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.  He was invited into the house, where 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.

[5]      Mr Peters told Mr Taea that he was “a friend of Georgina’s” and that he had come  “to  score”.    It  is  accepted  that  this  means  to  acquire  methamphetamine. 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.

[6]      Mr Peters then asked Mr Taea to supply him with “a quarter”.  It is accepted that this term refers to 0.25 of a gram of methamphetamine.  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.

[7]      Mr Peters’ undercover activity was part of a police operation in the Hawkes

Bay 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.

Background to the current charges

[8]      On 27 May 2006, Mr Taea was stopped by police for speeding at Hastings. The police officer smelled cannabis while speaking to Mr Taea and observed a methamphetamine pipe on the car’s central console.  Mr Taea and his car were then searched pursuant to the Misuse of Drugs Act 1975.

[9]      Mr Taea was wearing a pistol holster and had on his person a number of empty snaplock bags, and snaplock bags containing both methamphetamine and MDMA.   The amount of methamphetamine was in excess of five grams (the presumptive level for supply).  Mr Taea had a shoulder bag containing $40,000 cash.

[10]     The vehicle contained a number of firearms including a pistol, a sawn-off shotgun, three airguns and a paintball gun.

[11]     Later in the day Mr Taea’s home (at which Mr Peters had purchased the 0.25 of a gram of methamphetamine from Mr Taea on 3 March 2006) was searched.  The search of the house revealed further snaplock bags which themselves contained point bags of methamphetamine, live ammunition, some firearms, a quantity of cannabis and some utensils.  The house also had a CCTV security system.

[12]     The  searches  of  27  May  2006  led  to  a  number  of  charges  for  firearms offences and for offences relating to the MDMA, cannabis and utensils.  Relevantly to the present appeal, Mr Taea was charged with possession of methamphetamine for supply (relating to the methamphetamine found on his person) and supply of methamphetamine between 3 March 2006 and 27 May 2006 to unspecified persons (ie between the date of the supply to Mr Peters and Mr Taea’s subsequent arrest on the charges the subject of the upcoming trial).

The Crown’s case for admission of the evidence of the 3 March 2006 offending

[13]   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 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.

Relevant provisions

[14]     The relevant provisions of the Evidence Act are ss 7, 8, 40 and 43.

[15]     Section  7  establishes  the  general  principle  that  all  relevant  evidence  is admissible in a proceeding unless it is either excluded or rendered inadmissible by another section of the Evidence Act or another Act.  Section 7(3) says evidence is

relevant if it “tends to prove or disprove anything that is of consequence to the determination of the proceeding”.

[16]     Section 8(1)(a) requires a trial Judge to exclude evidence if its probative value is outweighed by its unfairly prejudicial effect.  In making this determination, the Judge is required to take account of the accused’s right to offer an effective defence: s 8(2).

[17]     More specifically, ss 40 – 43 deal with the admission of propensity evidence. Sections  40  and  43  are  relevant  to  this  appeal.    Section  40(1)  provides  that propensity evidence:

(a)means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved: but

(b)      does not include evidence of an act or omission that is—

(i)1 of the elements of the offence for which the person is being tried; or

(ii)       the cause of action in the proceeding in question.

[18]      Section 40(3)(a) goes on to say that propensity evidence about a defendant in a criminal proceeding may be offered only in accordance with ss 41 – 43, depending on which is applicable.  The relevant provision in the present case is s 43.  Section

43(1) provides that the prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has probative value in relation to an issue  in  dispute  which  outweighs  the  risk  of  unfair  prejudice  to  the  defendant. Section 43 requires the Judge to take account a number of factors in assessing the probative value of the evidence.   The mandatory factor that the Judge must take account of is the nature of the issue in dispute: s 43(2).  A number of other factors of which the Judge may take account are listed in subs (3) and (4):

43       Propensity evidence offered by prosecution about defendants

…

(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.

[19]     Heath J cited with approval the recent statement by Asher J in Healy v R HC AK CRI-2006-044-6242 1 August 2007 at [23] that s 43, like the common law before it still requires that the evidence of propensity:

… must be highly focused and specific before it can outweigh the heavy illegitimate prejudice inherent in propensity evidence.

[20]     We do not consider it necessary to refer back to the law in force before the advent of the Evidence Act for guidance in dealing with the issue raised in the present case.  In our view, s 43 gives adequate guidance on the approach to be taken and we approach the present task by following the requirements of the section itself.

What is the issue in dispute?

[21]     Heath J identified the issue in dispute for the purposes of s 43(2) as:

… whether admission of the conviction and conversations into evidence will tend to prove that [Mr Taea] has a propensity to supply Methamphetamine to others.

[22]     The core contention for the Crown is that Heath J failed to correctly identify the issue in dispute in terms of s 43(2).   The Crown case is that Mr Taea was involved in an ongoing business of dealing drugs, in particular methamphetamine, at least between 3 March and 27 May 2006.  It will ask the jury to conclude that the drugs he possessed in the car were for sale, and that the cash in the car represented the proceeds of sales he had previously made.  Mr Taea’s defence will be that the methamphetamine carried by Mr Taea in his car on 27 May was for personal use, and that the $40,000 cash was the proceeds of a legitimate transaction (namely the sale of two cars).

[23]     Counsel for the Crown, Mr Horsley, emphasised that the sale to Mr Peters was of the same drug that it is now alleged Mr Taea continually supplied.   The transaction was one between a stranger and a drug dealer and had a “commercial flavour”, as compared with, say, supply to a friend.  Such a commercial supply will serve to rebut Mr Taea’s defences with respect to the methamphetamine found on his person and the cash.

[24]     We accept the Crown submission that the issue in dispute is more nuanced than that identified by the Judge.  The proposed evidence is not just evidence that Mr Taea  was  convicted  of  selling  methamphetamine.     As  Heath  J  correctly identified, it also encompasses the discussions between Mr Peters and Mr Taea at the time the sale took place.   That evidence, while fitting within the definition of “propensity evidence” in s 40, is one aspect of a circumstantial case (including the evidence of what was found when Mr Taea’s premises were searched – see [11] above) which the Crown wishes to advance.

[25]     We see the issues in dispute as being whether the methamphetamine found in Mr Taea’s car on 27 May was for his personal use or for supply and whether the cash found in the car was the proceeds of a lawful transaction or the proceeds of sale of methamphetamine.  Both are, to use the words of s 7(3), matters of consequence to the determination of Mr Taea’s case, and the proposed evidence is therefore highly relevant.  The area of debate is the balancing of the probative value of the evidence against its illegitimate prejudicial impact on Mr Taea’s defence, a task which both ss 8 and 43 require to be undertaken.

[26]     This is not a typical propensity case, where the Crown seeks to use evidence of one or more previous convictions as evidence that an accused is the type of person who commits offences having the characteristics of the offences for which he or she was previously convicted.

[27]     Here,   Mr   Taea   was   unaware   that   he   had   been   caught   selling methamphetamine on 3 March 2006 when he was stopped on 27 May 2006, and his conviction for the 3 March sale occurred well after 27 May 2006.   The Crown is seeking to establish a continuing course of conduct between 3 March and 27 May

2006.  That can be contrasted with the situation described in [26] above where the accused person would normally have faced the consequences of the previous conviction (possibly imprisonment) so an argument based on a continuing course of conduct would not be available.

The proposed evidence

[28]     The  proposed  evidence  can  conveniently  be  divided  into  three  separate elements, namely:

(a)       The  evidence  relating  to  the  discussion  between  Mr  Peters  and

Mr Taea relating to Georgina summarised at [5] above;

(b)       The evidence of the actual sale by Mr Taea to Mr Peters on 3 March;

(c)       The evidence of the exchange between Mr Taea and Mr Peters after the sale on 3 March.

[29]     We will  consider the evidence relating to  Georgina first.    We  will  then consider the other two elements together.

The evidence relating to Georgina

[30]     Heath J had no doubt that the evidence relating to Georgina should be ruled inadmissible, because it was highly prejudicial and it lacked probative value.

[31]     We agree with Heath J that the probative value of the evidence is minimal. The alleged sale by Mr Taea to Georgina was hearsay, as Mr Peters was recounting something which he said had happened, but which he had not himself witnessed. The subsequent on-sale by Georgina to Mr Peters was not something in  which Mr Taea was involved.   The text message from Georgina to Mr Peters appears to have been to the effect that Georgina had contacted Mr Taea to introduce Mr Peters, and, if so, it does not prove anything against Mr Taea.

[32]     Mr Horsley argued that the relevance of the evidence was Mr Taea’s reaction to being told about the Georgina transaction by Mr Peters: he said this indicated that Mr  Taea  did  not  contest  this  version  of  events  (indicating  the  likelihood  of  a previous sale to Georgina by Mr Taea) and also Mr Taea’s preparedness to sell methamphetamine to someone whom he did not know on the flimsiest of evidence of some previous association.   In our view this is of very limited probative value. Mr Horsley realistically accepted this in the course of argument.

[33]     We  also  agree  with  Heath  J  that  the  Georgina  evidence  would  have  a significant prejudicial impact because it will amount to an allegation of a previous sale of methamphetamine by Mr Taea to a person who is not a witness, recounted by someone who did not witness it.

[34]     In discussion with counsel it was apparent that, if evidence of the sale of methamphetamine by Mr Taea to Mr Peters were admitted, Mr Snell would seek to

have some evidence relating to Georgina admitted to ensure that the jury was aware that Mr Peters was not a complete stranger to Mr Taea, but had a mutual contact in the form of Georgina.

[35]     We agree with Heath J that the “Georgina” evidence should not be admitted at trial, except to the limited extent that the trial Judge considers it necessary in fairness  to  the  defence  to  provide  the  jury  with  an  accurate  picture  of  the “credentials”  Mr Peters  established  before  purchasing  methamphetamine  from Mr Taea.

Evidence of the actual sale on 3 March 2006 and the conversation thereafter

[36]     Heath J ruled these aspects of the evidence inadmissible, having considered the factors in s 43(3).  He saw their probative value as limited.  He considered that the conviction arising from the 3 March transaction added little to the question of whether Mr Taea had supplied methamphetamine to others in the period between

3 March and 27 May 2006.   It simply demonstrated that Mr Taea had supplied methamphetamine once, but did not tend to prove that he had done so on other occasions.  There was no evidence that the conversation about Mr Peters returning had led to any further sales of methamphetamine by Mr Taea to Mr Peters and the discussion itself proved nothing of any consequence.

[37]     On the other hand, Heath J saw the prejudicial effect of the evidence as very high.  He said the jury would know that Mr Taea had already been convicted on a charge  of  supplying  methamphetamine  in  the  relevant  period,  and  it  would  be difficult to advance a defence when the jury knew that.  He also considered there was a real risk the jury might give the conviction illegitimate weight despite any countervailing direction from the Judge.

[38]     Heath J noted that many of the factors set out in s 43(3) are expressed in the plural.  He considered that a single supply did not provide proof of supplies on other occasions.  Mr Horsley took issue with that.  He referred us to the decision of the England and Wales Court of Criminal Appeal in R v Hanson [2005] 1 WLR 3169 at [9] where the Court said:

There is no minimum number of events necessary to demonstrate such a propensity [to commit offences of the kind charged].  The fewer the number of convictions the weaker is likely to be the evidence of propensity.  A single previous conviction for an offence of the same description or category will often not show propensity.  But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged.

[39]     Mr Horsley said that the evidence of the previous supply in this case was so closely related to the time and circumstances of the subsequent possession that it has significant probative force in proving the charges which Mr Taea now faces.  It was the sale of the very same drug a short time before Mr Taea was found in possession of more of the same drug and a large amount of cash.  He said the High Court Judge had placed too much weight on the fact that the propensity evidence was of a single act,  and  had  not  looked  at  the  overall  circumstances  of  the  sale  and  its  close proximity to the events leading to the present charges.   Mr Horsley said the conversation after the actual supply was significant because it indicated Mr Taea’s willingness to make further sales to Mr Peters.   This supported the Crown’s contention  that  Mr  Taea  was  undertaking  an  ongoing  commercial  operation involving the supply of methamphetamine on arms-length commercial terms.

[40]   In short, Mr Horsley said that the circumstances of the earlier sale of methamphetamine  by  Mr  Taea  demonstrated  probative  force  in  relation  to  the offence charged, to use the words of the Court of Criminal Appeal in Hanson.

[41]     Mr  Snell  supported  the  High  Court  Judge’s  analysis,  in  particular  the implication from the factors in s 43(3) that a single incident could not amount to propensity.   He said that linking the money with which Mr Taea was found on

27 May 2006 to sales of methamphetamine was pure speculation with no direct evidence.   He noted that Mr Taea was found on 27 May 2006 not only with methamphetamine but also with other drugs and firearms.  He questioned whether admitting evidence in this case would effectively open the floodgates of evidence of one previous conviction being used as propensity for speculative representative charges.

[42]     Mr Snell argued that Mr Taea’s response of “yeah,  yeah” to Mr Peters’

question as to whether Mr Peters could come back did not give rise to an inference of

a willingness to make future supplies of methamphetamine.   He suggested it was simply an acknowledgement of Mr Peters’ departure.  We disagree.  It is capable of giving rise to the inference of a willingness to deal.   Whether that inference is actually drawn would be a matter for the jury.

[43]     In our view 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.

[44]     That inference would support the Crown case rebutting Mr Taea’s proposed defence to the charge of possession of methamphetamine for supply (that the methamphetamine was for personal use only) and would also support the Crown case that the evidence found on the search of Mr Taea’s car, and the later search of his premises, on 27 May 2006 is evidence of selling of methamphetamine by Mr Taea during the period 3 March and 27 May 2006.  The jury will not be asked to infer ongoing sales merely by virtue of the fact that a previous sale has occurred: the Crown case will depend also on the evidence of preparedness to supply again and the evidence found on the two searches that occurred on 27 May 2006.  We think that provides an answer to the floodgates argument made by Mr Snell.

[45]     The factor from s 43(3) which we see as critical in this case is s 43(3)(b), which refers to the connection in time between the acts which are the subject of the evidence and the acts which constitute the offence for which the defendant is being tried.  The time period in this case is relatively short (about 12 weeks).  We accept that, in terms of s 43(3)(a), the fact that only one previous sale is in evidence makes the evidence less compelling than if there were evidence of many sales, but if the jury accepts the inference the Crown asks it to draw from the “yeah yeah” remark, the jury may be prepared to infer that Mr Taea was indicating a preparedness to

undertake further supplies.  In terms of s 43(3)(c), the similarity in the present case lies in the fact that Mr Taea was found in possession of methamphetamine, the very drug that he had sold earlier to Mr Peters.

[46]     In summary, we differ from Heath J in our assessment of the probative value of this evidence.  In our view, it has potentially significant probative value.

[47]     We also take a different view of the prejudicial effect of the evidence from that expressed by Heath J.  In our view, the jury can be expected to comply with a direction that they should not jump to a conclusion that because Mr Taea has dealt on one previous occasion, he must have dealt during the period to which the charge relates.   While it may, as the Judge suggested, be more difficult for Mr Taea to advance his defence, this will be because the probative evidence against him will be strengthened by the admission of this evidence, rather than because of illegitimate prejudice against him.

[48]     Looking at the factors in s 43(4), we are satisfied that, if the jury is properly directed, the evidence will not unfairly predispose the jury against Mr Taea.  Nor do we agree with Heath J that, in terms of s 43(4)(b), the jury will give disproportionate weight to the proposed evidence.  This is a matter on which a clear direction will be required, and we see no reason to assume that the jury will not comply with such a direction.

[49]     Our overall assessment for the purposes of s 43(1) is that the probative value of the evidence of the sale on 3 March 2007 and of the conversation thereafter, in relation to the issues which will be in dispute at Mr Taea’s trial, outweigh the risk that the proposed evidence may have an unfairly prejudicial effect on Mr Taea.  We therefore respectfully disagree with the conclusion of the High Court Judge on this aspect of the case.

Result

[50]   We allow the appeal in part.   The evidence relating to the sale of methamphetamine  by  Mr  Taea  to  Mr  Peters  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.

Solicitors:

Crown Law Office, Wellington