Phone
64212030536 Text I know, Brotha!
Cheers for that….
204 21/05/15 19:32:14 64275627527
Dufresne6421182790
Faapoi 2Text How shud I wrap it? I just run outta glad wrap!! Lol 205 21/05/15 19:32:16 642108643913
Prison Phone
6421182790
Faapoi 2
Text Shes ready, Poki…
;p
206 21/05/15 19:33:23 6421182790
Faapoi 2
64275627527
Dufresne
Text All good just bring it like that 207 21/05/15 19:33:52 6421182790
Faapoi 2
642108643913
Prison Phone
Text Sweet 208 21/05/15 19:35:53 642108643913
Prison Phone64275627527
DufresneText Ms Outlaw… The minister will touch base shortly. To cast out them naughty demonic
queens from thy soul. ;p
209 21/05/15 19:36:44 64275627527
Dufresne
642108643913
Prison Phone
Text Lmfao!! He just txt,
I’m walking out the
door now!!
210 21/05/15 19:37:43 642108643913
Prison Phone
64275627527
Dufresne
Text Cool. I’ll pray 4 you… ;p 211 21/05/15 19:37:53 64275627527
Dufresne
6421182790
Faapoi 2
Text Ok leaving now, I think I no Wea the
track n rugby field is!!
212 21/05/15 19:38:20 64275627527
Dufresne
642108643913
Prison Phone
Text Thanks mate, I’m
surely going to hell for this!!! Hahahaha
213 21/05/17 19:39:18 642108643913
Prison Phone
64275627527
Dufresne
Text Lol ;) Be safe!
214 21/05/15 19:39:37 64275627527
Dufresne
642108643913
Prison Phone
Text Always! 215 21/05/15 19:43:45 6421182790
Faapoi 264275627527
DufresneText Ok you get off st luke turn right and right again at the lights and the rugby field opposite the
caltex petrol station
216 21/05/15 19:57:44 6421182790
Faapoi 2
64275627527
Dufresne
Call – no content 1 minute voice call 217 21/05/15 20:02:58 64275627527
Dufresne
6421182790
Faapoi 2
Call – no content 27 second voice call 218 21/05/15 20:09:03 6421182790
Faapoi 2
64275627527
Dufresne
Call – no content 22 second voice call 219 22/05/15 5:22:28 642108643913
Prison Phone
64275627527
Dufresne
Call – no content 2G Voice –
Duration – 00:02:08
[51] The Crown’s case is that 219 is the telephone call from Mr Keil that Ms Dufresne was told twice to expect.
Analysis
[52] I am mindful that in assessing the sufficiency of evidence for a criminal charge, the Crown’s evidence has to be taken at its highest.22 But when it comes to s 22A, the first two prerequisites must be established without having regard to the hearsay statements.
[53] There is reasonable evidence of a joint enterprise to import contraband into the prison through the agency of Mr Faapoi. Ms Dufresne’s plea of guilty to the charge and Mr Faapoi’s apprehension with alleged contraband are sufficient for that. But there is no direct evidence that Mr Keil used the prison phone as a member of the joint enterprise or that he had knowledge of Mr Faapoi’s role as an official with access to the prison. The issue becomes whether there are inferences that a reasonable jury, properly directed, could draw to establish Mr Keil’s participation and requisite knowledge. Here, there are those inferences.
[54] First, there is evidence that supports the inference that Mr Keil was in a position to participate in the joint enterprise:
(a)He was in the prison.
22 R v Flyger [2001] 2 NZLR 721 (CA) at [17]-[18].
(b)He used the prison phone.
(c)He was Ms Dufresne’s partner.
[55] Second, he had previously conspired with Ms Dufresne to smuggle contraband into the prison.
[56] Third, Ms Dufresne (evidenced by her guilty plea to charge 5) was a member of the joint enterprise on this occasion.
[57] Fourth, Ms Dufresne and Mr Keil were using the prison phone to communicate with each other during the relevant period.
[58] Fifth, the prison phone is a clandestine phone. It is used by more than one prisoner. But there is an available inference that it is under Mr Keil’s control. That is because Ms Dufresne is Mr Keil’s partner and she uses it to contact him. If it were not in his possession and control then she would not just telephone, she would make sure first that Mr Keil had it. But there are no texts from her to the effect, “have D call me” or “can I call D at 2 pm?”.
[59] Sixth, Mr Faapoi was a prison guard working at the prison. If he were smuggling contraband into the prison to give to the members of the joint enterprise, then the inference is that the members would know that. He was the known “back door”.
[60] I am satisfied that there is reasonable evidence of a conspiracy or joint enterprise to corruptly give a bribe to an official (Mr Faapoi), with intent to influence him in his official capacity to smuggle contraband into the prison.
[61] I am further satisfied that, for the reasons outlined above, there is reasonable evidence that Mr Keil was a member of this conspiracy or joint enterprise.
[62] I find that the hearsay statements which I have quoted above were made in furtherance of the conspiracy or joint enterprise and are admissible against Mr Keil pursuant to s 22A. The statements include references to Mr Keil consistent with him
playing an active part in the corrupt use of Mr Faapoi. In 159, Ms Dufresne, in communications furthering the joint enterprise, is told: “D’ will call in the morning”. In 184, she is told specifically: “Hold the otha $200 until D’ chats in the morning”. And, in 197, Ms Dufresne texts a member of the joint enterprise: “Lol I swear D trying to make a rebel outta me!!!”.
[63] Having regard to the evidence of the background matters, as well as the intercepted communications, I find that there is therefore sufficient evidence upon which a reasonable jury, properly directed, could convict Mr Keil on charge 5.
[64]Mr Keil’s application for discharge is dismissed.
Mr Sadler’s application
[65]Mr Sadler faces charges 7 and 9 in the Crown Charge Notice. Charge 7 is:23
That JENNY SHARON DUFRESNE, TRAVIS JAMES SADLER and TE
HERE MAIHI MAAKA, between 23 May 2015 and 25 May 2015 at Auckland, corruptly agreed to give a bribe to an official, namely Farani Junior Faapoi with intent to influence him in his official capacity to introduce an unauthorised item into prison.
[66] The broad elements of proof for this charge are much the same as for charge 5. The difference is that an agreement to bribe is alleged and not that a bribe was given.
[67] Again, it is significant that Ms Dufresne has pleaded guilty to this charge. The issue is, therefore, not whether there was a corrupt agreement to bribe an official in his official capacity but whether Mr Sadler was a party to that agreement. Mr Lack for Mr Sadler submits that there is reasonable evidence that Mr Sadler was part of a joint enterprise to import contraband, but not that he knew and intended that a corrupt official was to be the smuggler. I take this to be a submission that s 22A is applicable but that there is insufficient evidence upon which a reasonable jury, properly directed, could convict.
[68] The Crown’s evidence is that Mr Sadler was incarcerated in Mt Eden Prison on 21 May 2015. He quickly was in a position to use the prison phone. Two days
23 Crimes Act, s 105(2).
after he was incarcerated Mr Sadler used the prison phone to telephone Mr Maaka. The call was intercepted by the Police. Relevant parts of the transcription of the call are:
MAAKA Holy fuck. Do you need anything? SADLER Yeah. Please.
MAAKA What?
SADLER There’s a door there. MAAKA Oh yeah.
SADLERYeah I’ll suss it out. I’ll s-suss it out and I’ll get back to you aye.
MAAKA Yeah.
SADLER Okay my brother.
MAAKA (Cut over) What do ya want?
SADLEROh just, just a couple of throw away phones and-and some fucken ciggies or something.
[69] Mr Finn for the Crown submits that the reference by Mr Sadler to “There’s a door there” is a reference to the existence of a smuggling conduit – Mr Faapoi as the Crown would have it. The reference to “I’ll suss it out” is Mr Sadler’s shorthand for “I’ll see if I can arrange to use it”.
[70] The next day, 24 May 2015, Mr Sadler again used the prison phone to telephone Mr Maaka. Relevant portions of the transcription are:
MAAKA Um so who, who was this person I’ve gotta, gotta get to? SADLER Ah yeah it’s a chick, the-the missus.
MAAKA Of?
SADLERO-o-of that fulla, so um just-just see her and then boom um she’ll give it to her partner and then bang done.
MAAKA So do you have to pay? SADLER Yeah, fifteen bucks.
MAAKA How much?
SADLER Fifteen.
MAAKA Holy fucken hell. And that’s for anything? SADLER That’s for everything, yeah anything.
MAAKA And when does it come, to you? SADLER Ah tomorrow.
MAAKA Okay then I’ll get it there today. SADLER Okay then brother.
MAAKA Sweet.
[71] Mr Finn submits that Ms Dufresne is the “chick” and “that fulla” is Mr Keil. The reference to “her partner” is a reference to Mr Faapoi (a criminal partner). Mr Sadler and Mr Maaka know that Mr Keil and Ms Dufresne are involved in the smuggling operation, hence there is no need to use their names.
[72] The latter inference is supported by the fact that later in the afternoon of 24 May 2015, Mr Maaka telephoned Ms Dufresne. The call was intercepted and relevant portions of the transcription are:
DUFRESNE Hello.
MAAKAOh hi there, I was given your phone number to get in touch with you.
DUFRESNE Yep.
MAAKA Oh yeah where do I have to go? DUFRESNE Umm, I’m out in East Tamaki. MAAKA Holy fuck. Um.
DUFRESNE (Giggles)
(UKM speaks in background)
MAAKA Um, yeah, oh yep so we have to come, come out there? DUFRESNE Ah yeah where are you?
MAAKA West Auckland. DUFRESNE Are you?
MAAKA Yeah.
DUFRESNE Um mmm. I can’t go anywhere today, but I can probably come out tomorrow, after work.
MAAKA Nah he said that, he-he said that it has to go in tomorrow. DUFRESNE (Pause) Oh okay.
MAAKA Has to get to him tomorrow, is that right? DUFRESNE I don’t know, no-one’s actually contacted me. MAAKA Oh okay. Are you Jenny?
DUFRESNE Yeah.
MAAKAOh okay well I was given your number by somebody and they said that um had a, I have to get to you before, tomorrow.
DUFRESNE Oh okay. (Laughs) I mean that’s fine but the guys just haven’t, haven’t told me so um, um, yeah so I’m out in East Tamaki.
MAAKA Okay then we’ll have to come out there. DUFRESNE Okay, um.
MAAKA Um probably tonight some time.
DUFRESNE Oh yeah that’s cool, not a problem, just give me a um a call and I’ll, I’ll give you my address or I can sorta come out um, come out sort’ve and meet ya.
MAAKA Okay. Thanks.
DUFRESNE Yeah. Okay no worries, Bye.
[73] Mr Finn submits that although it seems that Mr Maaka and Ms Dufresne do not know each other, Ms Dufresne is clearly expecting to be contacted and knows the context of the call.
[74] Immediately after this conversation, Mr Maaka sent a text message to the prison phone: “All go”. There is a swift reply: “Solid bro”. Mr Maaka then sent a message asking: “When will you get clothes”. The answer is: “2moro sumtyme bro”. Mr Finn submits there is an available inference that Mr Sadler was the recipient of Mr Maaka’s message and replied to it.
[75] Mr Finn points to the use by Mr Maaka of the word “clothes” as a code term for contraband. He submits that this code is common to the joint enterprise as was apparent in the messages relating to charge 5.
[76] Less than an hour after this exchange someone using the prison phone telephoned Ms Dufresne. The duration of the call is 2 minutes 42 seconds.24 There is no transcription. Mr Finn submits that an available inference is that a member of the joint enterprise, probably Mr Sadler, is making contact with Ms Dufresne to ensure she will carry out her part.
[77] There are further communications on 24 May 2015. At 4:18 pm Mr Maaka telephoned Ms Dufresne and asked her to send him her address via text message. And then:
233 24/05/15 16:19:53 64275627527
Dufresne64211659921
MaakaText Cuba apartments, unit 36, 7 Kelvin
hart dr, txt wen u get here.
234 24/05/15 16:25:06 64275627527
Dufresne
642108643913
Prison Phone
Call – no content 2G Voice –
Duration – 00:00:41
235 24/05/15 16:36:31 64275627527
Dufresne
642108643913
Prison Phone
Call – no content 2G Voice –
Duration – 00:04:25
236 24/05/15 16:41:34 64275627527
Dufresne
642108643913
Prison Phone
Text 12 3100 0233649 01 237 24/05/15 16:54:00 64211659921
Maaka
64275627527
Dufresne
Text Here 238 24/05/15 16:54:16 64275627527
Dufresne
64211659921
Maaka
Text Ok I’ll come out 239 24/05/15 17:04:51 64211659921
Maaka
642108643913
Prison Phone
Text Clothes in the mail buda
[78] At 5:36 pm someone using the prison phone sent a text message to Mr Maaka:25
Okay, Brotha’! Will let the Bro know in the morning…
Mr Finn submits that the prison phone is then in the possession of another member of the joint enterprise who will tell Mr Sadler in the morning that Mr Maaka has given the contraband to Ms Dufresne.
24 Serial number 231.
25 Serial number 240.
[79]However, there follows a series of communications:
241 24/05/15 17:36:51 642108643913
Prison Phone64275627527
DufresneText Hey you… ;) Are the clothes ready to fold? 242 24/05/15 17:37:41 64275627527
Dufresne642108643913
Prison PhoneText Yep, got no reply from the back door
yet tho.
243 24/05/15 17:38:35 64275627527
Dufresne642108643913
Prison PhoneText I mean I tried calling the minister but he no answer
ph!!
244 24/05/15 17:38:57 642108643913
Prison Phone6421182790
Faapoi 2Text Malo, Minister! Can you go to the laundry and pick up aunty washing? Its
ready…
245 24/05/15 17:40:24 642108643913
Prison Phone64275627527
DufresneText Okay. I just sent a msg to the church so hopefully hear from
him shortly…
246 24/05/15 17:41:46 64275627527
Dufresne
642108643913
Prison Phone
Text Coolio 247 24/05/15 17:43:23 642108643913
Prison Phone6421182790
Faapoi 2Text Get at me when you get a minute! God
bless… ;)
248 24/05/15 17:49:26 642108643913
Prison Phone64275627527
DufresneText Hoping to hear from him 2nite… If not, then you mind holding the clothes
until work starts?
249 24/05/15 17:50:40 64275627527
Dufresne
642108643913
Prison Phone
Text Yep no problemo.
[80] Mr Finn submits that Ms Dufresne’s use of the codes “back door” and “minister” means she expects the user of the prison phone to know to whom she is referring. Her reference to “the minister” is a particular reference to Mr Faapoi. This is confirmed, Mr Finn contends, by 244 – a text message from the prison phone direct to Mr Faapoi. So, the user of the prison phone, one of the members of the joint enterprise, is well aware that the back door into the prison is an official, Mr Faapoi.
[81]The communications continue:
253 24/05/15 20:00:49 642108643913
Prison Phone6421182790
Faapoi 2Text Poki… The church has donated kupe’
for your services!
254 24/05/15 20:02:40 642108643913
Prison Phone64275627527
DufresneText Any luck from the
minister, Ms Outlaw? ;p
255 24/05/15 20:03:25 64275627527
Dufresne
642108643913
Prison Phone
Text Nope, haven’t
heard yet.
256 24/05/15 20:05:00 6421182790
Faapoi 2642108643913
Prison PhoneText Sorry cuz is it ready
now just finish doing something
257 24/05/15 20:06:05 6421182790
Faapoi 2
642108643913
Prison Phone
Text whats the laundry
number?
258 24/05/15 20:12:32 642108643913
Prison Phone
64275627527
Dufresne
Text Ok. I’ll keep praying… 259 24/05/15 20:13:38 642108643913
Prison Phone
6421182790
Faapoi 2
Text Yep! Ready when you are, Minister! Laundry lady
waiting for you…
260 24/05/15 20:15:24 64275627527
Dufresne
642108643913
Prison Phone
Text Lol… 261 24/05/15 20:15:53 6421182790
Faapoi 2642108643913
Prison PhoneText Whats the number
please get hold of the laundry
262 24/05/15 20:16:37 642108643913
Prison Phone
64275627527
Dufresne
Text Ring him! The Gods have
spoken…
263 24/05/15 20:16:57 642108643913
Prison Phone
6421182790
Faapoi 2
Text She ringing now. 264 24/05/15 20:17:24 6421182790
Faapoi 2
642108643913
Prison Phone
Text Sweet 265 24/05/15 20:17:46 64275627527
Dufresne
6421182790
Faapoi 2
Call – no content 51 second call. Content unknown 266 24/05/15 20:19:54 64275627527
Dufresne642108643913
Prison PhoneText On the way to church to see
minister
267 24/05/15 20:20:50 642108643913
Prison Phone
64275627527
Dufresne
Text Bless you… 268 24/05/15 20:22:28 64275627527
Dufresne
642108643913
Prison Phone
Text Lol thank ya!!!!!! 269 24/05/15 20:42:20 64275627527
Dufresne
6421182790
Faapoi 2
Text 2 mins away 270 24/05/15 20:43:56 6421182790
Faapoi 2
64275627527
Dufresne
Text Sweet about 5mins see you soon 271 24/05/15 20:44:17 64275627527
Dufresne
6421182790
Faapoi 2
Text K 272 24/05/15 20:57:30 64275627527
Dufresne
642108643913
Prison Phone
Text Prayers said, clothes folded!!! 273 24/05/15 21:05:45 642108643913
Prison Phone
64275627527
Dufresne
Text Thank you… 274 24/05/15 21:06:06 64275627527
Dufresne
642108643913
Prison Phone
Text No prob
[82] Mr Finn concedes that the language of the user of the prison phone is not the language of Mr Sadler. The inference is that at this time another member of the joint enterprise, known to Ms Dufresne and to Mr Faapoi, is exercising oversight. The Crown’s case is that at this point the contraband delivered to Ms Dufresne by Mr Maaka has now been passed by her to Mr Faapoi.
[83] The next day, 25 May 2015, Mr Sadler used the prison phone to telephone Mr Maaka. The conversation was intercepted and relevant portions are:
MAAKA You there bro.
SADLER Yeah bro. Fuck mean alright bro. MAAKA Did you get it?
SADLEROh fucken nah just the smokes and the thing, cause it was like just too fucken stink.
MAAKA Aye?
SADLER Just too paranoid.
MAAKA Ow, tell him fucken give it, get it in or he’s gonna get it. SADLER Yeah I know. And I said I…
MAAKA (Cut over) I paid him.
SADLERYeah. I said fucken um, and he goes oh I’m too paranoid and I said mate fucken get it done mate.
MAAKA Get it done mate or you’ll be getting done. SADLER (Laughs)
MAAKA (Laughs)
SADLER Thank you my bro (Laughs). MAAKA All good.
SADLER Yeah all good.
MAAKA I know where they stay anyway. SADLER Oh yeah solid.
MAAKAShe goes ‘Oh can you meet me at the garage?’ I said nah I’m meeting you at your house, so I know which one to blow up.
SADLER Oh (Laughs). Oh yeah.
MAAKA Do you want some of that other stuff? SADLER Nah.
MAAKA Oh okay. SADLER Nah I’m alright.
MAAKA Fuck there’s heaps of that green stuff.
SADLERYeah nah that’s f-. Nah I’m alright. Just um see, I’ll just do this for now.
MAAKA Okay.
[84] Mr Finn submits that Mr Faapoi has made only a partial delivery to Mr Sadler because he is “[j]ust too paranoid”. There is an available inference that Mr Sadler had a direct conversation with Mr Faapoi in the prison. Hence, Mr Sadler knew of Mr Faapoi’s official status.
[85]Charge 9 in the Crown Charge Notice is:26
That TRAVIS JAMES SADLER, between 24 June 2015 and 29 June 2015 at Auckland, corruptly agreed to give a bribe to an official, namely Farani Junior Faapoi, with intent to influence him in his official capacity to introduce an unauthorised item into prison.
[86] The Crown contends that Mr Sadler, while still in prison, used another telephone (suffix 6124). The Crown’s attribution of this telephone to Mr Sadler is contested. But, counsel are agreed that this is a trial issue and not an issue going to sufficiency of evidence for a trial.
[87] The Crown’s evidence specific to charge 9 commences with a text message from Mr Faapoi to the prison phone on 1 June 2015, a week after the end of the charge 7 period. The message reads: “Any luck brother”.27 The next day Mr Faapoi sent a text message to Mr Sadler’s suffix 6124 telephone: “Itz minster poki how are you today?”.28
[88] Mr Finn points to the direct contact between Mr Faapoi and Mr Sadler as evidence from which a jury could infer that Mr Sadler knows who Mr Faapoi is and that he is a prison guard (an official). Mr Finn submits that added to this is the use of the code words already employed of “poki” and “minister”. The conspirators must know whose identity the codes conceal.
[89] There is no response from Mr Sadler. On 5 June 2015 and on 6 June 2015 Mr Faapoi (as the Crown contends) tried to contact Mr Sadler on three more occasions:
26 Crimes Act, s 105(2).
27 Serial number 344.
28 Serial number 345.
346 5/06/15 20:37:41 6421182790
Faapoi 202108726124
SadlerText Hey minster poki here lets use this one more time for the laundry until i get me a new washing basket please
brother
347 6/06/15 21:11:02 642108266269
Faapoi 302108726124
SadlerText How you doing
pastor? Minster poki here
348 6/06/15 21:22:49 642108266269
Faapoi 3
02108726124
Sadler
Text Hey minster poki
here how are you doing?
[90]On 7 June 2015 there is this exchange:
349 7/06/15 03:46:00 02108726124
Sadler642108266269
Faapoi 3Text Malo Been waiting for oyu… Good. We get sum thing to the
laundry this week
350 7/06/15 18:37:09 642108266269
Faapoi 3
02108726124
Sadler
Text Ok pastor 351 7/06/15 18:50:19 02108726124
Sadler642108266269
Faapoi 3Text Malo, Minister! Gona get the clothes washed in a few days. Laundry will get at you for the
schedule!
351 7/06/15 19:58:55 642108266269
Faapoi 3
02108726124
Sadler
Text Ok brother
[91] Mr Finn submits that, taken together, these texts indicate a continuing willingness by Mr Faapoi to smuggle goods into the prison, and Mr Sadler decided to use his services again.
[92] Eleven days later, on 18 June 2015, the Police intercepted a call from Mr Sadler (using his suffix 6124 telephone) to an unknown male. The two speak using guarded language. Part of the conversation, Mr Finn submits, can be interpreted as Mr Sadler discussing another smuggling operation:
SADLER Okay yeah yeah, okay................ get all that or what?
UKM Yeah we were just waiting to um. SADLER The minister?
UKMWaiting. Yeah waiting for the um yeah the boat to come through, you can throw it on that. I usual…
SADLER Okay yeah.
UKM Is there one happening?
SADLER Um.
UKM Is there a trip happening soon or?
SADLER Yeah well I’ll try get, get something going next week.
[93] Mr Finn submits that Mr Sadler can be seen to be playing a leading role in the smuggling, and this goes to his knowledge of Mr Faapoi as the official (“the minister”) who is the “back door”.
[94] On 23 June 2015, Mr Faapoi sent a text message to Mr Sadler’s (suffix 6124) telephone: “Hey sorry i missed your call whats up?”. The next day Mr Sadler responded: “Can u pick up the laundry sometime next week”.
[95] Mr Finn submits that this is the initiation of the next smuggling attempt. He points to Mr Faapoi being searched at the prison on 28 June 2015 and being found to be in possession of contraband tobacco.
Analysis
[96] It is clear on the Crown’s evidence for charges 7 and 9 that there was a criminal joint enterprise or joint enterprises by prisoners and people outside the prison to smuggle contraband into the prison. It is clear also that the Crown has sufficient evidence to put before the jury that the actual smuggler was Mr Faapoi, an official.
[97] Mr Sadler’s communications are direct evidence and are not subject to the s 22A test. I consider that for charge 7 his intercepted telephone conversations with Mr Maaka could be used by a jury to infer that Mr Sadler was part of the joint enterprise which founds that charge. Given there is sufficient evidence to attribute the suffix 6124 telephone to Mr Sadler, there is also sufficient evidence to implicate him in the joint enterprise which is the subject of charge 9.
[98] Accordingly, s 22A applies to make admissible against him the communications of Ms Dufresne, Mr Maaka and Mr Faapoi in which he was not a participant.
[99] Mr Lack, for Mr Sadler, does not dispute that the evidence on both charges implicates Mr Sadler as being involved in the smuggling operations. However, he submits that the evidence does not provide a proper foundation for an inference that Mr Sadler knew that an official was involved. In other words, he disputes a crucial element of the charge.
[100] First, Mr Lack submits that as a matter of law none of the intercepted communications made before Mr Sadler was incarcerated in the prison are admissible against him. He could not, prior to then, have been a member of a joint enterprise. This applies to all the communications relied on by the Crown to establish charge 5.
[101] I do not entirely agree. The Crown’s case is that prior to Mr Sadler being incarcerated, the prison phone was being used by prisoners to organise the smuggling of contraband into the prison. Ms Dufresne was involved and Mr Faapoi was the actual smuggler. When Mr Sadler arrived in the prison he joined the ongoing joint enterprise, initially using the prison phone and then his own telephone (suffix 6124). He made use of Ms Dufresne and Mr Faapoi. While the Crown cannot use the joint enterprise exception to the hearsay rule to have the contents of communications made prior to Mr Sadler being incarcerated used as evidence against him as though he was a member of the joint enterprise, the other rules of evidence apply. The fact that Ms Dufresne pleaded guilty to charge 7 can establish that there was a corrupt agreement as alleged (but not the identities of the other parties). The fact that the prison phone was used in communications between prisoners and Ms Dufresne, and prisoners and Mr Faapoi, can be used. If the hearsay rules can be satisfied,29 then the contents can be used. However, I do not need to pursue this matter further. It does not impact my decision.
[102] Mr Lack submits that, as the evidence of Ms Dufresne being banned from the prison illustrates, smuggling does not necessarily have to involve an official. The crux of his submission is that anyone, a visitor perhaps, could be the smuggler. There is insufficient evidence that Mr Sadler knew that an official was the smuggler (assuming the Crown can prove one was). Mr Lack submits that the intercepted telephone
29 Evidence Act, ss 17 and 18.
conversations, during which Mr Sadler, using the prison phone, tells Mr Maaka to give the contraband to the “missus of that fulla” and “she’ll give it to her partner”, cannot be a reference involving Mr Faapoi. It is a reference to Ms Dufresne passing the contraband to her partner, Mr Keil. Obviously, she will need to use an intermediary, but there is nothing to suggest Mr Sadler knows who that is. In Mr Lack’s submission, the evidence supports the inference that Mr Keil is running a smuggling operation and Mr Sadler is merely a customer.
[103] Mr Lack points to the subsequent conversations between Mr Sadler and Mr Maaka during which Mr Sadler reports that not all the contraband was delivered. Mr Maaka responds with bellicose suggestions that seem aimed at Mr Keil and Ms Dufresne.
[104] I find there is sufficient evidence on charge 7 on which a reasonable jury, properly directed, could convict Mr Sadler. On the contested point of knowledge of the involvement of an official as the smuggler, it is a matter of context. There is an evidential foundation for the existence of a smuggling operation involving prisoners using the prison phone and employing Ms Dufresne and Mr Faapoi. There is direct contact between Mr Faapoi and the prison phone. When Mr Sadler starts to use the suffix 6124 telephone, Mr Faapoi communicates directly to that telephone. The evidence relevant to charge 7 can also be used to establish charge 9, and vice versa.
[105] In my view, it is not speculative to infer that if Mr Sadler is directly involved in the smuggling operation, and that Mr Faapoi is the smuggler, then Mr Sadler must have known that and to have intended to use him.
[106]Mr Sadler’s applications for discharge on charges 7 and 9 are dismissed.
Mr Maaka’s application
[107]Mr Maaka also faces charge 7.30
30 Crimes Act, s 105(2).
[108] The requirements in s 22A are satisfied. Ms Dufresne’s plea of guilty gives reasonable evidence of the conspiracy or joint enterprise. Mr Maaka’s telephone communications with Mr Sadler and Ms Dufresne are reasonable evidence that he was a member of the conspiracy or joint enterprise. The issue is whether there is sufficient evidence that Mr Maaka knew that an official was involved such that a reasonable jury, properly directed, could convict him of the charge.
[109] Ms Maxwell-Scott’s submission is straightforward. Mr Maaka’s only involvement in the smuggling operation was to follow Mr Sadler’s instruction to deliver contraband to Ms Dufresne. There is no evidence that Mr Sadler told Mr Maaka how Ms Dufresne was then going to get the contraband into the prison. The only other way he could have found out about Mr Faapoi was if Ms Dufresne had told him. To suggest that Ms Dufresne must have told him about Mr Faapoi when they met to transfer possession of the contraband would be to speculate.
[110] Mr Finn submits that Mr Maaka must be taken as knowing that someone other than Ms Dufresne was going to smuggle the contraband. Mr Sadler told Mr Maaka that Ms Dufresne (“the missus of the fulla”) would give it to her partner. That is enough to found an inference that Mr Maaka would know the partner was a prison guard, an official with access to the prison. It is also enough to establish Mr Maaka’s participation in the bribery aspect of the charge.
[111] My finding is that there is insufficient evidence from which a reasonable jury, properly directed, could infer that Mr Maaka knew and intended that a bribe was to be given to an official so as to influence him in his official capacity to smuggle contraband into the prison.
[112] In the telephone conversation of 21 May 2015, all that Mr Sadler told Mr Maaka was: “There’s a door there”. The Crown did not call evidence, nor suggest, that the code “door” must refer to a corrupt official. The inference is, therefore, that it means there is a way of getting contraband into the prison. Obviously, that way might be through the agency of an official who works at the prison. But it could also be through the agency of someone able to visit the prison, or who works there in a capacity that does not make them an official.
[113] The conversation of 24 May 2015 makes no reference to who is going to smuggle the contraband into the prison. The relevant exchange is:
MAAKA Um so who, who was this person I’ve gotta, gotta get to? SADLER Ah yeah it’s a chick, the-the missus.
MAAKA Of?
SADLERO-o-of that fulla, so um just-just see her and then boom um she’ll give it to her partner and then bang done.
[114] From this it can be inferred that Mr Maaka knows of Mr Keil and of Ms Dufresne, and so the guarded, and scant, references to “the missus” and “that fulla” make sense to him. But that does not found a proper inference that the reference to “her partner” can reasonably be taken to be a reference to Mr Faapoi (or, more generally, to an official) and that Mr Maaka knew it to be such. For that inference to be properly drawn there would have to be evidence of other dealings by Mr Maaka with Mr Sadler from which such knowledge could have been obtained.
[115] The Crown does not obtain assistance from the conversation later on 24 May 2015 between Mr Maaka and Ms Dufresne. There is no reference to what Ms Dufresne is going to do with the contraband.
[116] Mr Maaka is not involved in the subsequent communications in which Ms Dufresne and the user of the prison phone are in contact with Mr Faapoi. Section 22A means that those communications are admissible against him as evidence of the conspiracy or joint enterprise of which he was part. But the charge requires proof beyond reasonable doubt that Mr Maaka was a party to a corrupt agreement to give a bribe to an official with intent to influence him in his official capacity to smuggle contraband into prison. That means there must be evidence to the required standard that he knew of and was a party to the corrupt agreement. The subsequent communications have little probative value in this regard.
[117] The conversation between Mr Sadler and Mr Maaka on 25 May 2015 is not of material assistance to the Crown either. The most that can be inferred is that Mr Maaka knew that the smuggler was male:
Ow, tell him fucken give it, get it in or he’s gonna get it.
[118] Mr Maaka also says “I paid him”, in apparent reference to the smuggler. But that could be a reference to paying “him” through Ms Dufresne. Mr Maaka’s later references to “I know where they stay anyway” and “She goes ‘Oh can you meet me at the garage?’ I said nah I’m meeting you at your house, so I know which one to blow up” seem to tie back to Ms Dufresne.
[119] I acknowledge that a jury could properly infer that the intercepted communications showing Mr Maaka’s involvement in the joint enterprise with Mr Sadler and Ms Dufresne are only snapshots of that involvement. Mr Maaka clearly has more knowledge of the smuggling operation than was imparted to him in those communications. But the criminal standard of proof is a high one, proof beyond reasonable doubt. When a jury draws inferences it must not speculate. If two inferences can equally be drawn, then the one that favours the defendant prevails. There is no evidence that Mr Maaka did any more than deliver contraband to Ms Dufresne. To go further and infer that he did that knowing that an official was to be bribed to smuggle the contraband into prison would be to speculate. An available inference is that the official’s involvement would be information held on a “need to know” basis.
[120]Mr Maaka’s application to be discharged on charge 7 is granted.
Result
[121]In summary:
(a)Mr Keil’s application to be discharged is refused.
(b)Mr Sadler’s applications to be discharged are refused.
(c)Mr Maaka’s application to be discharged is granted. The registry is to make arrangements for Mr Maaka to be discharged in open Court as is required by s 147(5) of the Criminal Procedure Act.
Brewer J
Solicitors/Counsel:
Meredith Connell (Auckland) for Crown T Fitzgibbon (Auckland) for Keil
Ron Mansfield (Auckland) for Sadler
Annabel Maxwell-Scott (Auckland) for Maaka