R v P CA389/03

[2004] NZCA 388

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANTS UNTIL TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA389/03 CA390/03

THE QUEEN

v

P1

P2

Hearing:         25 March 2004

Coram:McGrath J John Hansen J Nicholson J

Appearances: M I Sewell for Appellant P1

R G Glover for Appellant P2 A Markham for Crown

Judgment:      5 April 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1]    This is an appeal against a pre-trial ruling of a District Court Judge, dismissing a challenge to the admissibility of evidence of the involvement of two Christchurch gangs in tinnie house cannabis operations in Christchurch, and of the links to those gangs and their operations of two persons who face trial on a charge of possession of cannabis for the purpose of supply.

R V P1 And Anor CA CA389/03 [5 April 2004]

[2]    On 24 July 2002 the police executed a search warrant at XXXXX XX Road, Woodend, Christchurch where the appellants  Ms  P2  and  Mr  P1  reside.  Ms P2 is the tenant of the property. The police found 32 cannabis foils, cannabis seeds, a cannabis pipe, a tin foil roll and five cut out pieces of foil. The total weight of cannabis was 5 grams which is less than the weight giving rise to the statutory presumption of possession for purposes of supply (s6 Misuse of Drugs Act 1975).

[3]    During the search a Mangu Kaha gang patch was discovered by the police in the master bedroom of the searched premises. The Judge also found that the police had seen a photograph of the two accused in the house, dressed in Mangu Kaha clothing, and embracing each other. There is an issue which we cannot resolve as to whether the photo concerned did show Ms P2 so attired.

[4]    In addition to the evidence of what was discovered during the search, the Crown wishes to call evidence at the trial from a police officer that Mr P1 is a member of Black Power and Mangu Kaha which gang or gangs are known to be involved in cannabis dealing at tinnie houses in Christchurch. The officer will say, if permitted, that it is common practice in Christchurch to use separate “safe houses” to hold supplies of cannabis, where the packaging of tinnies for sale is undertaken.

[5]    The Crown also wishes the police officer to give evidence of a police surveillance operation between May and July 2002 of two houses at 11A Carnarvon Street and 42 Lyttelton Street, Christchurch which were tinnie houses. His evidence will be that the two houses were occupied by Black Power or Mangu Kaha gang members at the time including, in the case of the Carnarvon Street property, the appellant Mr P1’ brother. The brother and the gang member occupying the Lyttelton Street property were both arrested and charged with dealing in cannabis at the conclusion of the police operation. The officer will also say that, during the period of surveillance, a vehicle owned by Mr P1 was observed on six occasions to be at the Carnarvon Street property. The visits were generally brief and on one occasion, when the car was seen to go in but reverse straight out of the property, Mr P1 was identified driving his car.

[6]    The Crown case is that the property at Woodend was used as a safe house for the packaging and storing of cannabis which was being supplied by the appellants to the tinnie houses operated by the patched gang members.

[7]    The appellants applied to the District Court, under s344A of the Crimes Act 1962, for an order ruling inadmissible the evidence concerning the involvement of the two gangs in Christchurch tinnie house operations, of the discovery during the search of the patch and the photograph of the appellants in gang clothing and finally the evidence of the surveillance of the two tinnie house premises. Judge P A Moran dismissed the application. He held:

[12]     Broadly speaking, it is submitted that the evidence is inadmissible inasmuch as any probative value is so slight and its illegitimate prejudicial effect so great that the evidence should be excluded.

[13]    I disagree. It is the Crown’s case that the cannabis foils found at 134 Main North Road were part of a drug dealing operation; that the foils were stored at that safe house for distribution to “tinnie houses”; that the accused distributed “tinnies” to those “tinnie houses”; that this operation is typical of that conducted by Black Power and Mangu Kaha gang members and that this was just such an operation involving a senior gang member in supplying the “tinnie houses”.

[14]       The evidence of Detective Sergeant Fitzgerald and five police personnel is highly probative of the Crown case. The concomitant prejudice to the accused’s cause is legitimate. The evidence is admissible.

[15]   Not only is it admissible, it is admissible against both accused. There is no case for severance.

[8]    By way of a rider the Judge added that the accused Ms P2 was a minor player unlikely to be able to exercise any control over the activities of Mr P1. He invited the Crown to consider not proceeding against her. We were told that the Crown Solicitor has decided to proceed with the charge against both appellants.

[9]    The issue raised by the appeal concerns the prejudicial effect of the general evidence of involvement of the Black Power and Mangu Kaha gangs in tinnie house cannabis dealing in Christchurch, and the surveillance evidence so far as it relates to the operations of the two particular tinnie houses by the members of those gangs occupying them. When considered alongside evidence of what was found at the place where the appellants lived, linking the occupiers with the gangs (in particular

the patch and the photograph), there is a clear risk that a jury would regard the evidence of the tinnie house operations of the gangs as proving the involvement of the appellants in them. The true relevance and probative force of the evidence that the appellants seek to have excluded is no more than to explain the significance of the evidence concerning the presence of and packaging of drugs at the premises where the appellants resided.

[10]   It is of course fundamental that a trial court has a discretion to exclude otherwise admissible evidence on the ground that its prejudicial effect outweighs its probative value. As Roskill J said in R v List [1966] 1 WLR 9, at p12:

A trial judge always has an overriding duty in every case to secure a fair trial, and if in any particular case he comes to the conclusion that even though certain evidence is strictly admissible, yet its prejudicial effect once admitted is such as to make it virtually impossible for a dispassionate view of the crucial facts of the case to be thereafter taken by the jury, then the trial judge, in my judgment, should exclude that evidence.

This principle has been applied in New Zealand in a wide variety of contexts.

[11]   In the case of the appellant Mr P1 there is additional admissible evidence of the sighting of his vehicle during visits to the premises concerned on six occasions, during one of which he was identified as the driver. This evidence links him to the premises where gang members were conducting drug dealing. In the case of Ms P2 there is no such direct linking evidence, other than that she was a prior occupier of one of the properties, as Mr P1 may have been (although that was disputed by counsel). We do not, however, see this evidence of prior occupation as being significant. There is also evidence that Mr P1’ brother was the occupier  of the tinnie house at Carnarvon Street, which conceivably might be treated as providing an innocent explanation for visits of his car to that property. We have taken that possibility into account.

[12]   The evidence available to the Crown is of three kinds. First, there is the evidence, derived from the search, of the presence of and packaging of illicit drugs on the property at which the appellants both reside. Secondly, there is evidence, derived from the same search, of the appellants’ association with the Black Power and Mangu Kaha gangs. Thirdly there is evidence of the drug dealing practices of

the gangs concerned in Christchurch which is of a general and a specific kind. It is the evidence in the second and third categories that is the subject of the application to exclude.

[13]   We agree with the Judge that the evidence in each category is relevant to the offending alleged against both appellants. Evidence of their association with the gangs, and the illicit contemporary activity of the gangs in selling cannabis at tinnie houses, may reasonably be considered by a jury to throw light on the significance of the discovery of drug related material found at the place where the appellants reside. The evidence in other words has probative value. It also appears to be from a properly qualified witness, to the extent that it has the character of expert evidence, and we must approach the appeal on the initial basis that the evidence which the appellants wish to have excluded is of an admissible kind.

[14]   On the other hand, the evidence in the second and third categories is also highly prejudicial. The level of community feeling concerning gang behaviour is such that there is certainly a risk that a jury will decide that evidence of the appellants’ links to the two gangs, coupled with the gangs’ drug dealing practices, would be sufficient, without more, to prove that the appellants had cannabis at the place at which they resided for the purposes of supply. The true, confined relevance of the evidence concerning gang behaviour in particular might well be lost sight of by the jury in those circumstances. In that event there would be serious prejudice to the appellants.

[15]   The decision on whether the evidence is to be excluded in those circumstances must be made according to whether its prejudicial effect outweighs the probative value of the evidence. We do not see that approach in the Judge’s decision and accordingly must  decide the question for ourselves.   In the case of   Mr P1 we have to factor into the balancing exercise the further evidence of the sighting of a vehicle he owned making four visits to the Carnarvon Street property between 28 May and 12 June 2002 and two visits to the Lyttelton Street property on 5 June 2002. In one of the visits to Carnarvon Street he was identified as the driver. Even having regard to Ms Sewell’s submission on his behalf concerning the briefness of some of these visits, and the fact that Mr P1’ brother was the

occupier of the Carnarvon Street property, we conclude that this evidence carries weight as it might reasonably be seen by a jury as linking the evidence of cannabis packaging and related material discovered at Mr P1’ place of residence to what was taking place at tinnie houses operated by members of gangs with which he was associated. The presence of this evidence distinguishes the facts of Mr P1’ situation from those considered by this Court in R v Iese CA96/02, 29 August 2002, para [31], which was relied on by Ms Sewell. We also consider that the prejudicial effect can be diminished to some extent by a strong direction from the trial Judge as to its limited relevance. Having regard to all these factors, in his case we conclude that the probative force derived from the evidence of all three kinds which prima facie is admissible against him outweighs the prejudicial effect of that in the third category.

[16]   The position of Ms P2 is more difficult. It can be argued that, whether or not as Mr Glover contends the evidence shows no personal link between the two appellants other than that Mr P1 is a boarder at the house she had rented, it will be open to a jury to conclude that she had access to the vehicle which visited the tinnie houses, and that in any event whatever was going on at  her  home  she  and Mr P1 were acting together in what was being done. Nevertheless the important fact remains that the evidence does not directly link her with the places where gang members were selling cannabis to the public, as it does Mr P1. There is consequentially significantly less probative weight in the overall evidence against her on the charge. In Ms P2’s case we have concluded that the degree of prejudice outweighs the probative force of the evidence against her in the second and third categories discussed in paragraph [11], and that this evidence should not be admitted against her. We note that, assuming that the  Crown  decides  to  proceed  against  Mr P1 and will call the evidence of gang associates and visits to the tinnie houses, severance of any trial of the charge against Ms P2 seems unavoidable.

[17]   For these reasons the appeal of Mr P1 is dismissed.   The appeal of     Ms P2 is allowed and the evidence the subject of the application is not to be admitted against her.

Solicitors:
Crown Law Office, Wellington