R v S HC Auckland CRI 2006-004-10307

[2008] NZHC 1691

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-010307

THE CROWN

v

S

Hearing:         3 November 2008

Appearances: T  Robertson for the Crown

J C Down for the Accused

Judgment:      3 November 2008

ORAL JUDGMENT OF PRIESTLEY J (On s 344A application)

Counsel:

T Robertson, Crown Solicitor, PO Box 2213, Auckland 1140. Email: [email protected]

J C Down, Barrister, P O Box 941, Shortland Street, Auckland 1140

Email: [email protected]

R V S HC AK CRI 2006-004-010307  3 November 2008

[1]      At the outset of the trial, counsel indicated to me there was an admissibility issue.  This issue has been brought before me procedurally and correctly by way of s 344A application by the Crown.

[2]      The  challenged  evidence  relates  to  two  notebooks,  being  standard  New Zealand produced 3B1 notebooks, found in the car under the control of the accused on the night of 18 May 2006.  The two notebooks were found between the right side of the front passenger seat and the left side of the console.

[3]      These notebooks appear to be linked to the accused by forensic evidence.

[4]      One  notebook  has  written  on  its  outside  cover  beside  the  printed  word “Name”, the words “Me mine”.  The other notebook has the name “Rocky Vercoe”, the year ”2006”, and beside the word “Subject” hand-written letters “to do”.

[5]      Inside both notebooks is a miscellany of hand-written information.   Some relate to notes of vehicles and tyres. Some have columns of very low digit numbers. There are columns of high digit numbers.  There are lists of hand-written names.  On page 116 (an exhibit page) of one of the notebooks there are 12 Christian names listed with quite large four or five digit figures beside them.  There are occasional arithmetical calculations.   There is no page showing decreasing numbers beside a name which often appear in tick books showing running tallies of debt.

[6]      The Crown intends to call evidence from Detective Sergeant B J Howard. I note that evidence needs to be finalised.   I direct that before Mr Howard is called there must be agreement between counsel as to his evidence-in-chief.   The last paragraph of that evidence  currently states  that  the  notebooks  found  during the search of the motor vehicle which the accused controlled that night is “consistent with a tick book in that they contain a number of first names of persons alongside an apparent amount of money presumably owed by that person”.  That opinion evidence follows what is an unobjectionable description of tick books and their function in general.

[7]      I  am  bound  to  say  whether  or  not  these  notebooks  are  tick  books  is problematic.  Certainly the exhibits do not constitute, in my judgment, a particularly strong or helpful example of tick books.  Some pages of them might be tick lists. Undoubtedly this evidence from Detective Sergeant Howard will be explored in cross-examination and will be a legitimate topic for submissions.

[8]      The  Crown  submits  that  the  evidence  relating  to  the  two  notebooks  is admissible.    Both  notebooks  are  linked  to  the  accused  by,  first,  one  of  his fingerprints  on  an  inside  page,  and  secondly,  evidence  to  be  called  from  a handwriting expert that much of the handwriting is the accused’s.

[9]      Mr  Down  helpfully  informed  me  that  there  is  no  dispute  that  the  two notebooks are linked with the accused in that manner.  Whether or not the accused intends to give some explanation about these two notebooks is a  matter  as  yet unknown.

[10]     Mr Down challenged the admissibility of the notebooks. It is that they are, although relevant, of limited probative value but highly prejudicial.  That prejudice, submits counsel, is particularly relevant to the central issue of this trial which will be whether or not on the night in question the accused was actually in possession of the contents of a bag found on the front passenger side well of the vehicle.  That bag contained a number of drugs, electronic scales, cash, and other items.

[11]     Significantly, none of the contents of the bag can be forensically linked to the accused.  Other items in the car, however, such as snaplock bags, some of which, I am told by counsel, contained quantities of methamphetamine, are to be produced in evidence.

[12]     The issue for me, central to this 344A application, is whether the probative value of the evidence of the two notebooks is exceeded by their unfairly prejudicial effect.   My initial view was that this involved a balancing exercise of the type contemplated by s 8(1).   Clearly the evidence of the notebooks is relevant to s 7 purposes.

[13]     The same balancing exercise, however, is brought into play by the propensity sections, and in particular by s 43(1).  Clearly, both counsel would prefer me to deal with it as a propensity matter, although the test is the same.

[14]     The Crown’s submission is that tick books (if that is what the notebooks are) are one of the indicia of a drug dealer.  It is the Crown’s case that the accused was a drug dealer.   The Crown is of the view that the notebooks are thus properly admissible because they tend to show that the accused, on the night in question, was a drug dealer.  Its probative value, in Ms Robertson’s submission, does not outweigh its prejudicial value.

[15]     Mr Down disputes that analysis.   In careful and succinct submissions he made a number of observations.  The first was that, unlike the contents of the bag which were not linked to the accused (other than by his proximity), the notebooks are forensically linked to the accused.  Secondly, he submitted that if the notebooks were tick lists, they referred only to past dealings of the accused (a proposition which, of course, counsel does not accept) rather than to some future intention to supply.  Thirdly, on the central issue of this trial, counsel submitted that the evidence of the notebooks loomed large in the case against the accused.

[16]     Mr Down referred me to s 43 of the Evidence Act 2006:

43       Propensity evidence offered by prosecution about defendants

(1)       The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

(2)       When  assessing  the  probative  value  of  propensity  evidence,  the

Judge must take into account the nature of the issue in dispute.

(3)       When  assessing  the  probative  value  of  propensity  evidence,  the

Judge may consider, among other matters, the following:

(a)      the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b)       the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c)       the  extent  of  the  similarity  between  the  acts,  omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d)       the  number  of  persons  making  allegations  against  the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e)       whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f)       the   extent   to   which   the   acts,   omissions,   events,   or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

(4)      When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—

(a)       whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and

(b)       whether the fact-finder will  tend  to  give  disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[17]     When looking at the ss (3) check list, Mr Down submitted that very few of these matters were relevant.  In particular, counsel submitted that under s 43(4)(b) there was a significant risk that the jury might give disproportionate weight to the finding and linking of the notebooks when considering the central issue of whether the Crown have proved beyond  reasonable doubt the drugs found in  the  motor vehicle on 18 May 2006 were possessed by the accused.

[18]     I  specifically  asked  Ms  Robertson  how  she  intended  to  deal  with  the notebooks in her opening.  She indicated she was going to indicate in a general way the available evidence as to where they were found and how they had been linked to the accused by fingerprint and handwriting evidence.  She is also going to indicate to the jury that there would be evidence that these were notebooks constituted tick books.  She accepted a suggestion from me that if the evidence was admissible, she would also  indicate  to  the  jury that  what  they are  made  of  the  notebooks  was ultimately a matter for them.

[19]     I note that the accused, so his counsel informs me, intends to give evidence. Exactly how he might deal with the issue of the notebooks I have not inquired.   I

consider it unfair and not my function to inquire at this juncture.  Clearly, however, if the notebooks are admitted in evidence, they are matters with which the accused will probably want to deal and on which, of course, he will be cross-examined.

[20]     I have considered very carefully Mr Down’s competent submissions.  There is no challenge to the relevance of the notebooks.  The sole issue was whether their probative worth is outweighed by prejudice.  When I look at the s 43(3) check list, I regard the tick books as being a “one off” circumstance.   There is no available evidence that the Crown has a history of past dealings in this particular case.

[21]     The real issue therefore is, whether in terms of s 43(4) (and although Mr Down does not rely on s 43(4)(a) I consider that sub-section is also brought into play), the evidence of the notebooks is likely to unfairly predispose the fact-finder against the accused and/or whether the jury would give disproportionate weight to the notebook evidence.

[22]     On balance, I consider that the notebooks should be admitted in evidence.  As I have already indicated, they do not constitute the strongest example of tick lists. Although the Crown may want to submit to the jury that they are tick lists, the Crown’s submission, of course, is not evidence. I consider it would be wrong in principle to exclude the evidence.   Although I can understand defence counsel’s anxiety about  what  weight  the  jury may give  to  the  notebook  evidence,  in  my judgment it is part of the overall factual matrix which should properly be placed before the jury.

[23]     The relevance of the notebooks will ultimately be a matter for evidence (and all the evidence on the issue is not yet in), submission, and direction by me.  I record, as I indicated to counsel during argument, I would certainly be directing the jury that they should not place undue weight on the notebooks. I consider that the notebook evidence may be of some assistance to the jury on the central issue of possession of drugs on the night in question.   I do not consider, however, that the  notebook evidence is conclusive.

[24]     Nor do I consider, given the totality of the evidence the jury is likely to hear, that they would give such evidence disproportionate weight.  I do not consider that the prejudicial nature of the evidence outweighs its probative value in the context of this trial.  Nor do I consider, on balance, that the evidence would unfairly predispose the jury against the accused.

[25]     For all these reasons therefore I rule on the Crown’s s 344A application that the evidence of the notebooks which I have outlined is admissible.  I do, however, signal strongly to Crown counsel that I would take a very dim view if during the course of her opening, or indeed at any other stage, she placed disproportionate reliance on the notebook evidence.

[26]     Possession, as I have said several times now, is the central issue in this trial. It is for the Crown to establish beyond reasonable doubt that the contents of the bag can, in all the circumstances, be linked to the accused.  Crown counsel, as a matter of fairness, must be cautious to ensure that the notebook evidence in that regard is not over-egged.

..........................................… Priestley J