R v Messenger
[2008] NZCA 13
•17 February 2009
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NOTE
R v Messenger
Court of Appeal Wellington CA646/07; [2008] NZCA 13
7, 29 February 2008
Glazebrook, Hammond and Chambers JJ
The judgment of the Court was delivered by
GLAZEBROOK J.
[Editorial note: [1]–[7] and [25]–[43] are omitted from this note.]
The co-conspirators exception
[8] In circumstances where the co-conspirators exception applies, statements made or acts done by one or more alleged offenders in the absence
of the accused but in furtherance of the common purpose are admissible against the accused and, in the case of statements, as evidence of their truth. Whether such statements and acts are admissible is a question of law for the trial Judge, but if properly admissible, they become evidence which the jury is entitled to consider – see R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [15].
[9] Section 12A of the Evidence Act 2006 preserves the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises. Section 27, which provides that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in
the proceeding, is expressly made subject to s 12A.
[10] The rationale for the admission of evidence of the acts or words of one
member of a criminal conspiracy or joint enterprise against another member is that the joint enterprise to commit a crime is considered as implying an authority to each of the members of that enterprise to act or speak in
furtherance of the common purpose on behalf of the others – see R v Tripodi (1961) 104 CLR 1 at 7 and Qiu at [24], H Malek et al (eds) Phipson on Evidence (16th ed, Sweet & Maxwell, United Kingdom, 2005) at [31-44] and Garrow & Turkington’s Criminal Law (looseleaf, last updated December 2007) at [CRI310.10].
[11] Before the acts or declarations of one alleged conspirator will be admitted as evidence against any accused, three threshold issues have to be determined by the judge:
(a) that there was a conspiracy or joint enterprise of the type alleged;
(b) that the accused was a member of that conspiracy or joint enterprise;
and
(c) that the statements were made and/or the acts were done in furtherance
of the conspiracy or joint enterprise.
[12] In terms of the matters set out at [11(a) and (b)], it is sufficient for the
Crown to show that there was reasonable evidence that there was a conspiracy
or joint enterprise and that it involved the accused. The phrase “reasonable evidence” connotes evidence which of itself would not sustain a verdict of guilt but which is of such a nature that the judge considers it safe to admit the evidence of a co-conspirator. See R v Buckton [1985] 2 NZLR 257 (CA) at 258
per Cooke J and at 263 per Somers J, as approved by the Supreme Court in 5
Qiu at [28]. See also Cross on Evidence (looseleaf, last updated
December 2007) at [EVA18.5]. Where admissibility has been determined before the commencement of the trial on the basis of provisional or incomplete evidence, the position may need to be reviewed in the course of the trial as the indications for admission may have weakened – see Qiu at [31]. 10 [13] Turning to each requirement in turn, beginning with that set out
at [11(a)] above, the existence of the conspiracy or joint enterprise must be shown to the requisite standard without the use of hearsay evidence. Statements made by other persons about what they are intending to do, against the
background of their statements about what they have done, however, can be led 15 as evidence of the state of mind of those other persons at the time of speaking.
Such statements are led not to prove the truth of the participation of a person who is not a party to the conversation, but as facts from which the existence of the agreement or combination to engage in an illegal common enterprise may
be inferred. The existence of a conspiracy can thus be shown by the statements 20 of all alleged participants, including what they have said about the accused –
see R v Morris (Lee) [2001] 3 NZLR 759 (CA) at [17].
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 25 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 (see Morris
(Lee) at [15], [20] and [26]).
Despite its nomenclature, the co-conspirators exception is not limited to 30 cases where there is a charge of conspiracy in the indictment – see Tripodi at 6.
If the Crown alleges a common purpose to do unlawful acts, the acts and statements of any one of the group pursuing the common purpose are admissible against the rest, whatever the charges brought against the particular accused and whether or not all group members are indicted. The distinction 35 between conspiracy and other offences is that, on a charge of conspiracy, combination is an element of the offence and not merely a ground for the admission of the evidence. See Phipson at [31-45].
There must, however, be a sufficient link between the alleged common enterprise or conspiracy and the counts in the indictment. Thus the common 40 enterprise or conspiracy must be of the type or kind of any conspiracy alleged
in the indictment – see Buckton at 262 per McMullin J. It follows that any substantive offences must also be of a type encompassed by the alleged conspiracy or joint enterprise. The co-conspirators exception cannot be extended to cases where individual accused are charged with a number of 45 separate substantive offences and the terms of any common enterprise or conspiracy are not shown or are ill-defined – R v Murray [1997]
2 Cr App R 136 (CA) at 148 and Phipson at [31-45].
[17] Where individual defendants are charged with separate substantive offences the prosecution must prove all of the elements of the substantive offences to the requisite standard on the basis of all evidence led, including that led under the co-conspirators exception – see Tripodi at 6.
[18] Turning to [11(b)], the accused’s membership of the conspiracy or joint enterprise cannot be shown by reference to what the conspirators have said about the accused in his or her absence. It is necessary for the Crown, having shown that there is reasonable evidence of a conspiracy or joint enterprise, to prove the accused’s membership of it to the requisite standard by independent
evidence, external to the statements which have been made in the absence of the accused – see Morris (Lee) at [18].
[19] The independent evidence must show at least the essential matters which constitute the conspiracy or joint enterprise and also that, on the facts as known to the accused, what the enterprise or conspiracy has agreed to do is unlawful
– see JF Archbold Archbold: Criminal Pleading, Evidence and Practice (56th ed, 2008) at [34-13] and [34-60(c)]. It is also not necessary for an accused to know the identity of all the parties to the conspiracy or joint enterprise. It may be quite commonplace for a conspiracy to occur where no one person knows more than one other person involved in the conspiracy. As
long as these individuals are aware that the enterprise goes beyond their agreement with that other person and knows in general terms the ambit of the conspiracy that is sufficient – see Archbold at [34-50].
[20] As noted at [11(c)], the third matter that must be shown is that the acts and statements sought to be admitted were made and done for the purpose of
advancing the common design – see Morris (Lee) at [31]. This means, for example, that statements made and acts done after the accused has ceased to be a member of the conspiracy or joint enterprise are not admissible against him or her under the co-conspirators rule.
[21] A theory of ratification, however, may allow a statement made by a
co-conspirator before a person joined the conspiracy to be admitted in order to prove the origin, character and object of the conspiracy but not the person’s participation in the conspiracy – see Phipson at [31]–[49]. As Chambers J said, in R v Mahutoto [2001] 2 NZLR 115 (HC) at [35], when a person decides to join a conspiracy after its inception, he or she is taken to have accepted the
plan as it has developed and the steps that have already been taken towards arranging the intended unlawful acts. He or she is thus taken as impliedly ratifying the steps already taken by the co-conspirators in furtherance of the common purpose.
[22] Finally, we discuss the directions the Judge should give to the jury when
evidence is admitted under the co-conspirators exception. Even when the three matters set out at [11] above are satisfied and evidence is properly admitted under the co-conspirators exception, there is the potential for unfairness to an accused unless accompanied by cautionary directions to the jury. The Supreme Court in Qiu endorsed the suggested directions of the Australian High Court in
R v Ahern (1988) 165 CLR 87 at 104:
It will be proper for [the judge] to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence.
Where it is appropriate, it will not be difficult to instruct a jury that they
should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow.
Shouldthe question of common enterprise have been considered separately in relation to each count?
Mr Messenger’s first argument was that the question of whether there 5 was a conspiracy or common enterprise should have been considered separately
in relation to each count without reference to the evidence related to the other counts.
There is no doubt, with regard to the substantive charges, that each of the
elements of those counts will have to be proved to the requisite standard by the 10
Crown – see Archbold at [34-39]. Evidence in relation to the other counts
(including co-conspirators’ acts or statements) will be admissible only if relevant to the count being considered, whether on a “propensity” basis under ss 40–43 of the Evidence Act or because it is directly relevant to the charge.
Appeal dismissed. 15
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