R v Tanginoa no.4

[2012] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-015420 [2012] NZHC 2965

THE QUEEN

v

PETER LAWRENCE TANGINOA DOUGLAS DAVID AFEAKI

DAVID CHARLES STEPHEN JOSEPH MAFI

Hearing:         6 and 7 November 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

Ruling:           8 November 2012

RULING NO.4 OF POTTER J

[On Crown’s Chronology of Events]

This judgment was delivered by Justice Potter on

8 November 2012 at 4.00 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 [8 November 2012]

Introduction

[1]      The defence object to the Crown’s proposal to provide to the jury and refer in closing to a chronology of events.   This document, as presented by the Crown, summarises uncontested evidence of events the Crown submits are relevant to the charges against the accused, in chronological sequence between 9 June 2011 and

4 September 2011 (“the relevant period”). The parties seek a ruling from the Court.

Background

[2]      Peter Tanginoa is charged with conspiracy to import a Class A drug.  Douglas

Afeaki and David Mafi are charged jointly with conspiring to supply a Class A drug.

[3]      In  essence,  the  Crown  case  alleges  a  conspiracy  to  import  a  significant quantity of methamphetamine from Tonga to New Zealand and a conspiracy to supply the imported drugs in New Zealand.  The alleged parties to the conspiracies were victims of a scam by persons in Tonga.  When the police closed their operation “Tango” and entered relevant premises in Tonga, it was found there were no drugs, no arrangements to convey drugs to New Zealand by boat and no female hostage, as the Tongan associates had led the alleged conspirators to believe.

[4]      At the start of the trial on Monday 29 October 2012, Mr Johnstone, for the Crown advised that a copy of the Crown’s proposed chronology had been provided to defence counsel and that it would be updated after evidence had been adduced.  A copy was also provided to the Court.  Def3ence counsel advised they objected to use of the chronology.

[5]      At about 7.30 p.m. on 5 November 2012, shortly before the Crown case concluded,  a  revised  version  of  the  proposed  chronology  was  sent  to  defence counsel.  It included entries to update the information in the original chronology, and corrections where appropriate.

[6]      As part of the Crown case, numerous intercepted communications have been given in evidence.   Three volumes containing the text of these communications, translated where necessary from the Tongan language, have been produced in evidence.   Each volume has an index.   Volume 1 contains 260 pages, each page devoted to a particular intercepted communication.   Volume 2 contains 275 pages and volume 3, 289 pages.  A number of additional pages containing the detail and text of communications referred to in the course of evidence, particularly in cross- examination, were produced by the Crown as an exhibit for insertion in the three volumes.   Data obtained under search warrant from Vodafone evidences other telephone communications, detailed in a three page schedule.

The proposed chronology

[7]      The chronology includes details of the intercepted communications in the relevant period with a summary of the conversation under the heading “Synopsis”. In the case of text messages the content of the message is given in full.  The parties who  have  been  charged  (including  Mr  Naupoto  and  Mr Wolfgramm  who  have entered guilty pleas) are identified with colour coding, telephone numbers are attributed to the communicating parties and the dates and times of intercepted conversations  and  text  messages  are  detailed.     The  document  also  provides references  to  page numbers in  the three volumes  which  contain  the intercepted communications.

Parties’ positions

The Crown

[8]      Mr Johnstone explained that the proposed chronology is designed to assist the jury in following the evidence that will be referred to in his closing address.   He referred  to  the  judgment  in  R  v  Harriman[1]   and  a  ruling  of  Toogood J  in  R  v

[1] R v Harriman HC Auckland CRI-2005-004-014921, 15 December 2006.

Bouavong.[2]    He  submitted  that  these  authorities  and  the  cases  referred  to  in

[2] R v Bouavong HC Auckland CRI-2010-004-12426, 8 March 2012, Ruling No.14.

Harriman support the proposition that the use of materials to summarise or schedule

evidence that could otherwise be complex for the jury to understand, is appropriate, subject to:

(a)       The presentation being fair;  and

(b)      The materials not assuming disproportionate importance in the trial.

[9]      He submitted that the chronology would provide a useful reference point for oral argument, and it was then for counsel to make submissions about evidence detailed in the chronology and any other evidence in the case, and the inferences available from it.

[10]     He noted that in his ruling Toogood J referred to s 133 of the Evidence Act

2006.   He submitted that s 133, which provides for a summary of evidence being given to the jury at the discretion of the trial Judge in place of voluminous material, dealt with a slightly different situation.   Here, all the evidence referred to in the proposed chronology is before the jury.

The Defence

[11]     The position for the defence was presented by Mr Bradford and Ms Pecotic. They strongly objected to use of the chronology.   They said that receipt of the revised version of the chronology at about 7.30 p.m. on 5 November 2012 left them inadequate time to peruse and check it against the original version and subsequent developments at trial.  They noted that defence counsel do not have juniors available to them.

[12]     Counsel submitted:

(a)       The chronology presents the Crown’s opinion of the case because the intercepted conversations have been summarised by Crown counsel.

(b)There is a risk the jury will rely on the summarised version of the conversations  as  presented  in  the chronology rather than referring back to the full texts included in the transcripts.

(c)      The evidence of the intercepted communications is fully before the jury in the three volumes of transcripts.  There is no requirement for the chronology.

(d)The chronology is not limited to chronological information.   It is in effect a re-statement of the Crown case and creates an imbalance.

(e)      The colour coding for participants other than the accused gives inappropriate emphasis to participants the Crown considers are important.

(f)       The proposed chronology is not a complete document, but rather a

“snap-shot”.

(g)The reference to page numbers in the three volumes of transcripts is unhelpful because the volumes are not identified.

(h)This  is  not  a  complicated  case  there  are  only  three  volumes  of transcripts.  The jury can refer to these volumes;  they do not need the proposed chronology to follow the evidence.

Authorities

[13]     In  the  judgment  in  R  v  Harriman[3]   referred  to  by  the  Crown,  Stevens J

considered the Court of Appeal judgments in R v Donaldson[4]  and R v Moroney.[5]

Both those judgments considered the use of powerpoint presentations by the Crown.

[3] R v Harriman above n 1.

[4] R v Donaldson CA80/04, 8 December 2004.

[5] R v Moroney CA448/92, 26 May 1993.

[14]     In Harriman, reference was made to the 2003 Guide to Criminal Practice[6]

[6] At [13]. Published by the Ministry of Justice.

which under the heading Use of Aids to Understanding Evidence, states:

46.      Written and visual aids should be made available to the jury unless there  is  good  reason  not to  do  so.   The  prosecution  should  disclose  to Defence a reasonable time before trial those written and visual aids it intends to use, and Defence should, within a reasonable time raise any objections to it.

47.      Written and visual aids can be divided into two categories:

(i)        Those which are themselves going to be produced as an exhibit by a witness, for example a diagram prepared by an expert witness to illustrate a point, or a genealogical table. For these to be produced, an evidential foundation must be laid in the normal way, or else they may be put in by consent.

(ii)      Those which are not themselves part of the evidence, but summarise or analyse the evidence for the jury, or otherwise aid their understanding. They include copies of the indictment, lists of witnesses, plain English definitions of charges (all of which are included in the jury booklet, see paragraph 42 above); chronologies, and check-lists of issues.

48.      The second category can only be given to the jury with the consent of the trial Judge, and should be copied to the other side before judicial consent is sought, so that they have the chance to comment and if necessary object. Such documents must be accurate, complete, and clear.

[15]     In  Harriman,[7]   Stevens J  cited  from  the  judgment  of William Young J  in

[7] Above n 1 at [14].

Donaldson:[8]

[8] At [47]-[50].

We have no wish to discourage counsel from using visual presentations. The entirely oral nature of the traditional criminal trial process is anachronistic given the range of communication aids which are now available and are deployed in virtually all other comparable fields of activity.   Counsel, witnesses and judges are required to convey information to juries and it is sensible  that  they  do  so  in  the  most  effective  manner.    There  are  no immutable rules as to the way in which material is put before juries and there is obviously no principle of law which prevents the use of powerpoint presentations.

On the other hand, there are significant contextual considerations.  Effective communication is appropriate if what is conveyed is accurate and fair.  But judges have a legitimate screening role in relation to new technologies and they must be astute to prevent the effective communication of inaccurate and unfair arguments.  As well, there are equality of arms issues which warrant attention.  In most cases, prosecutors (who usually have the infrastructure of

the state behind them) are better positioned than the defence to resort to visual presentation techniques.  This another reason why a judicial screening role is important and why visual presentations by the prosecution should be factual or, to the extent to which they refer to disputed considerations and arguments,  do  so  in  terms  which  make  it  clear  that  there  is  a  defence argument to the contrary.

…

Many of these technologies (or variations of them) are already utilised in civil and criminal trials.   Inevitably there will continue to be further adaptation of court processes to incorporate technological development.  It is inevitable that such adaptations will lead to debate and perhaps difficulties and such difficulties will be exacerbated if innovation occurs in an ad hoc and unsystematic way.

[16]     In Moroney, the principal objection taken by the defence to the table of evidence proposed by the Crown was that, because of the incorporation of so much factual material into the proposed tabulation, it effectively reduced to writing the primary facts on which the Crown relied, and the document thus assumed disproportionate importance at the trial.  Casey J, giving the judgment of the Court, stated:[9]

[9] R v Moroney, above n 5, at 9.

The principle underlying these cases is we think clear.   It is simply that where the complexity of the particular case warrants, it may be permissible to  allow  any  party  to  use  methods  in  addition  to  oral  presentation  and exhibits, to put forward its evidence or arguments to the jury.

Since the decision in Menzies,[10] where the nature of the case warrants the use of   summaries,   schedules   and   flow-charts   have   been   commonplace. Normally  however  they  are  simply  a  summary  of  evidence  given,  re- arranged or drawn together in a way that makes its import more readily comprehended.  Such material should be accompanied by directions from the Judge making it clear that the question whether any particular evidence is accepted remains a matter for the jury, and that the document itself is not evidence.  Equally, it is of the essence that the document should accurately accord with the evidence, and be fair in its presentation.

[10] R v Menzies [1982] 1 NZLR 40.

…

The submission of non-evidential material to a jury for its assistance – for example, excerpts from statutes – is in the discretion of the Judge.  Material supplementary to counsel’s addresses may be permitted, and we envisage that as technology becomes more accessible, in suitable cases counsel may seek to use the type of facilities, such as transparencies and projectors, now commonly deployed at lectures and seminars.   The tradition of oral presentation evolved in an era when cases of the complexity of the present

kind  were  largely  unknown,  and  in  any  event  the  average  standard  of education of jurors would not then have encouraged any different course.

[17]     In submissions Ms Pecotic referred particularly to the requirement in the

2003 Guide to Criminal Practice for the prosecution to disclose to the defence the written and visual aids intended to be used within a reasonable time, to enable the defence to raise any objections to it.   Both counsel emphasised the “equality of arms” issues referred to by William Young J in Donaldson.

Directions

[18]     Having  received  submissions  from  counsel  and  discussed  with  them  the various issues raised, I indicated that in accordance with the principles in Moroney, Donaldson and Harriman, I considered that there was no rational or reasonable basis upon which the proposed chronology (amended in certain respects) should not be made available to the jury.  It would enable the jury to more readily comprehend and follow  the  detailed  material  presented  in  evidence.     I  considered  that,  with appropriate amendments, the proposed chronology would present an accurate and fair summary and would not assume disproportionate importance in the trial.

[19]     Accordingly, I made the following directions:

(a)       The  proposed  chronology  was  to  be  amended  in  the  following respects:

(i)The  summaries  of  the  intercepted  telephone  conversations should be deleted and reference should simply be made to the volume and page number where the relevant transcription appears.   (Mr Johnstone suggested  this course of action in response to defence submissions.   I consider it meets the defence objection that the summary of these conversations is the Crown’s version of the conversation which appears in full in the transcripts.)   The full text of text messages should be retained.

the  volume  (as  well  as  the  page)  in  which  the  relevant transcription appears.

(iii)At the top of each page of the chronology the relevant columns are to be identified (as appears on the first page of the original chronology)

(iv)The red and pink colouring that identifies entries subsequent to the original chronology is to be removed.

(v)      The  description  “Vodafone  data”  is  to  be  substituted  for

“Warrant” and is not to be colour coded.

(vi)The dates of birth of Mr Tanginoa and Mr Naupoto are to be removed from the entries relating to travel at the start of the chronology.

(vii)Details of the evidence obtained pursuant to search warrants is to be deleted following entries referring to the execution of search warrants.

(viii)The  document  is  to  be  entitled  “Crown’s  Chronology  of Events”, to negate any inference that the chronology has the agreement of the defence.

(b)The Crown was promptly to provide hard copies of the chronology to defence counsel, as electronic versions did not adequately replicate the colour coding.

(c)      The Crown was to provide to any defence counsel who seeks it a filtered version of the chronology as it relates to the accused in question.

and pink inserted since the original version of the chronology.

Conclusion

[20]     The Crown’s case is largely circumstantial.  No doubt counsel for all parties will wish to draw the jury’s attention to inferences which, counsel submit, are available on the basis of the evidence.  The evidence referred to the chronology is uncontested.  I consider the chronology, amended as I have directed, will present an accurate and  fair  picture to  the jury and  presents  no  material  prejudice for the defence.  Indeed, it could prove to be helpful.

[21]     I  consider  that  in  exercise  of  the  Court’s  gate-keeper  role,  most  of  the objections fairly raised by the defence can be adequately and appropriately met by these directions.

[22]     While I have some sympathy for defence counsel on the “equality of arms” issue,  I  consider  the  Crown  has  proceeded  fairly,  and  in  accordance  with  the guidance in the 2003 Guide to Criminal Practice, by making available to defence at the outset of the trial the proposed chronology and in highlighting additions and changes to it.   The Crown has been co-operative in providing versions of the chronology in formats which will assist defence counsel.

Outcome and Ruling

[23]     On the morning of 7 November 2012, I was able to consider with counsel the amended chronology incorporating changes in accordance with the above directions. I suggested to the Crown that a coversheet should be attached to the chronology explaining to the jury the nature of the information that appears under the heading “Synopsis”.  Mr Johnstone said this would be done.

[24]     On the above basis I ruled that the Crown is permitted to use the chronology of events during the closing address by Crown counsel and to provide copies to the jury.

chronology or its use are considered necessary.