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R v Messenger

R v Messenger

Case [2008] NZCA 13 17 February 2009

Admissibility of Evidence

Co-conspirators Exception

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Messenger [2008] NZCA 13
Case: [2008] NZCA 13
Decision Date: 17 February 2009

CaseChat Overview and Summary

This appeal concerns the admissibility of co-conspirator statements in a criminal trial. The Court of Appeal was asked to determine whether certain statements made by co-conspirators were properly admitted as evidence against the accused. The case centred on the application of the co-conspirators exception under the Evidence Act 2006, which allows statements and acts of co-conspirators to be admitted against an accused if they were made or done in furtherance of the common purpose. The primary legal issue was whether the trial judge correctly applied the criteria for admitting co-conspirator statements and whether the evidence met the necessary threshold for admissibility.

The Court of Appeal found that the trial judge correctly applied the legal principles governing the admissibility of co-conspirator statements. The Court confirmed that for such evidence to be admissible, the Crown must establish three threshold issues: the existence of a conspiracy or joint enterprise, the accused's membership in that conspiracy or joint enterprise, and that the statements or acts were made or done in furtherance of the conspiracy or joint enterprise. The Court held that the trial judge had appropriately assessed these criteria and determined that the co-conspirator statements were properly admitted. The Court also emphasized the importance of giving appropriate cautionary directions to the jury regarding the potential unreliability of such evidence.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision to admit the co-conspirator statements. The Court held that the trial judge had correctly applied the relevant legal principles and that the evidence met the necessary criteria for admissibility. The Court further noted that the cautionary directions given to the jury were appropriate to address any potential unfairness arising from the admission of such evidence.

Orders