R v O'Carroll
[2015] NZHC 2152
•4 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-5509 [2015] NZHC 2152
THE QUEEN
v
DAVID GERRARD O'CARROLL TERRY JONES
Hearing: 1 and 2 September 2015 Appearances:
R M McCoubrey and K Eastwood for Crown
S J Bonnar QC and C S Fredric for D G O'Carroll
A J D Bamford for T JonesJudgment:
4 September 2015
JUDGMENT OF M PETERS J
This judgment was delivered by Justice M Peters on 4 September 2015 at 5 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Bamford Law, Nelson
Counsel: S J Bonnar QC, Auckland
C S Fredric, Auckland
R V O’CARROLL [2015] NZHC 2152 [4 September 2015]
[1] The defendants in this matter, Mr O’Carroll and Mr Jones, are charged as part
of a wider police investigation known as Operation Genoa (the “Operation”).
[2] This judgment records my reasons for decisions made earlier this week in respect of two applications, the details of which are these.
[3] First, the Crown applied to adduce evidence of convictions of Ms Shannon Stevens and of Mr Michael Cavanagh, also charged as part of the Operation. I heard argument on this application on 1 September 2015 and on 2 September 2015 advised the parties that I would grant the application.
[4] Secondly, having informed the parties of my decision on the first application, I heard applications by Mr O’Carroll for discharge on charges 1 and 2 and by Mr Jones on charges 6 to 9 inclusive, pursuant to s 147 Criminal Procedure Act
2011. I discharged Mr O’Carroll on charge 1 and Mr Jones on charges 8 and 9.
Evidence of convictions
[5] The Crown applied to adduce evidence of:
(a) two convictions of Ms Stevens for manufacturing methamphetamine so as to establish against Mr O’Carroll that a manufacture of methamphetamine occurred on or about 9 March and 12 April 2014.
(b)two convictions of Mr Cavanagh, one for supply of ephedrine (a class B drug) and the other for supply of materials. The Crown sought to adduce this evidence as part of its case against Mr Jones. I need not say any more about this application as ultimately counsel resolved the matter between themselves.
[6] Mr O’Carroll (now) faces three charges of manufacturing methamphetamine, two with Ms Stevens and others on or about 12 March and 9 April 2014, and a third with Mr Nigel Bowker on or about 5 May 2014. Mr Bowker was also charged with various offences as part of the Operation.
[7] There is no dispute that a manufacture of methamphetamine took place in each of March and May 2014. The police found a “cook” in progress when they raided a property on the May date. As to March, the evidence includes photographs of Ms Stevens placing a chilli bin in a storage unit under her control on 12 March
2014, with a search shortly thereafter revealing that the bin contained a substantial quantity of methamphetamine.
[8] However, in the absence of evidence of Ms Stevens’ conviction, the Crown
would have to persuade the jury to infer such a manufacture on the April date.
[9] Given the acknowledgment as regards manufacture in March, evidence of Ms Stevens’ conviction of manufacturing on or about that date is unnecessary, but I accept the Crown’s submission that it should be included for the sake of completeness, if the conviction in respect of the April date is to be admitted.
[10] Section 49(1) Evidence Act 2006 (“Act”) provides:
49 Conviction as evidence in criminal proceedings
(1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.
…
[11] Accordingly, evidence of Ms Stevens’ convictions is admissible, subject to its
exclusion pursuant to another provision in the Act.
[12] Counsel referred me to several cases in which s 49 has been applied, including instances in which evidence of conviction has been excluded.1 I considered these authorities in reaching my decision to allow the Crown to adduce
evidence of Ms Stevens’ convictions.
1 R v Taniwha [2012] NZCA 605; R v Cunnard HC Nelson CRI-2011-442-026, 2 May 2011; R v Ma [2015] NZHC 717; R v CARC & Ors [2014] NZHC 709; R v Bouavong [2012] NZHC 524; R v Tanginoa [2012] NZHC 3121; and R v Nguyen HC Auckland CRI-2008-92-17198, 17
September 2010.
[13] Counsel for Mr O’Carroll submitted that the evidence should be excluded as its probative value was outweighed by the risk that it would have an unfairly prejudicial effect on the proceeding, and diminish Mr O’Carroll’s right to offer an effective defence (s 8 of the Act). If admitted, there would no longer be an issue as to whether there had been a manufacture in April 2014. Evidence of the conviction in respect of that date would constitute conclusive proof of manufacture at that time, whereas that otherwise would be a real issue on charge 3.
[14] Although that latter point is correct, it does not render admission of evidence of Ms Stevens’ convictions unfair. In that respect, the evidence is on a par with the photographs and findings in the covert search to which I have referred. That evidence is equally prejudicial in that it establishes a manufacture took place but it is not unfair to admit it.
[15] Counsel also submitted that, as the convictions arose from guilty pleas by Ms Stevens, rather than following a defended trial, evidence of the conviction might not merit the “conclusive” weight which s 49(1) stipulates.
[16] By way of background, at the outset of this proceeding Ms Stevens was charged with numerous offences including several of manufacture. Shortly before the trial was to commence on 24 August 2015, the Crown withdrew a number of charges, including some of manufacture, and Ms Stevens pleaded guilty to others including those now in issue. In those circumstances, Ms Stevens might have been rather more concerned with the number of charges to which she was to plead rather than matters such as the date on which each manufacture was said to have taken place.
[17] For what it is worth, Ms Stevens appears to have been a well represented defendant and she disputed a number of applications by the Crown. She could not be said to have “rolled over” lightly. But the short answer to counsel’s submission is that s 49(1) provides that evidence of a conviction is conclusive proof of commission of the offence. It cannot be unfairly prejudicial to allow evidence to be adduced simply because the Act provides that it is conclusive.
[18] For those reasons, I allowed the Crown to adduce the evidence and that in turn led to an agreed statement being put before the jury. That said, I did not allow the Crown to adduce evidence that Ms Stevens pleaded guilty to committing the offence at Waikato. The place of commission is not an element of the offence and I am satisfied that particular might prove unfairly prejudicial to Mr O’Carroll.
Application for discharge
[19] Section 147 Criminal Procedure Act 2011 provides:
147 Dismissal of charge
(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
...
(4) Without limiting subsection (1), the court may dismiss a charge if—
(a) the prosecutor has not offered evidence at trial; or
(b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
...
Mr O’Carroll
[20] Mr O’Carroll sought to be discharged on charges 1 and 2.
[21] Charge 1 is an alleged manufacture in Rotorua on or about 28 February 2014. The evidence adduced by the Crown in respect of this charge comprises:
(a) photographs of a large trailer being driven from and returned to a storage unit in East Tamaki on or about 28 February 2014, on each occasion towed by a vehicle registered in the name of Mr Bowker. It is part of the Crown case that when the trailer leaves the storage unit, methamphetamine is manufactured; and
(b) text messages between Mr O’Carroll and others.
[22] I do not consider that a properly directed jury could reasonably convict Mr O’Carroll on charge 1 on such evidence. There is no evidence that a manufacture took place, let alone evidence from which the jury could infer that Mr O’Carroll participated in the same.
[23] I discharged Mr O’Carroll on charge 1 accordingly.
[24] I declined to discharge Mr O’Carroll on charge 2 however. That is because, aside from evidence that the trailer was taken from and returned to the unit, Ms Stevens and her partner, Mr Peter Shaw, were observed purchasing several bags of ice from two or more service stations; Ms Stevens was surveilled in the location of a property occupied (at least in part) by Mr O’Carroll; and data indicates that cellphones attributed to Ms Stevens, Mr Bowker and Mr O’Carroll were all “polling” at the same cell site for several hours that afternoon. There is also clear evidence of manufacture.
Mr Jones
[25] I discharged Mr Jones on charges 8 and 9. Those charges allege possession of equipment, being a parr bomb and distiller pipe, and a firearm without a lawful, proper and sufficient purpose.
[26] These items were found in a storage unit in Nelson on 7 May 2014.
[27] Mr Shaw opened that unit on 28 April 2014. CCTV footage from that day shows that he and Ms Stevens placed several items in the unit, including the “suit carrier” in which the equipment was found, and the firearm. I am satisfied that there is no evidence on which a properly directed jury could convict Mr Jones on these charges.
[28] Mr Jones also sought a discharge in respect of charges 6 and 7, being charges that he possessed ephedrine for the purpose of supply, and material, that is iodine, capable of being used in the manufacture of methamphetamine.
[29] It is not in dispute that those items originated from a storage unit in Panmure under the control of Mr Cavanagh. Mr Cavanagh is Mr Jones’ nephew. Mr Jones and Ms Stevens drove to Nelson on 23 and 24 April 2014 and the Crown case is that they or one of them received the items from Mr Cavanagh, and that the material was transported in Mr Jones’ (just purchased) BMW and were put in the unit to which I have referred with Mr Jones’ full knowledge and approval. Mr Jones himself accessed the unit on 5 May 2014 and there is no dispute that he placed a substantial sum of cash in a backpack in the unit.
[30] I am satisfied that a properly directed jury might reasonably infer from this evidence that Mr Jones was in possession of the items referred to in those charges.
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M Peters J