R v Tanginoa
[2012] NZHC 3121
•22 November 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-004-015420 [2012] NZHC 3121
THE QUEEN
v
PETER LAWRENCE TANGINOA DOUGLAS DAVID AFEAKI
DAVID CHARLES STEPHEN JOSEPH MAFI
Hearing: 30 October 2012
Appearances: D G Johnstone and M Geller for Crown
P Le'au'anae for Tanginoa G N E Bradford for Afeaki M N Pecotic for Mafi
Judgment: 22 November 2012
REASONS OF POTTER J FOR DISMISSING
CROWN’S APPLICATION TO ADMIT EVIDENCE OF CONVICTIONS
This judgment was delivered by Justice Potter on
22 November 2012 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140 [email protected]
Copy to:
P Le’au’aunae, PO Box 76616, Manukau City 2241 [email protected]
GNE Bradford, PO Box 2274, Shortland Street, Auckland 1140 [email protected]M N Pecotic, PO Box 6379, Wellesley Street West, Auckland 1140 [email protected]
R V TANGINOA HC AK CRI-2011-004-015420 [22 November 2012]
Introduction
[1] Peter Tanginoa faces trial on the following charge:
… that between 1 June 2011 and 30 August 2011 at Auckland conspired with
others to import a Class A controlled drug into New Zealand.
[2] Douglas Afeaki and David Mafi face trial on the following charge:
… that between 1 June 2011 and 30 August 2011 at Auckland conspired together and with others to supply a Class A controlled drug to one or more other persons.
[3] Mr Tanginoa was charged jointly with Angus Naupoto, who entered a guilty plea prior to trial. Mr Afeaki and Mr Mafi were charged jointly with William Wolfgramm, who entered a guilty plea and has been sentenced.
[4] In its amended application dated 29 October 2012, the Crown applied to have admitted at the trial of Messrs Tanginoa, Afeaki and Mafi, evidence of the convictions of Mr Naupoto and Mr Wolfgramm to prove the existence of the conspiracies of which they respectively admitted by their guilty pleas, they were part. The application was opposed by all three accused.
[5] After hearing argument from counsel I dismissed the Crown’s application and
said that my reasons for that decision would follow. These are the reasons.
Factual background
[6] For the purposes of this application the factual background may be briefly summarised. The Crown case is that Mr Naupoto and Mr Tanginoa were victims of a scam by persons in Tonga who claimed they had access to a stockpile of some 400 kilograms of methamphetamine located somewhere in Tonga. The Crown alleges that Messrs Naupoto and Tanginoa entered into a conspiracy to import the methamphetamine into New Zealand; and then to sell it and share the profits. To this end they engaged with Mr Wolfgramm, who in turn arranged with Messrs Afeaki and Mafi to take delivery of the methamphetamine and to sell and distribute it in
New Zealand. Something in excess of NZ$7,000 was transferred in instalments to the Tongan associates. NZ$3,500 of this was provided by Mr Mafi.
[7] When the police in Tonga and New Zealand became aware of communications and arrangements between these parties they conducted an operation named “Tango” which included the interception and translation into English of numerous telephone calls, texts and e-mail messages between 23 July and
23 August 2011 between the Tongan associates, Messrs Naupoto and Wolfgramm and the accused. The police terminated the operation when they became concerned for the safety of a woman said by the Tongan associates to be held hostage in Tonga. The scam was then revealed. No drugs, no vessel to transport the drugs to New Zealand (which had been the subject of considerable discussion in the communications between the participants), and no hostage existed. The scam had been designed and directed by a Mr Tukia in Tonga to derive money from Mr Naupoto.
[8] The Crown’s case relies significantly on evidence of the intercepted communications obtained by the police pursuant to search warrants. The identity of the accused as participants in the relevant communications is not contested; rather, the subject-matter and meaning to be attributed to the various communications is disputed.
Trial issues
[9] The essential elements of a conspiracy as defined in R v Gemmell are: 1
(a) An agreement by two or more people to commit an offence; (b) The accused joined in the agreement; and
(c) The accused intended that the agreement be put into effect. [10] Therefore in relation to Mr Tanginoa the Crown must prove that:
(a) There was an agreement by two or more people to commit an offence; (b) The offence was importing a Class A controlled drug;
(c) Mr Tanginoa joined in the agreement; and
(d) He intended that the agreement be put into effect.
[11] In relation to each of Messrs Afeaki and Mafi, the Crown must prove that:
(a) There was an agreement by two or more people to commit an offence; (b) The offence was supplying a Class A controlled drug;
(c) He joined in the agreement;
(d) He intended the agreement to be put into effect. [12] The accused each contends in his defence that: 2
(a) The evidence does not establish to the required standard that there was
a conspiracy to import/supply Class A drugs;
(b)But if a conspiracy has been proved to exist, the evidence does not establish that he was a party to it.
Section 49 of the Evidence Act 2006
[13] The Crown relied on s 49 of the Evidence Act 2006 (“the Act”) which
provides:
2 Mr Tanginoa’s defence as subsequently revealed when Mr Le’au’anae opened his case and he gave evidence, was that the agreement to which he was a party was to import gold and kava, not methamphetamine.
49 Conviction as evidence in criminal proceedings
(1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.
(2) Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—
(a) permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and
(b) if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.
(3) A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.
[14] In submissions Mr Johnstone referred to the Law Commission Report on the
Evidence Act,3 as to the policy reasons for s 49:
233 The Law Commission considers that there are at least three policy reasons why convictions should be admissible in criminal proceedings:
•Time and expense will often be saved, since making convictions admissible would avoid forcing a party to litigate a matter that has already been resolved.
•It makes available evidence that is not only relevant, but also highly probative, since guilt will already have been established to the criminal standard of beyond reasonable doubt.
•Not to admit such evidence would run contrary to the policy of the criminal justice system that a criminal conviction is sufficient basis to impose grave penalties.
…
235 The party seeking to offer evidence of the prior conviction of any person will be required to identify the issue to which the conviction is relevant. … if a prior conviction is relevant to an issue in the case, for example the conviction of a third party for theft to support a charge of being an accessory after the fact, it is likely to be admissible.
[15] Mr Johnstone acknowledged that in this case, proving the convictions of Mr Naupoto and Mr Wolfgramm would save little in trial time and expense because of the need to place before the jury evidence of the nature and detail of the conspiracies alleged against Messrs Tanginoa, Afeaki and Mafi. He submitted, however, that proof of Mr Naupoto and Mr Wolfgramm’s convictions under s 49 would establish the fact of the conspiracies, enabling the jury to focus on the essential issue in the case, namely whether the accused were parties to the conspiracies. In terms of s 49(3), that is the purpose for which the Crown seeks to offer the evidence.
[16] Section 49(2) which, “in exceptional circumstances”, may permit a presumption of guilt based on a conviction previously entered to be rebutted, has no application in this case.
Other relevant provisions of the Evidence Act
[17] Section 7 of the Act provides that all relevant evidence is admissible unless inadmissible or excluded under the Act or any other Act. Clearly s 49 contemplates that evidence of the prior conviction will be relevant to the circumstances of the case in which it is sought to be admitted as evidence.
[18] Section 8 provides a general exclusion:
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
[19] Section 8(1)(b) does not apply in this case. Evidence of the convictions may result in some saving of time, but in any case would not prolong the proceeding.
[20] In opposing the Crown’s application, the defence significantly relied on s 8 and, in particular, the right of the accused to present an effective defence.
The parties’ positions
The Crown
[21] As a starting point, the Crown placed reliance on the precise terms of s 49 that evidence of convictions is admissible unless excluded by any other provision of the Act.
[22] In terms of the Law Commission’s policy reasons, while accepting that there would be little saved in time and expense because detail of the intercepted communications would be necessary to establish the alleged involvement of the
accused in the respective conspiracies, the Crown submitted:
Evidence of the convictions is highly probative of the existence of the alleged conspiracies, and that the conspiracies related to a Class A controlled drug
(methamphetamine).
Thepurpose for which the evidence of the convictions is offered is directed to proof of disputed facts in issue in the case and is therefore not prejudicial to the accused, in contrast to a situation where the purpose of evidence of previous convictions is to establish, for example, propensity to offend in the
manner alleged.
The certificate of convictions, if admitted, would exclude reference to Messrs
Tanginoa, Afeaki and Mafi, although they are named as co-conspirators in the charges to which Naupoto and Wolfgramm respectively entered guilty pleas.
Any risk of the jury determining guilt by association can be cured by clear directions from the trial Judge.
[23] The defence position was presented by counsel for Messrs Afeaki and Mafi.
Mr Le’au’amae, for Mr Tanginoa, did not present submissions but generally supported the defence submissions. Counsel submitted:
The conspiracies alleged in Counts 1 and 2 are quite different. Mr Afeaki
and Mr Mafi will contend that there was no conspiracy as alleged in Count 2.
The Crown must prove the conspiracy alleged against Mr Tanginoa in Count
1 and against each of Mr Afeaki and Mr Mafi in Count 2.
The Crown must also prove in the case of each of the accused that he was a
party to the relevant conspiracy.
Theguilty pleas by Mr Naupoto and Mr Wolfgramm are confessions by each of them that the allegations against them are true, but they are not admissible against the other accused. The other accused had no say in the entry of those guilty pleas. Section 49 cannot be applied to allow confessions of guilt by
one accused to be admitted as evidence against co-accused.
There is a significant risk that if the convictions of Mr Naupoto and Mr Wolfgramm are admitted, the jury could infer guilt of the accused simply by Mr Tanginoa’s association with Mr Naupoto in relation to Count 1 and Mr Afeaki’s association with Mr Wolfgramm in relation to Count 2. The charges against the accused are the same charges and relate to the same
period as the respective charges against Mr Naupoto and Mr Wolfgramm.
Proof of the convictions will not reduce the prosecution evidence. The Crown is seeking to bolster its case by having admitted to evidence the convictions of Mr Naupoto and Mr Wolfgramm.
[24] I was referred to several cases where a prior conviction of an accused person was admitted as evidence under s 49 in the trial of that accused for subsequent alleged offending. In such cases, the rebuttable presumption under s 49(2) is available for the protection of the accused in “exceptional circumstances”. Such cases include: R v K,4 R v Walker5 and Manukau v R.6
[25] I found these cases of limited assistance in this case. Here the Crown sought to have admitted evidence of the convictions following guilty pleas of alleged co- conspirators, to prove as a fact in the trial of co-accused, the existence and subject matter of the conspiracies of which they are alleged to be part.
[26] The most recent case that has discussed the application of s 49 is R v Bouavong.7 This case involved six defendants accused of multiple methamphetamine-related offences. Most of the charges related to discrete incidences of supply, but there were also two charges each of conspiracy and money laundering. Mr Bouavong pleaded guilty to the charges against him in the course of trial and two other co-accused had pleaded guilty prior to trial. The Crown, relying on R v Gui (summarised below), applied to adduce proof of these guilty pleas at the trial of the remaining accused. This evidence was directly relevant to resolving the
key factual issues of the substance in question and whether supplies occurred on the dates alleged.
[27] Toogood J considered that passing the s 8 threshold was a pre-condition for the application of s 49. Thus, evidence cannot be admitted under s 49 if its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on the proceeding.
[28] Viewed in isolation, Toogood J considered that the convictions were highly probative and would conclusively prove the key ingredients in the Crown case.
4 R v K HC Auckland CRI 2008-092-11859, 17 June 2010.
5 R v Walker [2007] NZCA 558.
6 Manukau v R [2012] NZCA 222.
7 R v Bouavong [2012] NZHC 524.
However, in combination with the rest of the Crown case (which would not change if the evidence was admitted) the evidence would simply bolster an already strong case by conclusively proving matters it would otherwise prove by inference. In that sense, His Honour considered that the evidence would not have additional probative value.
[29] Toogood J went on to consider the issue of unfair prejudice. His Honour noted that this could take many forms and is incapable of a precise or exhaustive definition. The evaluation of unfair prejudice relates ultimately to the trial Judge’s “overriding duty in every case to secure a fair trial”.8 In this context, his Honour noted the right to an effective defence protected under s 25 of the New Zealand Bill of Rights Act 1990 (especially the right to examine the witnesses for the prosecution
under subs (f)). He states as follows:
[75] Offering evidence of previous convictions in the circumstances and manner which the Crown propose would essentially deprive the defendants of their opportunity to test the evidence offered against them on essential elements of the charges. In that sense, it would deprive them of their ability to offer an effective defence of their choosing. That the convictions in this case have come as the result of guilty pleas serves to accentuate the unfair prejudice which would occur – the supposed evidence of guilt would remain untested by any Court.
[30] Toogood J later confirmed the distinction between evidence accepted by way of a guilty plea and evidence proven at trial. He considered that an inference could be drawn from a guilty plea that the Crown had a strong case, but “it could not be said that the key issues of the nature of the substance involved and the fact of supply had previously been resolved by litigation or that those facts had been established
previously to the criminal standard of beyond reasonable doubt.”9 He commented
that for a defendant, “the decision to abandon arguable defences is often the result of an exercise in risk analysis.”10
[31] His Honour finally framed the “central question” as “whether it was fair to the remaining accused for the Crown to take advantage of what was essentially a windfall benefit, from the fortuitous guilty pleas entered by the former co-accused,
in order to prove its case against the remaining accused in respect of whom the
8 At [71], citing R v List [1965] 3 All ER 710 at 711.
9 At [78].
10 At [79], citing Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 and the Criminal Procedure
Act 2001, ss 60-65.
available proof may not have been as compelling.”11 He concluded that it would be highly prejudicial to the accused to close off aspects of live issues, particularly where the strength of evidence on those issues had not been tested and determined.
[32] Toogood J’s approach was cited to the Court of Appeal in Manukau v R. Mr Manukau had been charged with sexual violation, to which he pleaded guilty, and attempting to pervert the course of justice. The latter charge was based on his and his co-offender’s actions in forging a text said to be from the victim claiming to have lied about the sexual violation. Mr Manukau wished to defend that charge by arguing that he did not commit the sexual violation to which he had pleaded guilty.
[33] The Court of Appeal accepted that a distinction between a conviction following trial and one following a guilty plea may be drawn in some circumstances, but considered that Manukau v R was not such a case. Mr Manukau had previously applied to withdraw his plea, but Judge Ingram had dismissed the application as Mr Manukau was properly represented and had entered his plea with a full understanding of the consequences; there were no threats or improper pressure; and
the defence that he proposed was “clearly and indisputably false.”12 As there was no
appeal against this decision, the Court considered that accepting the Bouavong distinction would give Mr Manukau a further opportunity to challenge the correctness of his conviction. The Court of Appeal treated the central issue as whether this was an exceptional case in which Mr Manukau should be permitted to challenge his conviction. To that extent, it reasoning is not relevant to this case.
[34] In R v Nguyen,13 an earlier decision, Priestley J excluded convictions for representative drug offending by associates of the accused as evidence that the intercepted communications between the accused and the associates related to methamphetamine. His Honour accepted that the convictions were probative, but considered this was outweighed by the risk of unfair prejudice and the right of the accused to offer an effective defence. This unfair prejudice was largely due to the generality of the purpose for which the Crown wanted to adduce the evidence – as
background information and to strengthen an inference. He considered that
11 At [82].
12 At [27] of the Court of Appeal judgment.
13 R v Nguyen HC Auckland CRI-2008-092-17198, 17 September 2010.
regardless of the strength of any jury direction, the evidence “would be tantamount to an open invitation to the jury to find the accused guilty (because of their communications with the convicted men) by virtue of that association alone.”14
[35] R v Nguyen has since been distinguished on the basis that it applied to situations in which the purpose of adducing the evidence was too broad. In R v Gui,15 the Crown applied to adduce evidence of the guilty pleas of Ms Garrity, one of the accused, to certain counts in the indictment. Counsel for Ms Garrity accepted that this admission would not undermine the right to offer an effective defence, but submitted that a jury might be inclined to find her guilty on the remaining counts
because of the convictions. Counsel for Mr Pulete, Ms Garrity’s co-accused, submitted that there was significant overlap between the counts relating to Mr Pulete and Ms Garrity that would cause significant prejudice. In particular, it would undermine Mr Pulete’s ability to put the nature of the item supplied in issue. Wylie J had no doubt that the facts evidenced by the pleas were highly relevant to the alleged offending. Following R v Walker (summarised below), His Honour admitted the evidence as part of the res gestae, the “total narrative” of the alleged offending, and as circumstantial evidence tending to prove the nature of the product being supplied. His Honour considered that “it would be irrational for Ms Garrity’s convictions to be kept from the jury, simply to preserve a defence which is contradicted by available
evidence”,16 especially as other defences were available. Wylie J distinguished R v
Nguyen on the basis that the connection between the evidence and the offending was closer, and as the offenders allegedly offended in different ways there was no risk of inferring guilt by association.
[36] The Court of Appeal in R v Goffe17 also distinguished R v Nguyen as dealing with a general purpose for admission. In R v Goffe, it was found that a conviction upon a joint charge of attempting to pervert the course of justice was admissible to prove the offender’s authorship of a letter, which was highly relevant to the existence
of a joint enterprise.
14 At [27].
15 R v Gui HC Auckland CRI-2008-044-7390, 27 April 2011.
16 At [24].
17 R v Goffe [2011] NZCA 186.
[37] In R v Walker,18 the Court of Appeal considered an appeal against a trial Judge’s direction that evidence of the appellant’s conviction for threatening to kill could be led in his trial on a charge of kidnapping. It considered that the threat to kill formed an integral part of the whole transaction and that it would be artificial for the jury not to be told of this conviction. Thus, the relevance of the evidence lay not in the fact of conviction but whether the complainant had consented to the car journey with the appellant. It was also considered relevant as to whether consent was obtained by duress and whether the appellant knew that the complainant was not consenting. The Court of Appeal held that evidence of the conviction was rightly admitted and that there was no unfair prejudice.
Analysis of the case law
[38] Examination of the cases does not help distil clear guiding principles because the cases largely turn on their own facts. This is a corollary of the fact-specific s 8 balancing exercise that is necessary in determining applications under s 49.
[39] However, two general themes are apparent. The first is that the relevance of evidence in this context exists on a spectrum; and the second, related, theme is the importance of the quality of the evidence.
[40] Regarding the first point, Courts often refer to the principle that relevant and probative evidence that strengthens the Crown’s case or weakens the defence case is not prejudicial.19 Such “prejudice” is a direct and intended consequence of the relevance and probative value of the evidence. Evidence that is of limited probative value is likely to cause unfair prejudice.20 The evidence discussed in the case law falls on a spectrum, with evidence that is relevant to the res gestae or in supporting an inference being at the less probative end. For example, as the evidence in Nguyen and Bouavong merely supported the Crown’s existing case, it was only relevant in a general sense. The balance thus tipped towards risk of unfair prejudice by excluding
the defendants from the defence of their choosing in reliance on untested evidence
18 R v Walker [2007] NZCA 558.
19 See R v Walker and R v Goffe.
20 R v Nguyen at [27].
(Bouavong) and risking the jury drawing improper inferences (Nguyen). On the other end of the spectrum, evidence that is directly relevant to proving a fact in issue is highly probative. For example, the evidence in Gui and Walker was highly relevant to proving an important aspect of the case that was directly in issue. There was no risk of unfair prejudice in the context of Gui as the evidence was of high quality and did not undermine all of the available defences; and there was no risk of unfair prejudice in Walker because excluding evidence of the conviction would have undermined the coherency of the overall narrative.
[41] The second general theme is the importance of the quality of the evidence. A valid distinction may be drawn between a conviction entered after trial and one entered upon a guilty plea. The former is only admitted after a rigorous screening process21 and is then required to be proved beyond a reasonable doubt. The latter may be “the result of an exercise in risk analysis.”22 The Court of Appeal has noted that such inferences may be undermined where the guilty plea was entered on the
advice of counsel, the defendant was aware of the consequences of the entry of the plea, there were no threats or improper pressure, and the alternative factual scenario is clearly false.23 However, the Court made these comments in the context of a Crown application to bring evidence of an accused’s guilty plea against him (as opposed to a co-accused), where the accused sought to argue that he did not commit the offence to which he had pleaded guilty. Not only do different considerations apply where an accused intends to dispute the facts to which a co-accused pleaded guilty, but information relating to the context in which the plea was entered is unlikely to be known where a co-accused has pleaded guilty before trial.
[42] The case law makes clear that the starting point is the plain language of s
49.24 Under subs (1), evidence may be admitted only if it is “not excluded by any other provision of this Act”. This creates a “gateway to introducing evidence of
conviction[s]” that is subject to the application of the other provisions of the Act and,
21 See Priestley J’s comment in R v Nguyen at [18] that “the criminal law is not based on broad perceptions, suspicions, or probabilities. Well established legal canons and matters of fairness result in a criminal trial taking place in a tightly controlled cockpit, not in a seething public arena.”
22 R v Bouavong at [79].
23 Manukau v R at [27].
24 R v Goffe at [20].
in particular, the s 8(1) balancing exercise.25 This approach is consistent with the mandatory language of the s 8(1) exclusion, as well as its clear priority over any other provisions (“In any proceeding…”). The primary issue is the relevance and probative value of the evidence, and whether this is outweighed by the risk of unfair prejudice to the proceeding and the right to offer an effective defence. Here, if the evidence of the guilty pleas of the co-conspirators is more probative than unfairly prejudicial, s 49 provides a specific mechanism by which they may be admitted.
[43] This interpretation directly reflects the driving purpose of s 49 as enunciated by the Law Commission.26 The Commission focussed on the interrelated policies of saving time and expense in criminal trials (not a significant factor in this case), making relevant and probative information available and recognising the gravity of a conviction. Evidence that is excluded under s 8 is generally deemed insufficiently probative so as to be not “worth the price to be paid by admitting it”.27 Such evidence does not meet the Law Commission’s focus on admitting “highly probative” evidence.
Discussion
[44] The admission by Mr Naupoto through his guilty plea to Count 1 in the indictment establishes that he was part of a conspiracy to import a Class A controlled drug. It does not establish those matters in respect of Mr Tanginoa.
[45] Similarly, the admission by Mr Wolfgramm through his guilty plea to Count 2 in the indictment establishes that he was part of a conspiracy to supply a Class A controlled drug. It does not establish those matters in respect of Messrs Afeaki and/or Mafi.
[46] The facility provided by s 49 for the Crown to admit evidence of a conviction as conclusive proof that the person committed the offence cannot be utilised if it will
25 R v Nguyen at [19]. See also R v Bouavong at [60] and [76] and R v Walker at [8]-[9].
26 R v Walker at [11]-[12], cited in R v Goffe at [20]-[21].
27 Bain v R [2009] NZSC 16; [2010] 1 NZLR 1 at [39], citing Australian Law Reform Commission
Interim Report on Evidence (ALRC 26, 1985) at [315].
have an unfairly prejudicial effect on the proceeding and, in particular, the right of an accused person to offer an effective defence.
[47] The entry of a guilty plea by an accused is his confession of guilt to the offence charged. In the case of each of Mr Naupoto and Mr Wolfgramm this involves admission that the conspiracy respectively charged existed, and that he was party to it. But the evidence that establishes the essential elements of the charges against them has not been tested at trial and has not been admitted by the three accused. They are entitled to offer an effective defence which challenges both that a conspiracy has been established, and, if so, that the accused in question was a party to it.
[48] The evidence in this case relating to the alleged conspiracies is detailed and complex. The Crown’s case relies principally on the intercepted communications. Many of the intercepted communications involve Mr Naupoto, Mr Tanginoa and Mr Wolfgramm. To a much more limited extent they involve Mr Afeaki and Mr Mafi. But while there is evidence of numerous communications between Mr Afeaki and Mr Mafi, neither appears to have communicated with Mr Naupoto or Mr Tanginoa, and there is no evidence of Mr Mafi communicating with Mr Wolfgramm, though Mr Afeaki frequently did.
[49] I consider there is a real risk, were the evidence of the convictions of Mr Naupoto and Mr Wolfgramm to be admitted, that the jury may determine the guilt of the accused on the basis of their general association with, respectively, Mr Naupoto and Mr Wolfgramm. Judicial direction is unlikely to provide a clear pathway for the jury that would ensure this risk is overcome. As Priestley J said in
Nguyen:28
Regardless of the strength of any direction I would give, the evidence would be tantamount to an open invitation to the jury to find the accused guilty (because of their communications with the convicted men) by virtue of that association alone.
[50] In essence the position is:
28 R v Nguyen at [27].
(a) The Crown charged five persons in relation to two separate conspiracies in two separate charges;
(b)One of the persons charged in each Count has pleaded guilty to that charge and has been convicted;
(c) The remaining three accused have pleaded not guilty to the charges against them and the Crown must prove the relevant charge against each of them by proving the essential elements as set out at paragraphs [9]-[12] above.
[51] In the trials of Messrs Tanginoa, Afeaki and Mafi, it will be for the jury to determine on the basis of all the evidence whether the Crown has proved in respect of each of them the conspiracy alleged, and that the accused in question was a party to that conspiracy.
Conclusion
[52] For these reasons I dismissed the Crown’s application to admit as evidence the convictions of Messrs Naupoto and Wolfgramm in the trial of the three accused.
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