R v Phillips; R v Dixon HC Rot CRI 2007-070-001765
[2008] NZHC 2215
•28 February 2008
ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.
IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
CRI 2007-070-001765
THE QUEEN
v
LEVI BENJAMIN PHILLIPS
CRI 2007-070-003552
THE QUEEN
v
KANE LANCE DIXON
Hearing: 11, 12 February 2008
Appearances: J O'Brien for Crown (Tauranga)
P Mabey QC for Accused Phillips
M Dixon for Accused Dixon
Judgment: 29 February 2008 at 2:00PM
(RESERVED) JUDGMENT OF ANDREWS J
This judgment was delivered by me on 29 February 2008 at 2:00pm
pursuant to r 540(4) of the High Court Rules.
………………………………………..
Registrar/Deputy Registrar
Date: ………………………………
Solicitors: Ronayne Hollister-Jones Lellman, PO Box 13063, Tauranga
Counsel: PG Mabey QC, PO Box 13199, Tauranga
MG Dixon, PO 13110, Tauranga
R V PHILLIPS & ANOR HC ROT CRI 2007-070-001765 29 February 2008
Introduction
[1] On 14 March 2007, the Tauranga police executed a search warrant at 33
Birch Avenue, Tauranga, the headquarters of the Tauranga Filthy Few Motor Cycle
Club (the “FFMC”)(“the property”).
[2] The accused, Phillips, occupied a room (designated by the police as “room
8”) on the first floor of the property. A small bag was found in the room, which is alleged to have contained a zip-lock plastic bag containing 22.4 grams of cannabis, 7 small zip-lock plastic bags alleged to contain (in total) 4.9 grams of methamphetamine, a set of electronic scales, and $180 in cash.
[3] Mr Phillips confirmed in a Police interview that he had been a “patched”
member of the FFMC for four years and the vice-president of the Tauranga FFMC
for three years. He is also a director of the company that owns the FFMC property, and the holder of 400 of the 1000 shares in the company.
[4] Mr Phillips has been charged under s 6(1)(c) of the Misuse of Drugs Act
1975 with possession of a class A controlled drug (methamphetamine) for supply
(Count 1) and possession of a class C controlled drug (cannabis) for sale (Count 2).
He has also been charged under s 98A of the Crimes Act 1961 with participation in
an organised criminal group, namely the FFMC, knowing that it was an organised criminal group and knowing or reckless as to whether his participation contributed to the occurrence of criminal activity (Count 3).
[5] The accused, Dixon, also occupied a room in the first floor of the property. That room was designated by the police as “room 9”. In a drawer in that room the police found 19 LSD tabs wrapped in a piece of white paper. This piece of paper had writing on it, alleged to be “15 there so 54 at $28 CATCH UP FRI NITES” (designated by the police as “item 22”). $240 in cash was also found. Mr Dixon has been charged under the Misuse of Drugs Act with possession of a class A controlled drug (LSD) for supply (Count 1), and with participation in an organised criminal group in the same terms as Mr Phillips (Count 2).
[6] Four other people were arrested following the execution of the search warrant
at the property. According to evidence proposed to be given for the Crown, one has been charged with possession of a class A controlled drug (methamphetamine) for supply, one with possession of a class A controlled drug (methampetamine), one with possession of a class C controlled drug (cannabis), and one with unlawful possession of ammunition.
[7] Mr Phillips and Mr Dixon have been committed for trial in this Court. The trials were to have been held in the week beginning 11 February 2008, but were adjourned to enable pre-trial issues to be heard and determined.
[8] Those pre-trial issues are:
a) A challenge to the admissibility of evidence intended to be given by Detective Sergeant Garrett, Detective Kingsbury, and Constables Harris and Clark, leading to an application by the Crown under s
344A of the Crimes Act, to determine the admissibility of that evidence;
b)An application by Mr Phillips for discharge on Count 3 under s 347 of the Crimes Act; and (in the alternative)
c) An application for severance of Count 3.
[9] All three matters focused on the evidence of Detective Sergeant Garrett, which is directed at Count 3, that of “knowing participation in an organised criminal group”. Mr Garrett is put forward as an expert with knowledge of the operation of motor cycle gangs in New Zealand and in particular the unlawful activities of motor cycle gangs. He gave evidence on a voir dire basis. His evidence (as set out in his brief of evidence and as given on voir dire) is referred to in detail later in this judgment. In general terms, Mr Garrett’s evidence addresses the question whether the FFMC is an “organised criminal group”.
[10] Mr Mabey also challenged the admissibility of a portion of the brief of evidence of Detective Kingsbury, where he stated that:
Organised Crime Groups control the manufacture, sale and distribution of
Methamphetamine.
The main reasons for this are as follows:
· The profits made help finance their other activities / lifestyles.
· They already had the distribution networks in place for other illicit drugs such as cannabis.
· They had the ability to finance the original clandestine laboratories.
· They have the perceived muscle to stand over and intimidate those that don’t pay their debts or those who they perceive as being competition
in their manufacturing and distribution activities.
[11] Mr Mabey challenged the admissibility of evidence to be given by Constable Clark (officer in charge of the scene in the execution of the search warrant at the property), where he gives a detailed description of the property (including describing video surveillance and Police radio monitoring equipment) and lists six persons (including Mr Phillips and Mr Dixon) arrested at the property and the offences with which they are charged. He also lists three other persons, who he says were present but not arrested.
[12] Constable Harris was officer in charge of exhibits in the execution of the search warrant. Mr Mabey challenged the portions of his brief of evidence where he refers to first, “item 22”, found in “room 9” and second, four steel boxes located in “room 24” (a storage/”patch” room on the ground floor of the property). The boxes were connected together but individually padlocked. One box was empty; one contained $6.80, one $430, and one $430.50.
[13] By agreement, after Mr Garrett gave evidence and was cross examined and
re-examined, the hearing proceeded with Mr Mabey presenting submissions on behalf of Mr Phillips, then Ms O’Brien on behalf of the Crown. Mr Dixon, on behalf
of the accused Mr Dixon, advised the Court that he supported Mr Mabey’s applications and submissions. It is understood that the Court’s decision in respect of Mr Phillips will also apply to Mr Dixon.
Section 98A - Participation in an organised criminal group
[14] The offence of “knowing participation in an organised crime group” is set out
in s 98A of the Crimes Act. As relevant, s 98A provides:
98A Participation in organised criminal group
(1) Every one is liable to imprisonment for a term not exceeding 5 years who participates (whether as a member or an associate member or prospective member) in an organised criminal group, knowing that it is an organised criminal group, and—
(a) knowing that his or her participation contributes to the occurrence of criminal activity; or
(b) reckless as to whether his or her participation may contribute to the occurrence of criminal activity.
(2) For the purposes of this Act, a group is an organised criminal group if
it is a group of 3 or more people who have as their objective or one of their objectives—
(a) obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more; or
…
(c) the commission of serious violent offences (within the meaning of section 312A(1)) that are punishable by imprisonment for a term of 10 years
or more; or
…
(3) A group of people is capable of being an organised criminal group for the purposes of this Act whether or not—
(a) some of them are subordinates or employees of others; or
(b) only some of the people involved in it at a particular time are involved
in the planning, arrangement, or execution at that time of any particular action, activity, or transaction; or
(c) its membership changes from time to time.
(Subsections 2(b) and (d) relate to conduct outside New Zealand.)
[15] In order for Mr Phillips to be convicted on Count 3, the jury would therefore have to be satisfied beyond reasonable doubt that:
a) Mr Phillips is a member of a “group”. It is alleged that the “group” in question is the FFMC.
b)The FFMC is an “organised criminal group”, in that it is a group of three or more people who have as their objective, or one of their objectives:
i)Obtaining material benefit from the commission of offences punishable by imprisonment for four years or more whether in or outside New Zealand; or
ii)The commission of serious violent offences punishable by imprisonment for 10 years or more, whether in or out of New Zealand;
c) At least three persons in the group share one of the common objectives set out in (b) above;
d) Mr Phillips knew that the FFMC is an “organised criminal group”;
and
e) Mr Phillips knew that his participation contributed to the occurrence
of criminal activity, or was reckless as to whether his participation might contribute to the occurrence of criminal activity.
[16] This follows the analysis of s 98A set out in the judgment of Potter J in
R v Cara[1] at [160], together with her observation at [163], that it is “quite clear that
at least three members of the group must share the common objectives” before there can be liability for participation in an “organised criminal group”.
The evidence of Detective Sergeant Garrett
[1] R v Cara (2004) 21 CRNZ 283
[17] Mr Garrett joined the New Zealand Police in June 1993. From June 2005 to June 2007, he was a Detective in the Auckland Motor Cycle Gang Unit and since June 2007, he has been Detective Sergeant in charge of the Auckland Metro Motor Cycle Gang Investigation Unit. The Unit holds the motor cycle gang intelligence portfolio for the Waitakere, North Shore, Auckland and Counties-Manukau Police Districts. His duties include the collation and dissemination of information in respect of gang activity.
[18] In his brief of evidence, Mr Garrett says that this by necessity involves an in- depth knowledge of criminal and gang behaviour especially with regard to offences relating to the supply, manufacture, distribution and sale of controlled drugs. Mr Garrett says that as a core part of his work since 2000, he has received information relating to gang and drugs offending from various sources, including police members, witnesses and informers, and has regularly spoken with gang members, drug users and their associates.
[19] Mr Garrett referred to what he called “outlaw motor cycle gangs” or “OMCGs” which he said is a term used by the police to describe motor cycle gangs and clubs who are “criminally based”, rather than social clubs. He referred to an emblem in the shape of a diamond with “1% ER” inside it. He said this emblem had been adopted following a press statement made by the president of the American Motorcycle Association in 1947, to the effect that 99% of motor cyclists were law- abiding citizens. He said that a number of motor cycle clubs had adopted the “1%ER” emblem as depicting that they operated outside the laws of whatever country they were in.
[20] Mr Garrett then described what he said is the typical organisational structure
of an “OMCG”, the process of obtaining membership, the “colours” or “patch” of an “OMCG” (which, he says, serve to identify and unify the gang and intimidate others), and the design and fortification of an “OMCG’s” headquarters.
[21] In his brief of evidence, Mr Garrett went on to say of “outlaw motor cycle gangs” in general:
All of the OMCG’s have adopted the 1% badge as a symbol of their outlaw status.
As there is neither page nor paragraph numbering in Mr Garrett’s brief, I will refer to this statement as “statement A”.
[22] Mr Garrett later said:
An OMCG typically work[s] as [an] umbrella organisation for its members. There will be specific criminal enterprises that will be organised by the club but the majority of criminal activity will be carried out by individual patch members and their entourage using the club colours as protection from witnesses contacting police [or] giving evidence. The members use the protection (fear) of the patch or colours to conduct criminal activity with impunity knowing the outsiders fear of the gang will prevent them telling the police about their activity. A percentage of any ‘earn’ from these criminal activities will be paid to the club itself through the treasurer.
(Statement B)
In many, if not all, drug squad operations conducted by the New Zealand Police in the upper North Island, members and associates of OMCGs are heavily involved in the sale and supply of controlled drugs.
(Statement C)
[23] Mr Garrett referred specifically to the FFMC. He said:
There are a large number of motor clubs in New Zealand that are attributed OMCG status. These include the Hells Angels M.C, Head Hunters M.C., and the Filthy Few M.C.
(Statement D)
‘FFFF’, ‘Filthy Forever Forever Filthy’ a slogan that purports once a member a member forever. This is typical of OMCGs as in the Hells Angels AFFA (Angels Forever Forever Angels) and HFFH (Head Hunters Forever Forever Head Hunters).
(Statement E)
As is typical with most motor cycle gangs, the Filthy Few culture includes fortified addresses which serve as headquarters for gang activity.
(Statement F)
Of the 33 members of the Filthy Few M.C. currently known to the motor cycle gang unit, excluding the two defendants in Court today, have amassed 520 total convictions between them. 103 of those convictions (19.8%) were drug related.
(Statement G)
The Filthy Few M.C is closely associated with the Head Hunter and Hells Angels motor cycle gangs. These three gangs are often seen at each other’s important gatherings, national runs, bike shows and the like.
(Statement H)
Information to date suggests there is a close link between these motor cycle gangs and the manufacture and distribution of methamphetamine.
(Statement I)
The national statistics for the number of clandestine methamphetamine laboratories (clan labs) dealt with by police from June 2006 to July 2007 show a significant link between OMCGs and the production of methamphetamine.
Mr Garrett then listed eight “OMCGs”, of which the sixth was as follows:
Filthy Few (20).
(Statement J)
I have read the job sheets of the officer in charge of the scene in this matter,
in conjunction with the scene photographs. The fortifications described by
Detective Clark and those depicted are typical of an OMCG gang headquarters or ‘pad’.
(Statement K)
The finding of illicit drug and drug sale paraphernalia on the occasion in Tauranga in March 2007 of police search of 33 Birch Avenue is consistent with an ongoing current involvement by the Filthy Few gang and its members at that address in the drug trade as I have describe[d] the pattern of such gangs.
(Statement L)
Given the overall propensity of motor cycle gangs to be involved in the drug trade, and the perceived time delay in gaining access to their fortified gang headquarters, it is not uncommon to locate illicit drugs within the confines of
a gang ‘pad’.
(Statement M)
Expert evidence
[24] Mr Garrett’s evidence is notable for being expressed in the form of statements of fact. To the extent that he gives evidence of fact, the admissibility of that evidence is governed by ordinary principles.[2] Mr Garrett acknowledged that he had no personal knowledge of the FFMC, apart from having spoken to two members in 2006 (not in relation to criminal offending), the property, Mr Phillips, or Mr Dixon. I accept Mr Mabey’s submission that Mr Garrett cannot give direct factual evidence in relation to any of the charges against either accused.
[2] See ANZ National Bank Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,587 at [15]
[25] On the basis that Mr Garrett’s evidence is the expression of his opinion, it will be admissible if it is “expert evidence” and satisfies the “substantial help” requirement of s 25 of the Evidence Act 2006, which provides as follows:
25 Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
(2) An opinion by an expert is not inadmissible simply because it is about—
(a) an ultimate issue to be determined in a proceeding; or
(b) a matter of common knowledge.
…
[26] Before admitting expert evidence, the Court must be satisfied not only as to the expert’s qualification, but also as to the reliability of the expert’s evidence. As the Court of Appeal said in R v Makoare[3] at [24]:
[3] R v Makoare [2001] 1 NZLR 318
Furthermore, the expert’s testimony will not be permitted unless he or she is able to point to admissible evidence which sufficiently connects the opinion expressed as to human behaviour generally or relating to a group within society, with the behaviour of the individual whose conduct or thought process is in issue. … Before a Court can assess the value of an opinion it must know the facts upon which it is based. If no such basis is given, or, if
given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless. …
[27] In its judgment in R v Carter[4], the Court of Appeal cited at [64] the judgment
[4] R v Carter CA 155/05, 19 December 2005
of Tipping J in R v Calder[5] at 7-8 as to the proper approach to “novel” expert evidence (but equally applicable, in my view, to expert evidence generally):
[5] R v Calder HC CHCH T154/94, 12 April 1995
Before expert evidence, such as that in issue in this case, can be put before the jury by a suitably qualified person it must be shown to be both relevant and helpful. To be relevant the evidence must logically tend to show that a fact in issue is more or less likely. To be helpful the evidence must pass a threshold test which can conveniently be called the minimum threshold of reliability. This means the proponent of the evidence must show that it has a sufficient claim to reliability to be admitted. If this threshold is crossed the weight of the evidence and its probative force can be tested by cross- examination and counter evidence and is ultimately a matter for the jury.
If the minimum threshold of reliability is not crossed, the evidence is deemed unhelpful and excluded. …
[28] If the expert gives opinion evidence, the facts on which that opinion is based must be sufficiently established by admissible evidence, and be stated by the witness.[6] In some instances an expert can rely on hearsay evidence in forming the opinion.
[6] See Bevan Investments Ltd v Blackhall & Struthers (No. 2) [1978] 2 NZLR 97 (CA)
[29] For example, in R v Rongonui[7] the expert psychiatric and psychological evidence intended to be given for the appellant was in part based on hearsay evidence of what the appellant had said. At [48]-[49] Elias CJ observed that if the evidence was largely non-contentious, and the surrounding circumstances made it probable that it was true, it might be unduly technical to exclude it. Rather, it should be admitted subject to a warning as to weight. On matters that were in contention, the Chief Justice observed at [53] that in the absence of other evidence that made it “highly probable” that the reported statements were true, there needed to be a proper evidential foundation of direct evidence. The other members of the Court of Appeal concurred with those observations.
[7] R v Rongonui [2000] 2 NZLR 385 (CA)
[30] It is also to be noted that while s 25(2) of the Evidence Act does not make evidence as to the “ultimate issue” (that is, one that is to be determined by the jury) inadmissible on those grounds alone, it does not make such evidence admissible. Admissibility must still be determined.
[31] The discussion and rulings in relation to expert evidence given by police officers in the following two cases, both involving charges under s 98A, are of assistance when considering the present challenges.
[32] In Simpson v R[8] Paterson J considered the evidence intended to be given by
[8] Simpson v R HC GIS T032566, 13 May 2004
the Police District Gang Intelligence Officer for the Gisborne Criminal Investigation
Branch. The Judge accepted that the officer appeared to have the necessary expertise
to give expert evidence on gangs’ activities.
[33] The officer’s evidence related to the Mongrel Mob. He covered its organisation into chapters and cells of chapters, and the organisational structure of each chapter. The officer’s evidence included the following:
33. The Mongrel Mob are actively involved in offending such as burglary, theft, receiving stolen property, cultivation of cannabis, dealing and selling cannabis and other drugs, as well as violence offences such as assault, robbery, extortion, and firearms offences.
34. The objectives of the Mongrel Mob include the commission of these offences.
[34] The Detective then referred to Mr Simpson’s status in the Gisborne Mongrel Mob, and to seven other persons, patched members, who had been convicted on various offences. Evidence of the convictions was to be presented.
[35] The Judge held at [20] that at paragraphs 33 and 34 of his brief of evidence, the officer was in effect giving an opinion on the “ultimate issue” on one of the essential elements of the s 98A charge. Further, at [23] the Judge held that it was inadmissible for being opinion evidence unsupported by facts established by admissible evidence.
[36] In his oral ruling in R v Tihi[9] Heath J considered the evidence intended to be given by two police officers in relation to a s 98A charge.
[9] R v Tihi (Oral Ruling No. 2) HC Tauranga CRI 2003-047-00415, 14 June 2004
[37] The evidence of the first officer was directed at gang activity in New Zealand
in general, and that of the Mongrel Mob and Black Power in particular. The evidence covered the organisational structure of gangs, the relevance of gang “patches” and “colours”, gang insignia and terminology.
[38] The Judge ruled that the officer’s statement that “gangs consist of close knit groups of individuals who are often reputed criminals in their own right” required the removal of the words “who are often reputed criminals in their own right”.
[39] The evidence of the second officer focused on the history of conflict in the area, between the Mongrel Mob and Black Power. He referred at some length to violent incidents said to have occurred between the two gangs, including a fatal stabbing some two years earlier in which charges of murder had been brought against the accused and four others. The accused had been found not guilty.
[40] The Judge held that the detailed evidence of what had occurred was inadmissible, because of the risk of finding the accused guilty by association. The prejudicial effect of evidence of past incidents outweighed any probative value that evidence may have had in relation to proof of the accused’s intent in relation to the particular incidents that led to the s 98A charge.
The challenge to Detective Sergeant Garrett’s evidence
[41] As noted earlier, Detective Sergeant Garrett’s evidence is directed at element
(b) as set out at [15], above: at proving that the FFMC is an “organised criminal group”.
[42] Mr Mabey submitted that much of Mr Garrett’s evidence is inadmissible: to the extent that he purports to give expert evidence, it is inadmissible under s 25 of
the Evidence Act in that it does not satisfy the “substantially helpful” test. He
submitted that Mr Garrett’s evidence was unreliable, vague, and based on hearsay. Further, he submitted that Mr Garrett’s evidence amounted to inadmissible “ultimate issue” evidence.
[43] Mr Mabey submitted that while Mr Garrett may be able to give evidence as
to structure, organisation and activities of motor cycle gangs in general, he was unable to give any admissible evidence that linked the Tauranga FFMC, in particular, to those general comments.
[44] The unreliability, vagueness and hearsay was demonstrated, Mr Mabey submitted, in Mr Garrett’s cross-examination on voir dire. In so doing, Mr Garrett confirmed that he had never been to the FFMC property in Tauranga, and had never been involved as a police officer in enquiries in relation to its members. He had spoken to two members, only, but not in relation to any criminal activity.
[45] Mr Mabey referred in particular to the following:
a) When asked what evidence he had that the FFMC in particular was involved in organising criminal enterprises (referring to statement B), Mr Garrett responded:
I’m talking about OMCGs, how OMCGs work, of which the
FFMC is one.
Mr Garrett later said he had been told by other gang members (not members of the FFMC) of “business dealings”. He would not give further details.
b) In relation to statement C, Mr Garrett was asked what evidence he had
to include the FFMC in his assertion that in many, if not all, drug squad operations in the upper North Island, members and associates of outlaw motor cycle gangs are heavily involved in the sale and supply of methamphetamine. Mr Garrett referred to a search warrant executed at a house in Auckland, which he believed to have been
occupied by a partner of a member of the FFMC. He said drugs and a firearm were found there. He could not give any further details.
c) When asked questions in relation to his assertion that 33 members of the FFMC had 520 convictions between them (statement G), Mr Garrett could not give any details of those convictions, nor say how many related to Tauranga members, nor how many convictions there were per individual member.
d)As to statement I, that information suggested a close link between the FFMC (as one of three gangs) and the manufacture and distribution of methamphetamine, Mr Garrett referred again to the search warrant executed in Auckland. Again, he gave no further details.
e) When asked questions as to his assertion that national statistics for clandestine methamphetamine laboratories showed a significant link between the FFMC and the production of methamphetamine (with the figure 20 being given) (statement J), Mr Garrett confirmed that no “clan labs” had been located on FFMC premises, and that the number did not relate to convictions for manufacture of methamphetamine. He could not say whether the “link” referred to members of the FFMC being present or directly involved with the clan lab, or if any FFMC member had ever been charged.
f) Finally, in relation to his assertion that what was found at 33 Birch Avenue was consistent with an ongoing involvement by the FFMC and its members in the drug trade (statement L), Mr Garrett said he had “direct information” as to such involvement, but would not provide any details.
[46] Ms O’Brien submitted that Mr Garrett was properly put forward as an expert
on motor cycle gangs in New Zealand and internationally, and that his expertise and experience enable him to give expert evidence in relation to “outlaw motor cycle gangs”. I accept, for the purposes of this pre-trial hearing, that Mr Garrett is an
expert in relation to motor cycle gangs in general in that (in terms of s 4 of the Evidence Act) he has specialised knowledge of motor cycle gangs based on his training, study or experience.
[47] Ms O’Brien conceded that the phrase “the overall propensity of motor cycle gangs to be involved in the drug trade, and” should be removed from statement M. She also conceded that statement L (as to items found at the property being consistent with “ongoing current involvement by the Filthy Few gang and its members”) might arguably be objectionable, but submitted that the statement was admissible because it was careful and limited, ringfenced to the search of the FFMC premises, and to the members at the address on the search date.
[48] Ms O’Brien submitted that Mr Garrett’s “statistical” evidence (statements G
– J) crossed the threshold of reliability for admission. She submitted that the proper course would be for the evidence to be admitted, to be left for the jury to decide what weight should be put on it, in the light of any cross examination and directions given by the trial Judge.
[49] Further, Ms O’Brien submitted that “police expert gang evidence” such as that intended to be given by Mr Garrett had been admitted in other cases where there was a charge under s 98A, as well as in relation to other offences, to explain gang- related matters to a jury. However, Simpson[10] and Tihi[11] were the only two cases before the Court where the admissibility of expert police evidence was the subject of a ruling.
[10] See fn 8
[11] See fn 9
Conclusion as to Detective Sergeant Garrett’s evidence
[50] Although directed at proving that the FFMC is an “organised criminal group”, it is to be noted that that term does not appear in Mr Garrett’s brief of evidence – he refers only to “outlaw motor cycle gangs”. I accept Mr Mabey’s submission that Mr Garrett’s evidence is essentially that the FFMC is an “outlaw
motor cycle gang”, and that the jury will be invited to infer that an “outlaw motor
cycle gang” is an “organised criminal group”. Were that not the case, then Mr Garrett’s evidence would be largely irrelevant as not being directed at any element of the charges.
[51] I have concluded that in relation to statements A, B, and E Mr Garrett does not point to sufficient (or any) admissible evidence to connect his general statements
to the FFMC, in particular, as is required by Makaore.[12] Accordingly, those
[12] See fn 3
statements are inadmissible.
[52] Statements A, C, F, G, H, J and I are statements of opinion (albeit expressed
as statements of fact) for which Mr Garrett gives no, or insufficient, factual foundation. Each statement is challenged by the defence. However, in the absence
of any evidence of the facts on which the statements of opinion are based, the statements cannot be tested.[13]
[13] See Calder, fn 5
[53] To the extent that the statements are based on hearsay evidence (as are, for example, statements F, G and I), I have concluded that it is unreliable hearsay, in accordance with the Chief Justice’s observations in Rongonui.[14]Given the significance of the evidence, the disputes raised, and the absence of any other evidence which could be said to make it “highly probable” that Mr Garret’s statements are true, this is not one of those instances where the opinion evidence
[14] See fn 7
should be admitted, subject to a direction to the jury as to weight. Direct evidence of the facts on which Mr Garrett’s opinion is based is necessary. In their current form, statements A, C, F, G, I, and J are inadmissible.
[54] Statements D and L are both, in my judgment, “ultimate issue” statements. Statement D is as follows:
There are a large number of motor clubs in New Zealand that are attributed OMCG status. These include the Hells Angels M.C, Head Hunters M.C, and the Filthy Few M.C.
[55] In statement D Mr Garrett says that the FFMC has been “attributed OMCG status”. It is clear that what Mr Garrett is saying that the Police have made that “attribution”. The fact that the Police have done so does not, of course, make the FFMC an “outlaw motor cycle gang”. It is simply a label given by the Police. However, the statement is without qualification, and could be taken by a jury as establishing, as a fact, that the FFMC is an “outlaw motor cycle gang”. On that basis there is a risk that the jury would then infer that the FFMC is, therefore, an “organised criminal group” – an essential element of the s 98A charge. As Paterson J said in Simpson[15] at [20]:
[15] See fn 8
… While there may now be no absolute rile precluding an expert witness from expressing a view on the ultimate issue, courts are reluctant to allow experts to usurp the functions of a jury. …
[56] As presently expressed, statement D usurps the function of the jury, and is inadmissible.
[57] Statement L is:
The finding of illicit drugs and drug sale paraphernalia on the occasion in Tauranga in March 2007 of police search of 33 Birch Avenue is consistent with an ongoing current involvement by the Filthy Few gang and its members at that address in the drug trade as I have describe the pattern of such gangs
[58] Statement L must be subject to the same criticism. On the s 98A charge the jury will be invited to infer that the FFMC is an “organised criminal group” which has as one of its objectives obtaining material benefits from “the manufacture and distribution of unlawful drugs …”[16]. Accordingly, one issue for the jury will be whether it is satisfied that the FFMC does have that objective. On such a crucial issue, the jury’s consideration of that issue should be unfettered by Mr Garrett’s statement. It is not made any less of an “ultimate issue” statement by his use of the phrase “is consistent with”. In its present form, it is inadmissible.
[16] As noted in Particulars provided by counsel for the Crown to counsel for Mr Phillips, 5 February
2008
[59] I have concluded that statement K (as to the FFMC headquarters) and M (in relation to finding illicit drugs in a “gang pad”) are admissible. In the case of
statement M, that conclusion rests on the deletion from it of the phrase “the overall propensity of motor cycle gangs to be involved in the drug trade”. As recorded earlier, Ms O’Brien agreed to that deletion.
[60] Absent the statements that have been ruled inadmissible, Mr Garrett’s evidence presents as a general background to motor cycle gangs in general (and “outlaw motor cycle gangs” in particular) of a type that was held to be admissible in Simpson and Tihi, and is admissible in this case.
Detective Kingsbury’s evidence
[61] For the most part, Mr Kingsbury’s evidence comprises expert evidence as to production, dealing and consumption of methamphetamine and cannabis. It is typical of police evidence given in cases where possession for supply is charged. The only challenge to Mr Kingsbury’s evidence is in respect of the passage quoted at
[10], above, where he says that “Organised Crime Groups control the manufacture, sale and distribution of Methamphetamine” then sets out four reasons why this is so.
[62] No evidential basis is given by Mr Kingsbury, and there is no other evidence given by Crown witnesses that would support it. Further, it is “ultimate issue” evidence in relation to the s 98A charge, as to the “objective” of the “organised criminal group”. The statement is inadmissible.
Constable Clark’s evidence
[63] It will be recalled that Constable Clark was officer in charge of the scene in the execution of the search warrant at the FFMC property.
[64] Mr Mabey first challenged Mr Clark’s detailed description of the premises as being irrelevant to the any of the charges against Mr Phillips. I do not accept that submission. Mr Phillips is charged with possession for supply. Evidence as to video surveillance of the entry to a property, and monitoring of police radio communications is frequently given in respect of such charges, in support of the
“intention to supply”. Nor do I find there to be anything objectionable in Mr Clark’s description of the physical layout of the premises.
[65] Of more substance was Mr Mabey’s challenge to Mr Clark’s evidence as to who was located at the property, and the offences with which various of those people have been charged. Clearly such evidence is not relevant to Counts 1 and 2 against Mr Phillips, but Mr Mabey submitted that it also had no relevance to Count 3, the s 98A charge.
[66] The basis of Mr Mabey’s challenge was that the naming of people and the offences with which they are charged is not relevant, in that it does not and cannot prove a common purpose. Further, he noted that only two of the people located at the property (Mr Phillips and Mr Dixon) had been charged under s 98A. He noted that this was despite one of the people located at the property being charged with possession of a class A controlled drug for supply, which (being punishable by imprisonment for four years or more) is a “qualifying” offence under s 98A(2)(a) in determining whether a group is an “organised criminal group”. Finally, he submitted that even if the other individuals were convicted on the charges, that would not prove anything against another individual, and would not provide a basis for an inference that the FFMC is an “organised criminal group”.
[67] Ms O’Brien submitted that the evidence is admissible. She submitted that a finding as to the objectives of a group can only be by inference, and the behaviour of members of the group must be one of the bases for the inference. On that basis, evidence as to who was at the property, and what they have been charged with, is relevant.
[68] Counsel referred in submissions to the judgment of Panckhurst J in R v Ryan and Others[17] in which the Judge considered (along with other pre-trial issues) challenges to s 98A charges laid against 17 of the 26 accused on grounds including one under s 347 of the Crimes Act, that there was insufficient evidence to support the charge.
[17] R v Ryan and Others HC CHCH CRI-2004-009-003256, 3 August 2004
[69] In that case, Panckhurst J noted that it was alleged that the “group” (the Mongrel Mob) had two alleged objectives; first, the commission of drug dealing offences and second, the commission of serious violent offences. He was satisfied that there was “abundant evidence” to establish the objective of drug dealing, but in that respect the s 98A charge was a duplicate of conspiracy charges, so should be removed from the indictment.
[70] As to the second objective, that of committing serious violent offences, the Judge noted that during the period covered by the charges, two of the co-accused had been charged with a serious violent offence, after an incident in which a group of armed and disguised men, alleged to be members of the Mongrel Mob, had invaded a house and seriously assaulted a member of another gang. Assuming they were found guilty, the Crown intended to adduce evidence of that incident as part of the proof of the “violence” objective.
[71] Panckhurst J concluded that evidence of one violent offence was insufficient
to prove the objective of committing violent offences. There being no other admissible evidence as to the alleged objective, he concluded that those of the accused charged under s 98A should be discharged under s 347.
[72] Ms O’Brien submitted that Ryan is authority for the admissibility of evidence
of current criminal behaviour of other members of the alleged group, to prove the element of the group’s alleged objective. Mr Mabey submitted that Ryan did not assist the Crown, principally on the basis that in that case, the evidence to be adduced for the “violence” objective was in relation to co-accused, whereas in the present case it related to persons who were not jointly accused with Mr Phillips and Mr Dixon.
[73] The proper approach to the evidence intended to be given by Mr Clark is to balance its probative value against its prejudicial effect. I accept Mr Mabey’s submission that the fact that one other person at the property has been charged with a “qualifying” offence, and that other individuals have been charged with lesser offences would not provide a sound basis for the jury to infer that the FFMC had the
shared objective of obtaining material benefit from the “manufacture and distribution
of unlawful drugs”.[18] The probative value of the evidence is, therefore, not high.
[18] See fn 16
[74] On the other hand, the potential prejudicial effect of referring to the charges
in evidence is substantial, in the risk, as identified by Heath J in Tihi,[19] of a guilty finding “by association”. In my judgment, any probative value is outweighed by the prejudicial effect. I have concluded that Mr Clark’s evidence as to who was located at the property, and the offences with which various of those people have been charged, is inadmissible.
[19] See fn 9
Constable Harris’ evidence
[75] Constable Harris was officer in charge of exhibits in the execution of the search warrant at the FFMC property. Mr Mabey’s challenge was in respect of Mr Harris’ references to “item 22” (found in Mr Dixon’s room) and the four steel boxes (found in the storage/“patch” room). He submitted that neither was relevant to any of the charges against Mr Phillips.
[76] Ms O’Brien submitted that “item 22” is relevant to Count 1 against Mr
Phillips, the charge of possession of methamphetamine for supply. The Crown case
is that “item 22” is a direction or order, from one person to another to sell drugs, and supports the finding of scales and snaplock bags in Mr Phillips’ room as being probative of dealing. Ms O’Brien submitted that “item 22” can be “tied” to Mr Phillips on the basis of his position of authority in the FFMC.
[77] Mr Mabey submitted that it is “seriously speculative” to put “item 22” forward as being a direction to deal. There may be force in that submission, but in my judgment there is more force in his submission that there is, in fact, nothing to connect Mr Phillips with “item 22”. There is no evidence as to authorship, or fingerprint analysis; the only evidence put forward by the Crown to connect Mr Phillips with “item 22” is his status in the FFMC. In my judgment, that is not
sufficient, and would be an unsafe basis on which to invite a jury to infer that Mr
Phillips had instructed Mr Dixon (or anyone else) to deal in drugs.
[78] Turning to the “steel boxes”, I was not pointed to any evidence that connected Mr Phillips with any one or all of the boxes, other than his status in the FFMC. I note that Detective Kingsbury does not refer to the boxes in his comments
in his brief of evidence in relation to items found at the FFMC property (he refers only to items found in Mr Phillips’ room).
[79] The fact that the boxes were individually locked would appear to be as consistent with their being “safe boxes” for individual members of the FFMC as with any other explanation. To invite the jury to make one inference over another would be, in my judgment, to invite them to guess. Further, it is hard to see the relatively modest amounts of cash found as being probative of dealing (particularly in the light of Detective Kingsbury’s evidence as to the prices at which methamphetamine an cannabis are bought and sold).
[80] I am not persuaded that, in the absence of evidence linking them to Mr
Phillips, Mr Harris’ evidence as to “item 22” and the “steel boxes” is relevant to any
of the charges against him. In respect of the charges against Mr Phillips it is inadmissible.
[81] As “item 22” was found in Mr Dixon’s room, it crosses the line of relevance
to the charge of possession of LSD supply against him, but in the absence of further evidence, may not be of great weight. My comments as to the “steel boxes” in relation to the charges against Mr Phillips apply equally to the charges against Mr Dixon. In my judgment the evidence as to finding the “steel boxes” is not relevant to either of the charges against Mr Dixon.
The application for a discharge under s 347 Crimes Act
[82] Mr Mabey submitted that, shorn of inadmissible material, the evidence against Mr Phillips on the s 98A charge was insufficient to support a conviction: a properly directed jury could not convict and any such conviction would be unsafe.
[83] Tailoring the elements of s 98A to the present case, there must be evidence
on which the jury can be satisfied beyond reasonable doubt that:
a) Mr Phillips is a member of the FFMC.
b)The FFMC is an ”organised criminal group”, in that it is a group of three or more people who have as their objective, or one of their objectives, obtaining material benefit from the commission of offences, namely the manufacture and distribution of unlawful drugs and associated weapons offences.
c) At least three persons in the FFMC share one of the common objectives set out in (b) above;
d) Mr Phillips knew that the FFMC is an “organised criminal group”;
and
e) Mr Phillips knew that his participation contributed to the occurrence
of criminal activity, or was reckless as to whether his participation might contribute to the occurrence of criminal activity.
[84] As Mr Mabey submitted, (b) is crucial in this case. He submitted that there is
no evidence of the common objective that is required, so that there is no evidence to support a finding that the FFMC is an “organised criminal group”.
[85] In her written submissions Ms O’Brien submitted that proof of the FFMC’s objectives was by inference from:
i) police intelligence of gang’s operation, involvement
ii) specific overt behaviour by other group members at [the
FFMC property] and nationally
iii) specific physical structures of group premises
iv) accused’s individual involvement in criminal acts.
[86] In the light of the conclusions set out above as to the evidence of Detective
Sergeant Garrett, Detective Kingsbury, and Constables Clark and Harris, the Crown
evidence for the s 98A charges against Mr Phillips comprises Mr Garrett’s general, background, evidence as to the structure and organisation of “outlaw motor cycle gangs”, including the typical headquarters, and the evidence in respect of the individual charges against Mr Phillips, which includes his status within the FFMC and the description of the property.
[87] In my judgment that does not provide a sound basis on which a jury could draw the inferences required to prove, as is required for the s 98A charge, that the FFMC is an “organised criminal group”. Accordingly, the appropriate course is for Mr Phillips to be discharged on Count 3 under s 347 of the Crimes Act. The order
for discharge will be required to be made in open Court.
Application for severance of the s 98A charge
[88] In the event that the application for Mr Phillips’ s 347 discharge on the s 98A charge did not succeed, Mr Mabey applied on behalf of Mr Phillips under s 340(3) of the Crimes Act for an order that Count 3 be severed from, and tried separately to, the other two Counts in the indictment. As the s 347 application has succeeded, it is not necessary to deal with the application for severance.
Result
Detective Sergeant Garrett’s evidence
[89] Statements A-J and L (as set out at [22]-[23]) are inadmissible. Statement K
is admissible. Subject to the deletion of the phrase “the overall propensity of motor cycle gangs to be involved in the drug trade, and”, statement M is admissible.
Detective Kingsbury’s evidence
[90] The passage set out at [10] is inadmissible.
Constable Clark’s evidence
[91] Detective Clark’s detailed description of the FFMC property is admissible. His evidence as to individuals located at the property, and offences with which individuals have been charged, is inadmissible.
Constable Harris’ evidence
[92] Constable Harris’ evidence in relation to “item 22” and the “steel boxes” is inadmissible against Mr Phillips.
Section 347 discharge
[93] Mr Phillips is to be discharged on Count 3 in the indictment. The order for discharge is required to be made in open Court.
Mr Dixon
[94] As recorded at [13], above, it was understood at the hearing that the Court’s decision in respect of Mr Phillips will apply to Mr Dixon. Accordingly, with one exception, the rulings set out above apply also to Mr Dixon. The exception is Constable Harris’ evidence in relation to “item 22”. That evidence is admissible against Mr Dixon.
Andrews J
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