R v Taea - [2007] NZCA 472

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT (BUT NOT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/07 [2007] NZCA 472

THE QUEEN

v

TEARIKI TEVARE TAEA

Hearing: 16 October 2007
Court: O'Regan, Chisholm and Potter JJ Counsel: B J Horsley for Crown
A J S Snell for Respondent

Judgment: 31 October 2007 at 11 am

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is allowed in part.

CThe evidence of the supply of methamphetamine by the appellant to an undercover police officer on 3 March 2006 and of the conversation between the appellant and the undercover officer immediately thereafter
is admissible at the appellant’s trial. The evidence relating to

R V TEARIKI TEVARE TAEA CA CA442/07 31 October 2007

“Georgina” is inadmissible except to the extent that the trial Judge believes it is necessary to admit that evidence in fairness to the defence to identify the credentials which the undercover police officer established before the purchase of methamphetamine from the appellant.

DWe make an order prohibiting publication of the reasons for judgment (but not the result) in news media or on internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest is permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Solicitor-General appeal

[1] Teariki Taea faces charges of supplying methamphetamine and possessing methamphetamine with intent to supply. In a pre-trial ruling, Heath J ruled inadmissible evidence that Mr Taea was convicted – following a guilty plea – of supplying methamphetamine to an undercover police officer about two and a half months before the events which led to his arrest for the alleged offending for which he faces trial and evidence of the discussions between the undercover officer and Mr Taea at the time of that supply: HC NAP CRI 2006-020-2796 20 August 2007. The Solicitor-General seeks leave to appeal against that ruling.

Issue on appeal

[2] The proposed appeal requires us to consider the application of some of the new propensity provisions in the Evidence Act 2006, namely ss 40 and 43. The essential issue is whether the Judge was correct in his assessment that probative value of the evidence of the earlier offending was outweighed by the risk that it may have an unfairly prejudicial effect on Mr Taea’s defence. In order to address that issue, we will first consider the proposed evidence of the earlier offence and the present factual context, before turning our attention to ss 40 and 43 and their application in the present case.

The evidence of earlier offending

[3] The evidence which the Crown seeks to adduce is that of an undercover police officer, using the name “Mark Peters”. We summarise his evidence in [5] - [7] below.

[4] Mr Peters went to Mr Taea’s home at Hastings on 3 March 2006.…

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 Taea

Details

AGLC: R v Taea [2007] NZCA 472
Case: [2007] NZCA 472
Decision Date: 31 October 2007

CaseChat Overview and Summary

Teariki Tevare Taea is facing charges of supplying methamphetamine and possessing methamphetamine with intent to supply. In a pre-trial ruling, Heath J ruled inadmissible evidence of Mr Taea's conviction for supplying methamphetamine to an undercover police officer two and a half months before the events which led to his arrest for the alleged offending for which he faces trial, and evidence of the discussions between the undercover officer and Mr Taea at the time of that supply. The Crown appeals against that ruling. The appeal requires us to consider the application of some of the new propensity provisions in the Evidence Act 2006, namely ss 40 and 43. The essential issue is whether the Judge was correct in his assessment that the probative value of the evidence of the earlier offending was outweighed by the risk that it may have an unfairly prejudicial effect on Mr Taea’s defence. In order to address that issue, we will first consider the proposed evidence of the earlier offence and the present factual context, before turning our attention to ss 40 and 43 and their application in the present case. The evidence of earlier offending was of an undercover police officer, using the name “Mark Peters”. Mr Peters went to Mr Taea’s home at Hastings on 3 March 2006, was invited into the house and there were two men (including Mr Taea) and two women. There was a glass methamphetamine pipe on the table at which the men and women were seated. Mr Peters told Mr Taea that he was “a friend of Georgina’s” and that he had come “to score”. Mr Taea replied that he did not know anyone called Georgina. Mr Peters explained that he had come to Mr Taea’s house two weeks earlier with Georgina, but that Mr Taea was not there. Georgina had “scored” from Mr Taea some time after that and Mr Peters had then acquired the drugs from Georgina. Georgina told Mr Peters that she would text Mr Taea. Mr Taea asked to see the text from Georgina to that effect. Mr Peters showed Mr Taea a text message, and the telephone number from which it was sent, to verify that Georgina had got in touch with Mr Taea. Mr Taea asked Mr Peters to call Georgina. Mr Peters said “OK”, at which point Mr Taea indicated that calling Georgina would not be necessary. Mr Peters then asked Mr Taea to supply him with “a quarter”. Mr Taea left the room and returned with a bag containing a quarter of a gram of methamphetamine. Mr Peters then paid Mr Taea $250 for the bag. Mr Peters said that as he was about to leave, he asked Mr Taea if he could come back. Mr Taea replied “yeah yeah”. Mr Peters then left the house. Mr Peters’ undercover activity was part of a police operation in the HawkesBay area that continued for some months. It was not discontinued until August 2006, at which time the police charged Mr Taea with supply of methamphetamine to Mr Peters. Mr Taea pleaded guilty to that charge. The alleged offending for which Mr Taea faces trial occurred before Mr Taea was charged in respect of the (earlier) supply to Mr Peters. The Crown’s case in respect of the 27 May 2006 supplying charge is circumstantial. It will invite the jury to infer that Mr Taea supplied methamphetamine to someone other than Mr Peters between 3 March and 27 May 2006. The items located on Mr Taea’s person, in his car, and at his house on 27 May 2006 will form part of the circumstances from which that inference could be drawn. The Crown also wishes to lead evidence of the conviction for the 3 March supply to Mr Peters, and the events surrounding it, as part of those circumstances. In particular, the Crown wishes to lead evidence of the conversation between Mr Peters and Mr Taea in which Mr Peters asserted that Georgina had previously “scored” from Mr Taea (and onsold to Mr Peters), the actual supply by Mr Taea to Mr Peters, and the conversation in which Mr Taea said “yeah, yeah” to Mr Peters when Mr Peters asked if he could come back to the house. The Crown will invite the jury to infer that Mr Taea’s answer, “yeah, yeah” indicated that he was willing to sell methamphetamine to Mr Peters in the future. The evidence of the sale on 3 March and the exchange between Mr Taea and Mr Peters thereafter add significant probative weight to the Crown’s circumstantial case against Mr Taea. If the jury accepts that the exchange after the sale indicates a preparedness by Mr Taea to sell methamphetamine to Mr Peters again, then the evidence could be taken as evidence of a commercial sale to someone who is not personally known to Mr Taea in circumstances where Mr Taea was prepared to make further sales if asked to. That provides a basis for the Crown to ask the jury to infer that Mr Taea was, at the beginning of March, involved in an ongoing commercial methamphetamine dealing operation. The evidence of the sale on 3 March 2006 and of the conversation between Mr Peters and Mr Taea thereafter is admissible at Mr Taea’s trial. The evidence of the discussion between Mr Peters and Mr Taea relating to Georgina is not admissible, except to the extent that the trial Judge believes it is necessary to admit that evidence in fairness to the defence to identify the credentials which Mr Peters established before the purchase of methamphetamine from Mr Taea on 3 March 2006.

Orders