R v Liev

[2017] NZHC 830

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

CRI-2016-092-5315 [2017] NZHC 830

THE QUEEN

v

SENG LEK LIEV SODARITH SAO

APHICHART KORHOMKLANG LUIGI HAVEA

MASI VAIFALE JOSEPH BENJAMIN HAURUA TEVITA MATANGI FANGUPO

Hearing:	26 April 2017
Appearances:	G Kayes and H Benson-Pope for Crown M W Ryan for S L Liev H B Leabourn on behalf of L Cordwell for S Sao H B Leabourn for A Korhomklang A Y Young on behalf of M Kan for L Havea J Munro and D Niven for M Vaifale M S Gibson for J B Haurua D M M Dickinson and S R Lack for T M Fangupo
Judgment:	28 April 2017

JUDGMENT OF PALMER J [HEARSAY AND PHOTOGRAPH EVIDENCE]

This judgment is delivered by me on 28 April 2017 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

R v LIEV & ORS [2017] NZHC 830 [28 April 2017]

Summary

[1]      The defendants face trial commencing 1 May 2017 for manslaughter and/or kidnapping. The Crown has given notice it intends to rely on hearsay evidence in text messages.  Three defendants oppose the admissibility of texts on the basis the Crown does not have reasonable evidence showing they are part of the conspiracy.  In this preliminary ruling, on the basis of the information currently before me, I do not agree. I do not rule the texts inadmissible.

[2]      Several defendants also object to the admissibility of certain photographs.  I rule, on the basis of the information before me, the photographs are relevant and have probative value.  Their probative value is not outweighed by the risk of an unfairly prejudicial effect on the proceeding. The photographs are admissible.

The trial

[3]      The Crown’s case is that some of the defendants engaged other defendants who were members of the “Ghost Unit”, an element of the Head Hunters gang.  It says the group was engaged, in  that capacity, as hired  muscle to kidnap the victim, Ms Pruitsiriporn.   It says they attempted to do so on 14 and 15 February 2016 and succeeded in doing so on 29 February and 1 March 2016.   The Crown says Ms Prutsiriporn died from injuries she sustained from assaults while detained and from trying to escape her kidnappers by climbing out of the boot of a moving car on 1 March

2016.

[4]      Eleven defendants were charged with the kidnapping of Ms Prutsiriporn and six were charged with her manslaughter:

(a)      Mr Liev, Mr Korhomklang, and Mr Luigi Havea were charged with manslaughter and kidnapping and face both charges at trial.

(b)Mr Haurua and Mr Vaifale have pleaded guilty to kidnapping and Mr Sao intends to do so at the commencement of trial.  They were also charged with manslaughter and will face only that charge at trial.

(c)      Mr Fangupo was charged only with kidnapping and faces that charge at trial.

(d)Ms Hansen, Mr Paleaaesina, Mr Panepasa Havea and Mr Brown have pleaded guilty to, and been convicted of, kidnapping.

[5]      The manslaughter charges are brought under s 160(2)(d) of the Crimes Act

1961, requiring the prosecution to establish the actions of a principal defendant caused the deceased, by threats or fear of violence, to do an act which caused her death.  Her act must be the kind which could reasonably have been foreseen by reasonable and responsible persons in the shoes of the principal defendant.

[6]      The  kidnapping  charges  are  brought  under  s  209(b)  of  the  Crimes Act, requiring the prosecution to establish a principal defendant unlawfully detained Ms Prutsiriporn without her consent, knowing there was no consent and intending to cause her to be confined.

[7]      The trial is due to start on 1 May 2017 and has been set down for 12 weeks.

Hearsay evidence

[8]      The Crown has given notice of its intention to offer hearsay statements in evidence at the trial, under s 22 of the Evidence Act 2006 (the Act).  These are text messages included in tables provided to the defendants on 13 April 2017.

[9]      The Crown submits the texts that are hearsay statements are admissible under s 22A of the Act.  I agreed with counsel for Mr Liev and Mr Fangupo that question should be dealt with before trial and I heard submissions on 26 April 2017.1

Law

[10]     When the Act was passed in 2006 there was debate about whether s 27(1), as it then was, prohibited the admissibility of hearsay evidence under what had previously been known as the “co-conspirators  rule” under the common law of evidence.  Section 12A was added to preserve that rule, explicitly, while the question

was further addressed.2   In 2013 the Law Commission recommended deleting s 12A

1 Minute No 3 of 12 April 2017 at [13].

2      The leading text explains the background of s 12A: Richard Mahoney and others The Evidence

Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [12A.02].

and inserting a new provision codifying the three threshold issues a judge must determine for the co-conspirators’ exception to apply.3    Accordingly, s 22A was inserted in the Act on 8 January 2017 and provides:

22A      Admissibility of hearsay statement against defendant

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.

[11]     I accept that, in enacting s 22A, Parliament intended to preserve the common law co-conspirators’ rule and to codify these three threshold issues. The parties agree that the defendant’s membership of the conspiracy, under s 22A(b), cannot be proved by reference to what is said in the defendant’s absence.4  The Court of Appeal has said:

5

The common purpose must be continuing at the time of the act or statement. A statement recording that what has been done has been completed, either successfully or, as in this case, unsuccessfully, is not within the scope of the principle.

And:6

We note that while a conversation that is solely about events that have already taken place would not be admissible, if it can be shown that the discussion is for the purposes of keeping the conspirators informed about what is going on so as to ensure that the conspiracy is able to proceed on its course, it will be admissible under the co-conspirators rule.

[12]     A “hearsay statement” is defined in s 4 to mean “a statement that (a) was made by a person other than a witness; and (b) is offered in evidence at the proceeding to

prove the truth of its contents”.  And a “statement” is defined to mean “(a) a spoken

3      Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R 127, 2013) at [3.88]- [3.122], particularly [3.112].

4      R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [12].

5      Goffe v R [2011] NZCA 186, [2011] 2 NZLR 771 at [50].

6      Kayrouz v R [2014] NZCA 139 at [37].

or written assertion by a person of any matter or (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter”. The Court of Appeal has recently stated that if the speaker “intended to convey the meaning relied upon” what is said qualifies as such a “statement” but “[i]f the speaker did not so intend but reliance is nevertheless sought to be placed upon the inferences sought to be drawn from the statement, the statement will fall outside the definition”.7   What reliance is sought to be placed on what is said is therefore crucial to whether it qualifies as a “statement”.

[13]     The Law Commission also recommended that s 22A “should be subject to the notice provision in s 22, and s 27(1) should be amended to clarify that the restriction on admissibility in relation to co-defendants is subject to the new provision”.8  Section

27(1) was amended but not quite along those lines.  Rather than the previous blanket prohibition of admissibility of a defendant’s statement against a co-defendant, it now states “[e]vidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.” Section 27(1) does not prohibit admissibility of evidence that is not a “statement” as explained above.

[14]     The drafting of s 27(1) creates a question.   It states that evidence of any statement by a defendant is only admissible against a co-defendant if admitted under s 22A.  Yet s 22A only deals with the admissibility of hearsay statements.  Can other statements by a defendant, that are not hearsay, be admitted against a co-defendant? The drafting of s 27(1) suggests not. That may be consistent with the previous version of s 27(1).  But it doesn’t sit well with the nature of the co-conspirators’ rule as an exception to inadmissibility only on the basis of hearsay.

The issues here

[15]     At the beginning of the hearing I indicated I proposed to issue a preliminary ruling on objections to the applicability of ss 22A(a) and (b) to the evidence in issue

(whether there was a conspiracy and whether a defendant was involved in the conspiracy). That does not prevent those issues being revisited if, at trial, the evidence turns out not to be as the Crown submits it will be.

[16]     I also indicated I did not consider I am in a position to rule on whether individual texts constituted “statements” in terms of the Act where I do not know what the Crown relies on them for.  I indicated, for the same reason, I am not in a position to rule on whether an individual text was a statement made in furtherance of a conspiracy, under s 22A(c) of the Act.  Mr Kayes indicated he had no difficulty with my proposed approach. None of the defendants’ counsel indicated they had difficulty with it either.

[17]     The issue with s 27(1) identified above was not argued before me and the generic nature of this preliminary ruling means I do not have to rule on it at present. If it becomes an issue at trial, I would invite submissions from counsel.

[18]     Counsel for Mr Liev, Mr Korhomklang and Mr Fangupo filed memoranda objecting to the Crown’s intention to offer hearsay statements in evidence at trial.

Mr Korhomklang

[19]     Mr Leabourn, for Mr Korhomklang, concedes there was a conspiracy from

29 February 2016 but denies Mr Korhomklang was aware of it or participated in it. He submits the Crown’s case that Mr Korhomklang was part of the conspiracy depends on witness testimony.  If the testimony does not show he was part of the conspiracy then Mr Leabourn submits s 22A(b) will not be satisfied in relation to texts that are admissible under that section.  But, he says, that would have to be addressed during the trial. The Crown was therefore not required to respond to the objection at this pre- trial hearing.

Mr Liev

[20]     Mr Ryan, for Mr Liev, did not dispute there was a conspiracy. He also accepted there is reasonable evidence to support Mr Liev joining the conspiracy on Monday 29

February 2016.  But he raised five issues.

[21]     First, Mr Ryan submitted there is no reasonable evidence to support Mr Liev being involved in the conspiracy on 14 February 2016 and so he opposes the admissibility of hearsay statements before 29 February 2016.   Mr Kayes, for the Crown, submitted there is reasonable evidence, other than the hearsay statements, establishing Mr  Liev  as  the instigator  of the kidnapping.    I understand  witness testimony, particularly from Mr Ing, supported by Mr Liev's polling data and texts between Mr Liev and Mr Havea on the afternoon of 14 February, may do that.  On a preliminary basis, until that testimony is assessed at trial and found not to constitute such reasonable evidence, I consider hearsay statements before 29 February 2016 are admissible.  The alternative motive Mr Ryan suggests can be considered by the jury alongside that evidence.

[22]     Second, Mr Ryan submitted text messages from Mr Sao, to a number that was one digit different from Mr Liev’s mobile number, were not admissible against Mr Liev.9   Mr Kayes submitted the Crown would not rely on those texts for the truth of their content but to demonstrate Mr Sao was seeking guidance from Mr Liev. On that basis I accept they are not hearsay statements.

[23]     Third, Mr Ryan submitted the texts by Mr Sao about Ms Prutsiriporn jumping out of the boot are inadmissible as they merely reported what had happened and were not in furtherance of the conspiracy.10  This may be answered by my conclusion in the previous paragraph but I also accept Mr Kayes’ submission that the text tends to show Mr Sao was updating Mr Liev in an attempt to ensure the conspiracy was able to proceed on course.

[24]     Fourth, Mr Ryan submitted a large number of texts are incidental to the conspiracy and are not intended to advance or further its common purpose. Mr Kayes submitted that texts responded to were effectively accepted and otherwise the Crown would not rely on those texts for the truth of their contents but to show the two men had been together recently.  On the basis the Crown is not relying on the texts for the truth of their contents I would accept such texts are not hearsay statements.

[25]     Fifth, Mr Ryan submitted particular texts were incidental and have nothing to do with furthering the joint enterprise.11  Mr Kayes accepted those texts were not, and were not intended to be, admissible against Mr Liev.

Mr Fangupo

[26]     Mr Mansfield, in written submissions for Mr Fangupo, and Mr Lack in oral submissions, did not take issue with a conspiracy having existed.  They did dispute that there was reasonable evidence to establish Mr Fangupo’s membership of the conspiracy. Alternatively, Mr Lack submitted that at best Mr Fangupo’s membership only began on the morning of 1 March 2016.  He pursued three issues in particular.

[27]     First, Mr Lack objected to reliance on texts to Mr Fangupo that he did not answer (and to what inferences were available from texts on 15 February 2016).

Mr Kayes responded that the Crown does not rely on the unanswered texts to prove membership of the conspiracy under s 22A(b). The Crown relies on separate evidence to prove Mr Fangupo’s participation, as examined in my judgment of Mr Fangupo’s s

147 application, in addition to other texts sent by Mr Fangupo.12  I accept the Crown’s

response.

[28]     Second, Mr Lack objected there is insufficient evidence to attribute the texts on Mr Fangupo’s partner’s phone to Mr Fangupo so they cannot form part of the reasonable evidence that Mr Fangupo was part of the conspiracy.  I decided in the s 147 judgment that the text exchange between Mr Fangupo’s partner’s phone and Mr Haurua at 9.24 am, 9.39 am and 9.41 am suggested Mr Fangupo was using his partner’s phone.13   If the Crown is relying on the first of those texts to prove the truth of its contents it may be a hearsay statement. But I understand the second two of those texts are not hearsay statements as the Crown is not relying on them for the truth of their contents but for the inference Mr Fangupo was using his partner’s phone and was therefore involved in the conspiracy.  In any case, irrespective of the texts from Mr

Fangupo’s partner’s phone, I consider there is sufficient evidence of Mr Fangupo’s

11     All Evidential Phone Content, page 50 of 51, texts 360-371.

12     Fangupo v R [2017] NZHC 736 at [19] to [21]. And All Evidential Phone Content, page 14 of 51, texts 343 and 359.

13     At [21](a).

involvement in the conspiracy from text exchanges and cellphone data from 14 and 15

February, the text exchanges with Mr Oloamanu and the text messages and phone calls on 1 March 2016.

[29]     Third, Mr Lack objects to texts from Ms Brinsden, who will not be a witness, being used as evidence to show Mr Fangupo was a member of the conspiracy for the purposes of s 22A(b).  Mr Kayes clarified that they would not be relied upon for the truth of their contents, but to provide a reliable context for the admissible texts, and testimony, of the Crown witness, Mr Oloamanu, who received them.  A text from

Mr Fangupo to Mr Oloamanu is relied upon to show Mr Fangupo was present at the attempted kidnapping on 14 February 2016.  On that basis I am satisfied they are not hearsay statements and can be used for the purposes of s 22A(b).

Photographs

[30]     Mr  Gibson,  counsel  for  Mr  Haurua,  objected  to  the  admissibility  of photographs of Head Hunters regalia in the Crown’s photograph booklet.14  Mr Gibson said he was speaking in a “unified voice” on behalf of the other individuals affected – Mr Havea, Mr Vaifale and Mr Fangupo.   Mr Munro, for Mr Vaifale, made further submissions on the point.

Submissions by defendants.

[31]     Mr Gibson says those defendants are prepared to concede their association with each other. They are part of the Tongan community and work as bouncers or a security unit at events.  They refer to themselves as the Ghost Unit. Mr Gibson says he is instructed Mr Haurua was able to use the Head Hunters gym but he was not a patched member of that gang.  Mr Gibson submits the references to the Ghost Unit and to the Head Hunters gang do not advance the Crown’s case.  He submits their acceptance of their association and, perhaps, of being part of something called the Ghost Unit, should satisfy the Crown’s desire to link the parties.   But he questions the relevance of

reference to the Head Hunters gang which, he submits, is prejudicial and is not

14     Proposed  Exhibit  1,  Court  Booklet  Reference AK-17-02752R chapter  20:  pages  263-264, photographs 321, 322, (and presumably 323 and page 265, photograph 324); chapter 21: page 271, photograph 330 (and presumably 331); chapter 34, page 537, presumably to page 541.

probative. He says the notoriety of the Head Hunters has the potential to undermine a fair trial by suggesting guilt by association.   Mr Gibson was not sure whether Mr Haurua was wearing Head Hunters regalia in any of the photographs.

[32]     Mr Munro, for Mr Vaifale, submits the reference to the Head Hunters gang would be overwhelmingly prejudicial compared to marginal probative value.   He submits there is no evidence these defendants were engaged for the purpose of intimidation or performed their function as Head Hunters. He is instructed Mr Vaifale denies being a patched member of the Head Hunters.  Mr Munro believes Mr Vaifale is depicted wearing Head Hunters regalia in the photographs.

Submissions by Crown

[33]     Mr Kayes, for the Crown, says that if it could be agreed that the defendants are members of the Ghost Unit which is a group within the East Chapter of the Head Hunters, the relevance of much of the photographic material might drop away.  To avoid any risk of prejudice the Crown attempted to obtain admissions to that effect from the defendants.  But that was rejected and, because it is not agreed, the Crown has to prove what is relevant.

[34]     Mr Kayes says the evidence is that the Ghost Unit is a unit within the Head Hunters gang and the defendants who object are members of it.  Mr Kayes says these defendants’ membership of the Ghost Unit is relevant to a number of issues in the trial, including: the nature and closeness of the association between the defendants; Mr Liev’s reasons for approaching this particular group; and what each defendant believed or knew as to the fear or the threat of violence instilled in the victim, Ms Prutsiriporn.

Law

[35]     Evidence that is not relevant is not admissible, according to s 7 of the Evidence Act 2006. Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.  Mr Gibson appears to question the relevance of the photographs.  And Mr Gibson and Mr Munro appear to rely on s 8(1)(a) of the Evidence Act 2006:

8        General exclusion

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

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

(b)      needlessly prolong the proceeding.

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

Decision

[36]     I agree there is evidence supporting the Crown’s proposition that the Ghost Unit is a unit within the Head Hunters gang and the objecting defendants are members of it, including the following:

(a)      Texts Mr Kayes handed up from Mr Vaifale and Mr Haurua which make extensive reference to the Ghost Unit and the Head Hunters gang via shorthand such as “HHFFHH”, “88” and “Ghost Unit”, the meaning of which Mr Kayes says Detective McNaughton will explain in evidence (he will testify, for example, that “HHFFHH” means “Head Hunters Forever,  Forever  Head  Hunters”).    One  of  these  (at  22:23  on  20

December 2015) indicates Mr Haurua would be “patching up”.

(b)      There  are  references  to  the  “Ghost  Unit”  in  texts,  including  by

Mr Fangupo’s partner’s phone to Mr Haurua at 9.24 am on 1 March

2016.

(c)      Other photographs of large tattoos of Mr Vaifale and Mr Haurua saying, respectively, “HHFFHH”, and, in the same font and colour, “Ghost Unit”.15

(d)I also note that in the full Crown list of texts for trial another defendant, Mr Palaeaasina (who has pleaded guilty) stated on 1 March 2017, at

16:12, he will get his full patch in April.

[37]     I also agree that proposition of the Crown’s is relevant to the charges faced by these defendants because:

(a)      It goes to the closeness of the association between these men acting as an organised unit.  It rebuts argument by the defendants that the texts were just between friends catching up.

(b)It is relevant to explaining the organised nature of the group Mr Liev allegedly approached to kidnap Ms Prutsiriporn and, therefore, to his understanding of how the group would be likely to approach their job.

(c)      It is relevant to what each of the defendants believed about the threat of violence to the victim and whether her actions in trying to escape were reasonably foreseeable.

[38]     I consider the photographs objected to have probative value in relation to the Crown’s proposition since they apparently link some of the defendants directly to the Head Hunters gang.  I further consider that exclusion of evidence of that link would create an artificial and, potentially, misleading version of events to the jury.16  The jury would be deprived of evidence of what the Crown says is part of the real reason for the participation of some of the defendants in the alleged offending.  Exploration of the linkage between these defendants, the Ghost Unit and the Head Hunters is a legitimate part of the factual matrix for a jury to consider.

[39]     The defendants’ counsel are undoubtedly correct that association with the Head Hunters also has a prejudicial effect. But it is not the only evidence of that association. Without the photographs the Crown would no doubt still pursue its proposition with the jury, with reference to other evidence of the association.  So the prejudicial effect of the photographs is not the same as the prejudicial effect of any suggestion of

association of the defendants with the Head Hunters gang. And I consider it is not an unfairly prejudicial effect for the reasons above.  The risk of any unfair prejudice can be adequately mitigated by a suitable direction to the jury.17

[40]     Based on the information currently before me, I rule the photographs that are subject to objection are admissible.

..................................................................

Palmer J

Counsel/Solicitors:

Kayes Fletcher Walker, Manukau

M W Ryan, Barrister, Auckland

H B Leabourn, Barrister, Auckland A Y Young, Barrister, Auckland Michael Kan Law Limited, Auckland J D Munro, Barrister, Auckland

M S Gibson, Barrister, Auckland

D M M Dickinson, Barrister, Auckland
S R Lack, Barrister, Auckland