R v Leigh HC Auckland CRI 2006-019-008458
[2008] NZHC 2531
•27 August 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-019-008458
THE QUEEN
v
MARK LEIGH CHEN-WEI HUANG WEI ZHONG
DI WU
RI TONG ZHOU JIA WANG GUOZHI LI LYRICE PERI
CHUN PONG CHENG GANG CAI
Hearing: 25 August 2008
Appearances: A R Burns and MJF Wright for the Crown
S J Bonnar for Leigh, Huang, Zhong, Wu, Wang, Li, and Cheng
M Kan for Zhou
M S Gibson for Peri
T A Simmonds for Cai
Judgment: 27 August 2008
JUDGMENT OF PRIESTLEY J
This judgment was delivered by me on Wednesday 27 August 2008 at 5.00 pm pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date: …………………………
R V MARK LEIGH AND ORS HC AK CRI 2006-019-008458 27 August 2008
Introduction
[1] The accused, along with others, are charged with serious offending under the Misuse of Drugs Act 1975. In the wake of an extensive police operation, which included surveillance and interception of telephone calls, the Crown has presented indictments alleging discrete offending against each accused during October 2006. There is available evidence of organised and sustained methamphetamine importation, distribution of large quantities of the drug, and large sums of money changing hands.
[2] Many of the accused have been in custody for 22 months. Many are Chinese nationals.
[3] The complexity of the Crown case, which includes the multiplicity of counts and the discrete offending alleged, has led to three trials being allocated next year. The first trial, estimated to last five weeks, starts on 9 February 2009. The next trial, of the same estimated length, begins on 20 April. The third trial will not start until
22 June 2009 with an estimated duration of three weeks. Some of the available evidence inevitably spans more than one trial, as does the involvement of various accused.
The Crown’s Pre-trial Approach
[4] Complex multi-accused drug trials involving interception evidence gathered over a long period present obvious problems. Lengthy trial times result. An inability to find or create courtrooms for multi-accused trials to meet a clear demand in a timely fashion adds to resource pressures.
[5] Where intercepted communications are in a foreign language (in these trials largely Mandarin or Cantonese) extra resources by way of interpreters and translators must be available. A large number of defence counsel inevitably means delay in counsel reaching a measure of agreement on pre-trial and process issues.
[6] The Crown in this case sees the Evidence Act 2006 as a useful tool to resolve pre-trial issues in a uniformly efficient and prompt way. Indeed, the s 6(e) purpose of the Act is to avoid unjustifiable expense and delay.
[7] In this case the various notices under the Evidence Act given by the Crown have indeed resulted in a clear focus on a number of issues which, in large measure, counsel will be able to resolve between themselves. I am of the view that outcome would not have been attained so speedily had Notices not been given.
[8] Some counsel responsibly expressed certain reservations about the procedure employed by the Crown. Those reservations may have force (and I return to them) in some situations, but not here.
Hearsay Notice
[9] Section 18 sets out the permissible circumstances under which a hearsay statement can be admitted:
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if—
(a) The circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
[10] Two separate routes to hearsay admissibility are stipulated in s 18(1)(b). Reliability (s 18(1)(a)) overarches both. If, as is certainly the case with the evidence contained in the Crown’s hearsay Notice in these trials, the maker of the statement is available, then the only route is if a judge can be persuaded that calling the maker of the statement as a witness would cause undue expense or delay.
[11] Similar, but not identical, considerations apply to the admissibility of hearsay statements contained in business records:
19 Admissibility of hearsay statements contained in business records
(1) A hearsay statement contained in a business record is admissible if—
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
(2) This section is subject to sections 20 and 22.
[12] Section 16 enacts a broad definition of “business record”:
16 Interpretation
…
business record means a document— (a) that is made—
(i) to comply with a duty; or
(ii) in the course of a business, and as a record or part of a record of that business; and
(b) that is made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied
[13] There was no contest by counsel, and certainly I would require little persuasion on the issue, that a police officer’s notebook, properly prepared job sheets, and reports by ESR analysts relating to drugs, would fall under the “business record” definition. Business records could well be admissible under s 19 without the need to call the police officer or analyst who was the author of the business record in
question. The prerequisite, however, to such a step in this instance is that the presiding judge (s 19(1)(c)) must first be convinced that undue expense or delay would result if the author had to be called as a witness.
[14] If hearsay statements which might be admissible under ss 18 and 19 are to be called in a criminal trial, then the party proposing to admit hearsay must give notice in terms of s 22:
22 Notice of hearsay in criminal proceedings
(1) In a criminal proceeding, no hearsay statement may be offered in evidence unless—
(a) the party proposing to offer the statement has complied with the requirements of subsections (2), (3), and (4); or
(b) every other party has waived those requirements; or
(c) the Judge dispenses with those requirements.
(2) A party who proposes to offer a hearsay statement in a criminal proceeding, must provide every other party with a written notice stating—
(a) the party's intention to offer the hearsay statement in evidence; and
(b)the name of the maker of the statement, if known (subject to the terms of any witness anonymity order); and
(c)if the hearsay statement was made orally, the contents of the hearsay statement; and
(d)if section 18(1)(a) is relied on, the circumstances relating to the statement that provide reasonable assurance that the statement is reliable; and
(e)if section 19 is relied on, why the document is a business record; and
(f)if section 18(1)(b)(i) or 19(1)(a) is relied on, why the person is unavailable as a witness; and
(g) if section 18(1)(b)(ii) or 19(1)(c) is relied on, why undue expense or delay would be caused if the person were required to be a witness.
(3) If the hearsay statement was made in writing, the notice must be accompanied by a copy of the document in which the statement is contained.
(4) The requirements of subsections (2) and (3) must be complied with in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond to the statement.
(5) The Judge may dispense with the requirements of subsections (2), (3), and (4) if,—
(a) having regard to the nature and contents of the statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.
[15] The Notice requirement is important. If there is no Notice then s 22(1) prevents hearsay statements being offered in evidence. The proposing party must comply with the clear and logical provisions of s 22(2). Copies of documents must be provided in accordance with s 22(3).
[16] The s 22(4) requirement of compliance “in sufficient time before the hearing to provide all other parties to the proceeding with a fair opportunity to respond” has some elasticity. Obviously natural justice considerations lie at the provision’s core. Whether or not there has been “sufficient time” is ultimately a matter of judicial discretion in the context of the relevant situation.
[17] The giving of notice, beset as it is with mandatory requirements, is not decisive (although its omission may be). What is decisive in situations where the maker of a hearsay statement is available, or the supplier of information contained in a business record is available, will be the judge’s view on whether calling the relevant person as a witness will cause undue expense or delay.
[18] Against that background I turn to the Crown’s strategy. Rather than rely on admission of certain evidence by agreement under s 9 which, in a multi-accused trial would require agreement from all interested defence counsel, the Crown instead has filed a s 22 Notice which is extensive.
[19] Before the Act became law, and in any event in a s 9 situation, agreed evidence might be introduced as hearsay through another witness by consent; or it might go to the jury as an admission of fact; or the evidence might be read.
[20] In a long trial, submitted Mr Burns, it could be helpful for the jury to receive from a preliminary witness, such as an officer-in-charge, an overview of the case. Such an overview might touch on a considerable volume of evidence which would be hearsay in the mouth of the witness but nonetheless admissible under ss 18 or 19.
[21] The Crown’s s 22 Notice was comprehensive. Counsel helpfully reduced this to a synopsis for the first and second trials (supra [3] ). Hearsay topics included:
• The granting of interception warrants.
• The interception process.
• How intercepted conversations in foreign languages were translated.
• The taking of surveillance photographs.
• The times, dates, and fruits of searches of various vehicles and premises.
• Items seized from the accused when the police operation finished, including cash, computers, cell phones, paraphernalia and drugs.
[22] During dialogue with the bench Mr Burns exhibited appropriate and proper realism. The Crown certainly has no intention to offer hearsay evidence across the entire range of the above topics. Rather what had motivated the s 22 Notice was to flush out the evidential issues of the trials so that appropriate arrangements could be made and resources allocated. If, for whatever reason, an accused wished a witness who had been responsible, say for surveillance or seizure, to be available for cross- examination, then the interests of justice, and in particular the right to a fair trial conferred by s 25(a) of the New Zealand Bill of Rights Act 1990, would
unquestionably require the Crown to call that witness rather than attempting to introduce his or her evidence as hearsay.
[23] Both Mr Bonnar and Mr Gibson expressed some unease that s 22 Notices might be used by the Crown in the future to limit, in an unfair way, the number of witnesses being called, or to truncate legitimate evidence. In Mr Bonnar’s submissions the Crown must be scrupulous in these areas. Counsel were also concerned the Crown’s Notice procedure might be the thin edge of some wedge.
[24] There is no suggestion here that the Crown has an ulterior motive in mind. Were that the case there would undoubtedly be judicial resistance. So far, the Crown has used the s 22 Notice device in a productive way to bring to the forefront of counsel’s mind the need to identify disputed areas.
[25] Mr Gibson submitted that defence counsel in any criminal trial had an obligation to ensure that trials were not unduly delayed or protracted. To that extent, counsel submitted, defence counsel had a responsibility to assist both the court and the Crown with the quick dispatch of a trial.
[26] In an ideal world this would be so. However, it is frequently the case that defence counsel, on their own initiative or on instructions, decline to cooperate, or are unable to turn their minds to what direct evidence can be dispensed with until the last moment, or sometimes not until the trial is well under way.
[27] In any long trial, particularly a multi-accused trial of this type, judges will naturally be concerned to ensure the trial proceeds efficiently and that unnecessary time is not consumed. But ultimately courts hold the balance between the Crown and an accused. In situations when a witness is available, the requirements of ss 18 and 19 (supra [9] and [11]) quite simply do not permit hearsay evidence to be admitted unless the judge is satisfied that calling the relevant witness would cause undue expense or delay. That does not mean judges will allow s 18(1)(b)(ii) and s 19(1)(c) considerations to be driven by fiscal or case-management expediency. The interests of justice will always be paramount.
[28] After discussion, counsel expressed considerable confidence that, given more time (some had only been recently instructed), a large measure of agreement would undoubtedly be reached. I thus direct that in respect of the matters itemised in the Crown’s s 22 Notice, the accused are to notify the Crown and the Court no later than
5 pm on Thursday 30 October 2008 of any matters specified in the Notice where there is objection to hearsay evidence and a contest, and the specific reasons why.
[29] It would be this Court’s hope that most, if not all, of the matters properly raised by the Crown can be the subject of agreement. Flushing out such agreement lay behind the Crown’s strategy.
Transcripts and Translations
[30] The police operation which led to the arrest of the accused included the recording of intercepted telephone conversations authorised by interception warrants. Approximately 13,500 conversations were recorded.
[31] The Crown intends to rely on these intercepted conversations as evidence. Unsurprisingly, given the nationality of many of the accused, most (but not all) of the conversations were in Mandarin and Cantonese. A smaller number were in other Chinese dialects or other Asian languages.
[32] Intercepted conversations in English seldom present problems in a criminal trial. The jury listens to recordings of intercepted telephone conversations assisted by a prepared transcript. Statutory provisions (s 312L of the Crimes Act 1961 and s 24 of the Misuse of Drugs Amendment Act 1978) relate to disclosure of the transcripts.
[33] Although New Zealand’s current demographic composition might result in one or more jurors being able to understand Mandarin or Cantonese, the majority, as with all languages, will have no such linguistic competence.
[34] Translations of all relevant intercepted communications have been prepared.
[35] The Crown has given notice under s 135 which provides:
135 Translations and transcripts
(1) A party may offer a document that purports to be a translation into English of a document in a language other than English, or a translation into Maori of a document in a language other than Maori, if—
(a) notice is given to all other parties in sufficient time before the hearing to provide those other parties with a fair opportunity to scrutinise the translation; and
(b) all other requirements prescribed in regulations made under section 201 concerning that document are satisfied.
(2) The translation is presumed to be an accurate translation, in the absence of evidence to the contrary.
(3) A party, if notice is given to all other parties in sufficient time before the hearing to provide those other parties with a fair opportunity to scrutinise the transcript and all other prescribed requirements referred to in subsection (1)(b) are satisfied, may offer a document that purports to be a transcript of information or other matter that is recorded—
(a) in a code (including shorthand writing or programming code); or
(b) in a way that is capable of being reproduced as sound or script.
(4) A party who offers a transcript of information or other matter in a sound recording under subsection (3) must play all or part of the sound recording in court during the hearing if—
(a) the sound recording is available; and
(b) the Judge so directs, either on the application of another party or on the Judge's own initiative.
[36] This provision sits in Part 3 of the Act which is headed “Trial process” and unsurprisingly is one of nineteen sections contained in Subpart 8 headed “Documentary evidence and evidence produced by machine, device, or technical process”. I make that point solely to deal with a submission of Mr Gibson that perhaps s 135 should only be invoked in a situation where the translated document was an uncontroverted fact or reliable. Uncontroverted facts and relevant notice provisions are covered by s 128 which sits in Subpart 7. I reject Mr Gibson’s submission. There is nothing, as will be apparent from the following discussion, in
the nature of the transcript or its translation to justify a conclusion that s 135 is limited in scope to uncontroverted or reliable documents.
[37] It is common ground, consistent with the s 4 definition of “document”, that an electronically recorded and stored conversation is a document for s 135 purposes.
[38] The structure of s 135 is self-evident. If notice is given by a party proposing to offer a document which purports to be an English translation of a document in a foreign language (there being no need for the purpose of this analysis to deal with Maori) then the s 135(2) presumption of accuracy will apply unless there is evidence to the contrary. Subsections 3 and 4 apply not to translations but to transcripts.
[39] By invoking s 135 the Crown hopes, well in advance of the trials, to ensure that both the transcript (s 135(3)) and the translations of intercepted conversations in foreign languages (s 135(1)) are acceptable.
[40] There are three potential areas of critical concern to defence counsel and legitimately so. The first of these is voice identification. This is frequently an issue in trials involving intercepted communications, regardless of the language. The translated transcripts are similar to the script of a play. They highlight the names of the conversation’s alleged participants. Whether or not the attribution of an accused’s name to a recorded voice is a correct attribution is ultimately a jury matter. It is legitimately the subject of evidence with the jury reaching its own conclusions. Voice identification issues are no way restricted by s 135.
[41] The second and third issues overlap. They are whether particular words in an intercepted conversation have been correctly transcribed and, when words have been translated, whether they have been correctly translated.
[42] With a transcript relating to an intercepted conversation in English there will frequently be disputes over whether particular words have been correctly transcribed. Auditory errors are common. This again is a jury matter. Jurors will reach their own judgment guided by the direction that the evidence is what they hear, not what they are reading in a transcript.
[43] Translation errors, however, are governed by s 135(2). Any accused who considers that his or her words have been inaccurately translated is able to call evidence to the contrary. In some situations translation errors are capable of correction (and should indeed be corrected) before trial by an accused pointing out the error in which case the Crown will undoubtedly seek assistance from the translator concerned. Clear errors over which there is no dispute should be corrected in this way.
[44] If on the other hand there is a conflict over a translation, which may frequently occur because cultures and languages express concepts and ideas in different ways, quite apart from overarching issues such as shades of meaning and the differing subtleties and sophistication of various languages, then such disputes will need to be resolved by a jury. Relevant evidence would be cross-examination of the translator whose version appears in the translated transcript, and possibly evidence called by an accused.
[45] Drug dealers, of course, are well aware of the risk of their conversations being monitored or overheard. A common strategy is to speak in code. Police officers experienced in drug matters are frequently able to give admissible evidence about certain code words. Doubtless, where foreign language is used, code identification will be difficult. Regardless of whether the intercepted language is English or foreign, what meaning is to be ascribed to otherwise innocuous words will be entirely a jury matter to be considered in the context of both conversation and other relevant evidence.
Translation Issues in These Trials
[46] Although the transcript translations have been provided to defence counsel by the Crown, no specific objections to the translations have yet been raised. In large measure I gather this is because there have been difficulties in arranging appropriate opportunities for the accused remanded in custody to listen to the intercepted conversations which implicate them. Such a process will need some assistance from translators because, although various accused will doubtless be able to understand
what they are recorded saying in Mandarin or Cantonese, they might not be in a position to check the accuracy of the written English translation.
[47] As I understand it, both the Crown and the police have done their best to provide to the Department of Corrections the discs and equipment to allow intercepted communications to be played to relevant accused. Several difficulties have, however, arisen. Some accused are remanded in Mt Eden Prison. Others are remanded in the Auckland Central Remand Prison. I am told the prison authorities have not yet made sufficient time and opportunity available so the accused can hear the relevant intercepted conversations. Counsel also advise me that the available facilities (quite apart from time constraints) are inadequate. There have been concerns expressed about personal computers and cramped space.
[48] This is not an area where I have any power to make directions. Nor do the Crown or the police. However, there is an important access to justice issue here. The accused are on remand. They are not currently serving any sentence. They face a lengthy trial with potentially serious personal consequences. It is a fundamental principle of justice that an accused is entitled to a fair trial. This involves both preparation and an assessment of the evidence available to the Crown.
[49] It is thus this Court’s expectation that a considered system be put in place to enable all the accused in these trials, regardless of their nationality, to have access in an appropriate room with their counsel, and a translator if necessary, so that relevant conversations can be heard and considered on the equipment with which the Department of Corrections has been provided.
[50] I direct both the Crown and the High Court Registrar to send a copy of my judgment, with these comments highlighted, to both the Auckland Central Remand Prison Manager and to the Chief Executive of the Department in Wellington so that the responsibility for any future impediments (which I hope will not occur) is clear.
[51] I appreciate that the Department must operate under and enforce relevant regulations relating to security and safety. Nonetheless there must be sufficient
flexibility available under those regulations to ensure fundamental justice issues are not rendered worthless.
[52] I direct that all accused by 30 October 2008 are to inform the Crown of any objections they have to the accuracy of the translated transcripts. Objections to voice attributions should also be notified by the same date.
Section 130 Notice
[53] Interlinked with that s 22 Notice and its invocation of s 135 the Crown has also served notice under s 130. This provides:
130 Offering documents in evidence without calling witness
(1) A party may give notice in writing to every other party that the party proposes to offer a document (whether or not a public document), a copy of which is attached to the notice, as evidence in the proceeding without calling a witness to produce the document.
(2) A party who on receiving a notice wishes to object to the authenticity of the document to which the notice refers, or to the fact that it is to be offered in evidence without being produced by a witness, must give a notice of objection in writing to every other party.
(3) If no party objects to a proposal to offer a document as evidence without calling a witness to produce it, or if the Judge dismisses an objection to the proposal on the ground that no useful purpose would be served by requiring the party concerned to call a witness to produce the document,—
(a) the document, if otherwise admissible, may be admitted in evidence; and
(b) it will be presumed, in the absence of evidence to the contrary, that the nature, origin, and contents of the document are as shown on its face.
(4) A party must give notice of a proposal to offer a document without calling a witness to produce it—
(a) in sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the proposal; or
(b) within the time, whether before or after the commencement of the hearing, that the Judge allows and subject to any conditions that the Judge imposes.
(5) A party must give notice of objection to a proposal to offer a document without calling a witness to produce it—
(a) in sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the notice; or
(b) within the time, whether before or after the commencement of the hearing, that the Judge allows and subject to any conditions that the Judge imposes.
(6) The Judge may dispense with the requirement for a party to give notice under subsection (1) or (2) subject to any conditions that the Judge imposes.
(7) This section is subject to sections 131 and 132.
[54] As the hearing developed before me it was unnecessary to hear argument on this aspect. The s 130 Notice was designed to ensure admission of both the transcripts and the translations without the need to call the transcribers and the translators.
[55] Given the matters canvassed in the previous section of this judgment it would be premature to make any rulings under s 130. Nonetheless it is this Court’s expectation that all counsel will cooperate to ensure that unnecessary formal evidence establishing the transcription and translation process is avoided.
Next Call
[56] Given the directions made, no further action is required at this stage other than to adjourn all matters raised by the Crown under ss 22, 130, and 135.
[57] The Registry is directed to convene a conference before the Criminal List Judge on the first available date after 30 October 2008, both to monitor progress and make directions to resolve any issues which have emerged.
……...…...............................................… Priestley J
Counsel:
A R Burns and MJF Wright, Meredith Connell & Co, P O Box 2213, Auckland 1140 Fax: 09 336 7629
S J Bonnar, P O Box 2674, Shortland Street, Auckland 1140. Fax: 09 379 5066. Email [email protected]
M Kan, P O Box 6462, Wellesley Street, Auckland 1001. Fax: 09 357 6356. Email: [email protected]M S Gibson, 34 London Street, St Marys Bay, Auckland 1001. Fax: 09 376 4090. Email: [email protected]
T A Simmonds, P O Box 3815, Auckland 1140. Fax: 09 379 4499. Email: [email protected]
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