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R v Scanlon

R v Scanlon

Case [2018] NZHC 2664 15 October 2018

Admissibility of Evidence

Co-conspirators' Statements

Hearsay Exceptions

Obstructing Justice

Criminal Law

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-063-3068

[2018] NZHC 2664

THE QUEEN

v

IRENE MARGARET SCANLON

Hearing: 15 October 2018

Counsel:

L Dunn for Crown

M W Ryan for Defendant

Judgment:

15 October 2018

Reasons:

8 November 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 November 2018 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Almao Douch (Hamilton) for Crown

R v SCANLON [2018] NZHC 2664 [15 October 2018]

Introduction

[1] Ms Scanlon was arraigned on 15 October 2018 and given in charge of the jury on two charges. The one with which I am concerned now is a charge of wilfully attempting to obstruct the course of justice.1 I gave a results decision on two applications: to admit evidence of an intercepted telephone call against Ms Scanlon and to order specific disclosure against the Crown. I granted the former and refused the latter. I now give my reasons.

Background

[2] Mr Rollie Heke was in a motor vehicle which ran out of petrol and stopped while being chased by Police. This was at about midnight on 13 August 2017. Mr Heke got out of the car and fired at least 15 shots in the direction of police officers using an AK47 military style semi-automatic rifle. Mr Heke fled the area on foot and he was the subject of an intensive Police search which ended on 25 August 2017 when he was located at 10 Daniel Street, Kaingaroa, and arrested. Mr Heke has since pleaded guilty to a charge of using a firearm against law enforcement officers and is awaiting sentence.

[3] The Crown’s case was that over the period of some 12 days during which Mr Heke was at large, he was given help by a number of people so as to avoid arrest. He needed food, shelter and transport.

[4] Ms Scanlon knew Mr Heke well and had been in a domestic relationship with him. The Crown alleged she conspired with Mr Heke for the purpose of assisting him to avoid arrest. Others were part of the conspiracy. The Crown has intercepted communications it wished to call in the trial of Ms Scanlon. Some are between Mr Heke and Ms Scanlon and directly provide evidence of her involvement with him. All but one of the intercepted communications took place on 24 August 2017.

1 The jury found Ms Scanlon guilty on this charge on 19 October 2018.

Section 22A, Evidence Act 2006

[5] There is one intercepted communication which was in contention. It is the second communication on 24 August 2017, being a conversation between Mr Heke and a Mr Glen Smyth which took place…

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.

Continue reading R v Scanlon

Details

AGLC: R v Scanlon [2018] NZHC 2664
Case: [2018] NZHC 2664
Decision Date: 15 October 2018

CaseChat Overview and Summary

Irene Margaret Scanlon was charged with wilfully attempting to obstruct the course of justice, in connection with an incident where Mr Rollie Heke was being sought by police for firing at them with an AK47 rifle. The Crown sought to introduce evidence of intercepted telephone communications between Mr Heke and others, including Scanlon, to establish Scanlon's involvement in helping Mr Heke evade arrest. Scanlon objected to the admissibility of these communications on several grounds, including the failure to provide written notice of the intention to call such evidence within a reasonable time before the trial. Scanlon also sought specific disclosure from the police's National Intelligence Application database, relating to drug dealing activities at the address where she was arrested, to support her defence that the methamphetamine found was not hers.

The court had to decide whether the intercepted communications were admissible against Scanlon under section 22A of the Evidence Act 2006, and whether Scanlon was entitled to the specific disclosure from the police database under section 30 of the Criminal Disclosure Act 2008. The court granted the Crown's application to admit the intercepted communications, finding there was no substantial prejudice to Scanlon despite the late notice. The court ruled that section 22A operates independently of section 18 of the Evidence Act, which relates to the unavailability of the maker of the statements. The court found that Scanlon's involvement in the conspiracy was sufficiently linked to the substantive charge against her, and that the conversation was in furtherance of the conspiracy. The court refused Scanlon's application for disclosure from the police database, finding that the information could be led through other means and that there was no apparent relevance in the database printouts.

The court's reasoning was based on a natural reading of the statutory provisions, which show that both sections 18 and 22A carve out exceptions to the hearsay rule. The court also considered the purpose of section 22A, which is to admit hearsay statements in the context of a criminal enterprise where the statements made by one participant are attributable to the others. The court found that requiring co-conspirator's hearsay statements to also satisfy the requirements of section 18 would undercut the purpose of section 22A. The court also found that Scanlon could achieve her purpose through the Crown's concessions on other evidence, and that there was no apparent relevance in the police database printouts.

Orders