R v Wellington
[2018] NZHC 2080
•15 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-044-4279
[2018] NZHC 2080
THE QUEEN v
CHEVONNE WELLINGTON RIKI WELLINGTON
Hearing: 27 June to 11 July 2018 Appearances:
B D Tantrum and N R Webby for Crown
A J Maxwell-Scott and S R Lack for C Wellington M W Ryan and M Taylor-Cyphers for R Wellington
Judgment:
15 August 2018
JUDGMENT NO 4 OF PALMER J
(Co-conspirators, co-defendants and particulars)
This judgment is delivered by me on 15 August 2018 at 11.00 am pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Counsel/Solicitors:
Meredith Connell, Auckland
A J Maxwell-Scott and S R Lack, Barristers, AucklandM W Ryan and M Taylor-Cyphers, Barristers, Auckland & Dunedin
R v WELLINGTON No 4 [2018] NZHC 2080 [15 August 2018]
Summary
[1] Mr Riki Wellington and Ms Chevonne Wellington were charged with, and convicted of, possession of methamphetamine for supply, and supply of methamphetamine. This judgment outlines the reasons for three rulings I made during the trial:
(a)Ms Wellington objected to the admissibility of four intercepted communications as hearsay statements. I ruled three of them were not hearsay as they were not relied upon for the proof of their contents and the other was admissible under the co-conspirators’ exception to the inadmissibility of hearsay statements in s 22A of the Evidence Act 2006 (the Act).
(b)Mr Wellington objected to the admissibility of 66 pages of intercepted communications as statements by co-defendants under s 27 of the Act. I ruled them admissible. My reasons are:
(i)the communications were admitted by consent under s 9 and their admission was not unfairly prejudicial and did not render the trial unfair;
(ii)in any case, although communications were by “co- defendants”, who not compellable to give evidence, they were not “statements” for the purposes of s 27; or
(iii)if they were statements for the purposes of s 27, and even if they were not hearsay statements, the communications may have been admissible under the co-conspirators’ rule, s 22A, since there is reasonable independent evidence Mr Wellington was a member of a joint enterprise to commit an unlawful act and the statements were made in furtherance of the joint enterprise.
(c)In response to a jury question, during their deliberation, I directed to the jury as to proof of a particular circumstance. I directed, to find Ms
Wellington guilty of supplying methamphetamine on one charge, they would have to find she supplied the drugs to Mr Riki Wellington in particular, since that had been the Crown’s case.
The context of the trial
The charges
[2] Ms Wellington of Auckland, and Mr Wellington of Christchurch, are brother and sister. At the start of trial, they faced 13 charges between them of either supplying methamphetamine or possessing methamphetamine for supply on five dates in October 2016. The evidence was largely circumstantial, including intercepted phone calls and text messages, surveillance evidence, an agreed statement of facts and convictions of other defendants.
[3] The Wellingtons were originally scheduled to be tried with other defendants but they pleaded guilty before trial: Ms F; Mr Callan Hughes; Mr Kane McArley; Mr Henry Robati; and Ms Arna Smith.1 The agreed statement of facts in the trial set out the convictions of those defendants (except that of Ms Smith) as well as offending by Mr Le’Ca and Mr Uputaua who were to be tried separately and pleaded guilty earlier in 2018. It also detailed observations by Police carrying out surveillance activities from 29 September 2016.
The trial(s)
[4] The trial first started on Thursday 21 June 2018 (the first trial) when the jury was empanelled, though one juror had to be discharged that day. The Crown’s opening of its case was delayed until Monday 25 June 2018 in order to allow the parties to recalibrate their cases in light of the lead defendant, Ms F, pleading guilty on Wednesday 20 June 2018.
[5] On Monday 25 June 2018, the Crown sought to lead evidence of intercepted communications from 27 September 2016 until 16 November 2016 in a transcript booklet of 609 pages (the Booklet). The Booklet stated, as matters of fact, that various
1 Ms F’s identity is suppressed for fair trial reasons in relation to a further upcoming trial.
texts and phone calls were made by Mr Wellington. By contrast, phone numbers attributed by the Crown to Ms Wellington were marked only as attributed to her. Ms Wellington did not dispute the Crown’s attribution but Mr Wellington did. Mr Ryan objected on his behalf and I ruled the Booklet would have to be revised and reprinted so it did not attribute phone numbers to Mr Wellington as a matter of fact when that was a matter of dispute. The Booklet was revised and reprinted and we reconvened on the afternoon of Tuesday 26 June 2018. But, on Tuesday 26 June 2018, I discharged the whole jury following discharge of a second juror.
[6] On Wednesday 27 June 2018, the trial started again with a new jury (the second trial). The Crown commenced its case with evidence by Detective Sergeant Beal, which included him reading texts and the Court hearing recordings of phone calls from the revised Booklet. I gave leave for copies of the Booklet (revised in accordance with my ruling on Monday 25 June 2018) to be provided to the jury during the Crown’s opening, by consent.2 The Booklet was produced as Exhibit 2 during Detective Sergeant Beal’s evidence.3
[7] On 5 July 2018, I dismissed one of the charges of supplying methamphetamine against Ms Wellington.4 The second trial concluded on Wednesday 11 July 2018. Ms Wellington was found guilty and convicted of all four remaining charges she faced, one of possession for supply and three of supplying methamphetamine. Mr Wellington was found guilty of six charges, four of possession of methamphetamine for supply and two of supplying methamphetamine. He was acquitted on one charge of supplying methamphetamine and the jury could not give either a unanimous or majority verdict on another charge of supplying methamphetamine.
Co-conspirators’ and co-defendants’ evidential issues
Co-conspirators’ pre-trial ruling
[8] Hearsay evidence is generally inadmissible. Before trial, the Crown applied for 81 intercepted text and telephone calls from 3 October 2016 onwards to be
2 Bench Note No 1 (v2) of 27 June 2018 at [2].
3 At [4](b).
4 R v Wellington No 3 [2018] NZHC 1645.
admitted as evidence under the co-conspirators’ exception to the inadmissibility of hearsay evidence. This exception is reflected in s 22A of the Act and discussed further below. Mr Wellington opposed the application. Ms Wellington did not.
[9] The application was made on 19 April and heard on 24 May 2018. On 28 May 2018 Downs J issued judgment.5 He decided 73 of those communications were admissible as there was reasonable evidence Mr Wellington was a member of an enterprise to deal methamphetamine and s 22A was clearly satisfied.6 Downs J noted no other objection was offered to those communications.7 He emphasised s 22A is an exception to the rule excluding hearsay statements.8 Evidence is not a hearsay statement if it is not a statement or is not relied upon for the truth of its contents.9
[10] The remaining eight communications were after 2 November 2016, the date Mr Wellington was arrested. There was insufficient material before Downs J to determine whether those communications were made to advance the joint enterprise.10 Downs J also pointed out that statements made after a defendant ceases to be a member of the enterprise are not admissible under s 22A.11
Issues at trial
[11] On Thursday 28 June 2018, the second day of the second trial, Mr Ryan foreshadowed the co-conspirators’ rule issues left unresolved by Downs J regarding the eight communications would need to be addressed. I indicated we would likely adjourn then and gave leave for written submissions to be filed.12 However, on Friday 29 June 2018, the Crown and Mr Wellington advised they had agreed any third-party communications after Mr Wellington was arrested, in which he did not participate, were not admissible against him.13 I directed the jury accordingly, at the time those calls were played and again in summing up.
5 R v Wellington [2018] NZHC 1199.
6 At [25].
7 At [26].
8 At [6]–[10].
9 At [10]
10 At [31].
11 At [31].
12 At [2].
13 R v Wellington Bench Note No 3 of 29 June 2018 at [2].
[12] On Thursday 5 July 2018, before the defendants’ elections on calling evidence, I asked for confirmation from counsel of what evidence they understood to be admissible against one defendant but not the other. It was agreed the communications from 2 November 2016 were admissible against Ms Wellington but not Mr Wellington. However Mr Ryan, for Mr Wellington, and Mr Lack, for Ms Wellington, submitted there was also an issue about the point at which there was reasonable evidence their clients became members of the joint enterprise for the purposes of s 22A of the Act. This developed into objections to the admissibility of communications on the basis of the co-conspirators’ rule in s 22A as well as, in relation to Mr Wellington, on the basis they were statements by co-defendants under s 27 of the Act.
[13] I inquired as to whether the Crown had applied for these communications to be admitted as evidence. On 5 July 2018 Mr Tantrum advised the Crown’s application on 19 April 2018 had done so in relation to all defendants but only Mr Wellington had indicated his opposition to that application. That was the subject of the judgment by Downs J on 28 May 2018.14 On reviewing its application and submissions overnight, on 6 July 2018 the Crown filed a memorandum confirming 81 communications from 3 October 2016 (from page 55 of the Booklet) until 2 November 2016 had been the subject of that application and ruled admissible. The communications after 2 November 2016 had been agreed to be inadmissible against Mr Wellington. So the communications between 27 September 2016 and 2 October 2016 (pages one to 54) had not been the subject of a ruling. And there had been no ruling as to admissibility against Ms Wellington because she had not opposed the Crown’s application.
[14] On Thursday 5 and Friday 6 July 2018 I heard submissions and ruled the communications were admissible. I indicated I would provide my reasons later.
[15]On 9 July 2018, in summing up the case for the jury, I stated, relevantly:15
Most of the calls and texts are evidence against both defendants. That does not mean they are all equally relevant to each defendant or each charge. What they mean is up to you. And, although the law allows you to consider them as evidence, you have not heard from Ms F, Mr Hughes or Mr McArley directly. What they meant in those communications has not been tested in court and is disputed in this trial. So bear that in mind, and be cautious about their
14 R v Wellington, above n 5.
15 Summing up of 9 July 2018 at [16].
meaning, when working out what to make of the texts and calls. I should also remind you of what I said during the trial: the calls and texts after Mr Wellington was arrested on the 2nd November 2016 are not admissible evidence against him, unless he participated in them. You must not take them into account when you are making decisions about the charges against him.
Issue 1: Co-conspirators’ exception to inadmissibility of hearsay
Law of co-conspirators’ exception to inadmissibility of hearsay
[16]Section 4 of the Act contains these definitions:
statement means—
(a)a spoken or written assertion by a person of any matter; or
(b)non-verbal conduct of a person that is intended by that person as an assertion of any matter
and
Hearsay statement means a statement that—
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents
[17] In R v Preston the Court of Appeal discussed the application of the hearsay rule to “implied statements”, drawing on Simon France J’s analysis in R v Holtham:16
The Evidence Act defines “statement” as including a “spoken or written assertion by a person of any matter”. An assertion requires an intention to assert. If the speaker intended to convey the meaning relied upon, the statement falls within the definition. If the speaker did not so intend but reliance is nevertheless sought to be placed upon the inferences sought to be drawn from the statement, the statement will fall outside the definition.
[18] Similarly, if a communication is a statement but is not offered in evidence to prove the truth of its contents, it is not hearsay according to paragraph (b) of the definition. So if a statement is offered as background contextual evidence, but not to prove the truth of its contents, it is not hearsay.17 And in R v Qiu the Supreme Court observed some statements will be offered in evidence, not to prove the truth of their
16 Preston v R [2016] NZCA 568, [2017] 2 NZLR 358 at [43] (footnotes omitted), citing R v Holtham
[2008] 2 NZLR 759 (HC) at [44].
17 Singh v R [2017] NZCA 136 at [91].
contents but to prove the fact they were said, which it characterised as “verbal acts”.18 There, evidence by the complainant of coincidences (of threats, their nature, timing and monetary objective), supporting an inference the appellant and others were acting in a joint enterprise, was ruled to be evidence of verbal acts, not hearsay statements, where the purpose was not to prove the truth of the assertions.19 I say more about the difference between implied statements and verbal acts in relation to the law of co- defendants’ statements in issue two.
[19] Subpart 1 of part 2 of the Evidence Act 2006, under the heading “Hearsay evidence”, provides, relevantly:
17Hearsay rule
A hearsay statement is not admissible except—
(a)as provided by this subpart or by the provisions of any other Act; or
(b)in cases where—
(i)this Act provides that this subpart does not apply; and
(ii)the hearsay statement is relevant and not otherwise inadmissible under this Act.
18General admissibility of hearsay
(1)A hearsay statement is admissible in any proceeding if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)either—
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2)This section is subject to sections 20 and 22.
18 R v Qiu [2007] NZSC 52, [2008] 1 NZLR 1 at [14].
19 At [14]–[15].
[20] If a hearsay statement is admissible under s 18, it will still need to be relevant, and its probative value must outweigh its unfairly prejudicial effect under ss 7 and 8.20 Section 22 requires notice of hearsay in criminal proceedings. More importantly, in this case, s 22A provides:
22A Admissibility of hearsay statement against defendant
In a criminal proceeding, a hearsay statement is admissible against a defendant if—
(a)there is reasonable evidence of a conspiracy or joint enterprise; and
(b)there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and
(c)the hearsay statement was made in furtherance of the conspiracy or joint enterprise.
[21] As stated by the Court of Appeal in R v Messenger, the rationale for the “co- conspirators’ exception” to hearsay, subsequently codified in s 22A, “is that the joint enterprise to commit a crime is considered as implying an authority to each of the members of that enterprise to act or speak in furtherance of the common purpose on behalf of the others”.21 The Court of Appeal stated:
(a)The joint enterprise must be shown to exist without the use of hearsay evidence, but statements by other persons about what they are intending to do can be led as evidence as to their state of mind (rather than as hearsay) and therefore as facts from which the existence of agreement to engage in a joint enterprise may be inferred.22 The Crown does not have to establish all the detail of the joint enterprise, but, in general terms, what those involved had the common intention of achieving.23
(b)A defendant’s membership of a joint enterprise cannot be shown by reference to what the others have said about the defendant in his or her absence but must be proven by way of independent evidence which shows at least the essential matters which constitute the joint
20 R v Preston, above n 16, at [67].
21 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [10].
22 At [13], citing R v Morris (Lee) [2001] 3 NZLR 759 at [17].
23 At [14] citing R v Morris (Lee), above n 22, at [15], [20] and [26].
enterprises and that, on the facts known to the defendant, it is unlawful.24 The defendant does not need to know the identity of all the parties to the enterprise.25
(c)The requirement that statements must be made for the purpose of furtherance of the joint enterprise means statements made after a defendant has ceased to be a member of the joint enterprise are not admissible against him or her.26 However, a statement by a co- conspirator before a person joined the enterprise may be admitted “to prove the origin, character and object of the conspiracy but not the person’s participation in the conspiracy”.27 The person joining the enterprise is taken as impliedly ratifying the steps already in furthering it.28 New Zealand courts have taken a “reasonably broad approach” to what communications are intended to advance a common design.29
[22] There is a complicated legislative history to s 22A which I do not rehearse in detail but is usefully outlined in a recent Law Commission report.30 In brief, after two phases of uncertainty after the Act’s enactment in 2006, s 22A was inserted in 2016 to codify the Court of Appeal’s approach to the co-conspirators’ exception to the inadmissibility of hearsay statements in Messenger.
Submissions on co-conspirators’ exception to inadmissibility of hearsay
[23] Mr Lack, for Ms Wellington, submitted any communications prior to the first communication involving Ms Wellington,31 could not be admissible under the co- conspirator’s rule. That captured four communications Mr Lack submitted were not admissible on the basis of the co-conspirators’ rule under s 22A.32 One of those
24 At [18]–[19].
25 At [19].
26 At [20]. An exception to this is where a statement is for the purposes of keeping the conspirator informed about what is going on so as to ensure the conspiracy is able to proceed on its course. See also Kayrouz v R [2014] NZCA 139 at [37].
27 At [21].
28 At [21].
29 Kayrouz v R, above n 26 at [37].
30 Law Commission Second Review of the Evidence Act 2006 (NZLC IP42, 2018) at [14.3]–[14.9].
31 Exhibit 2, Booklet at 79.
32 Booklet at 25, 75, 77 and 78.
communications was a phone conversation on 30 September 2016. The other three were a phone conversation and two texts on 4 October 2016. Mr Lack submitted the phone conversation at 9.06 am on Tuesday 4 October 2016, was relied upon by the Crown for the truth of its contents.33 In it, a person the Crown alleged was Mr Wellington said his “sis” wanted to catch up with Mr Hughes.
[24] Mr Tantrum submitted there was evidence of an already established relationship between Ms Wellington and Mr Hughes in the Tuesday 4 October communication. Mr Tantrum also submitted background communications are relevant and admissible evidence in any case and no communications engaged the exception to the hearsay rule for co-conspirators under s 22A. Mr Tantrum submitted the Crown did not rely on any of the four identified communications for the truth of their contents so they were not hearsay and therefore not admissible under s 22A.
Ruling on co-conspirators’ exception to inadmissibility of hearsay
[25] Counsel for Ms Wellington had not objected to these communications before the trial, when the Crown made its application which included the last three of the four communications objected to. Neither had they objected when the communications were led in evidence by the Crown. I conclude below they were admitted by consent. At the time the objection arose at trial however, I considered its merits in terms of admissibility under s 22A.
[26] I considered the communications on 30 September 2016 and the two texts on 4 October 2016 were not relied upon by the Crown for the proof of their contents. Accordingly, on Thursday 5 July 2018, I ruled they were not hearsay and the co- conspirators’ exception was not applicable.34 I considered statements in the 4 October 2016 telephone communication were being relied upon for the truth of their contents. But I was satisfied there was reasonable evidence Ms Wellington was a member of the joint enterprise by that date, 4 October 2018. So the statements in that call were admissible under s 22A. That was based on the content of that telephone conversation and on the content of Ms Wellington’s text exchanges and phone conversations with
33 Booklet at 75.
34 Booklet at 25, 77, 78. (At [12], Bench Note No 7 of 6 July 2018 mistakenly described these as at 25, 75 and 78).
Mr Hughes later that day,35 one of which arranged a meeting at “the same place as last time”.36
Issue 2: Co-defendants’ statements
Law of admissibility of co-defendants’ statements
[27] At common law, a defendant’s out-of-court statement was inadmissible against a co-defendant as hearsay. Section 27 of the Act preserves the common law rule of the inadmissibility of co-defendants’ statements with a significant exception, using the co-conspirators’ rule in s 22A:
27 Defendants’ statements offered by prosecution
(1)Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.
(2)However, evidence offered under subsection (1) is not admissible against that defendant if it is excluded under section 28, 29, or 30.
(3)Subpart 1 (hearsay evidence) except section 22A, subpart 2 (opinion evidence and expert evidence), and section 35 (previous consistent statements rule) do not apply to evidence offered under subsection (1).
[28] To be caught by s 27, evidence must be a “statement” with the same definition canvassed above in issue one. As the Court of Appeal found in McKenzie v R, also relying on R v Holtham, the essence of the definition of a “statement” is “the intention by the author to assert something”.37 It found, there:38
The Crown’s contention that Mr McKenzie intended and knew his money was to be used to fund drug manufacture was neither intended nor implied by Mr Newton in the note. It was an unintended assertion available to the jury from the circumstances and contents of the note. The note was not a written assertion by Mr Newton that Mr McKenzie would understand the references in the note because he had funded the manufacture. Section 27 does not, therefore, apply.
35 Booklet 75, 79, 80, 81.
36 Booklet at 82.
37 McKenzie v R [2013] NZCA 378 at [22]. The Supreme Court declined leave to appeal in McKenzie v R [2013] NZSC 109.
38 At [25].
[29] The Court of Appeal in R v Pearce explained the purpose of the rule against admissibility of co-defendants’ statements as:39
The co-accused rule reflects that notwithstanding that a confession is against the interest of the maker of the statement and is thereby likely to be true, in a co-accused situation the maker of the statement may have other motives, such as endeavouring to transfer blame to the other co-accused, that are capable of undermining the reliability of the statement. The rule also reflects that the out of Court admission has not been made on oath and that the co-accused will not have had an opportunity to cross-examine the maker of the statement.
[30] Since its amendment in 2016, s 27 qualifies the inadmissibility of co- defendants’ statements by application of s 22A, which was inserted at the same time. The purpose of those amendments was that the co-conspirators’ exception to the admissibility of hearsay was not overridden by the rule against admission of co- defendants’ statements in s 27.40 From 2006 to 2007 it had been so overridden, and from 2007 to 2016, a temporary hold on such overriding was in place.41
Submissions
[31] On 5 July 2018, Mr Ryan submitted there was no evidence Mr Wellington was involved in a joint enterprise before 3 October 2016 for the purposes of s 22A. Mr Tantrum submitted Mr Wellington flying to Christchurch with his two children on 30 September 2016 marked the beginning of his involvement in the joint enterprise. I indicated I did not consider that flight, without more, was reasonable evidence of Mr Wellington’s involvement in the joint enterprise.
[32] Mr Ryan then raised a further dimension of admissibility. He submitted communications, up to 8.14 pm on 3 October 2018 on page 66 of the Booklet,42 were not admissible against Mr Wellington because they were evidence offered by the prosecution of a statement made by a defendant. Consequently, by reason of s 27, they were admissible against Mr Wellington, a co-defendant, only if admitted under s 22A. He submitted I should direct the jury the communications were not admissible against Mr Wellington accordingly.
39 R v Pearce [2007] NZCA 40 at [26].
40 R v Liev [2017] NZHC 830 at [10]–[11]; Law Commission, above n 30, at [14.1]–[14.9].
41 Law Commission, above n 30, at [14.5]–[14.8].
42 Booklet at 66.
[33] Mr Tantrum submitted the evidence had been played to the jury without opposition and must be taken to have been admitted by consent under s 9.43 On behalf of Ms Wellington, Mr Lack agreed with Mr Tantrum that counsel had agreed to admission of the communications and, to some degree, all parties had relied upon them. Mr Lack did not take issue with their admissibility.
[34] On 5 July 2018, I indicated I considered there was force in Mr Ryan’s submission the communications were not admissible because of ss 22A and 27. I also indicated I considered the evidence had probably been admitted by consent. But there was still time for me to direct the jury to pay no regard to the communications in my summing up. I indicated I had not decided whether to do that or not and asked Mr Tantrum if he was ready to present his closing arguments to the jury on that basis. Mr Tantrum indicated he was ready and he would avoid specific reference to the communications on the first 66 pages.
[35] On 6 July 2018, before closing, Mr Tantrum stated the Crown no longer considered it knew the legal status of the communications before 3 October 2018. He indicated he would appreciate knowing whether I was going to rule them inadmissible. Mr Tantrum told me the Crown was relying on the communications prior to 3 October, from pages 1 to 55 of the Booklet, to set out background to the offending. He submitted their content supplemented the s 9 statement of agreed facts, which also sets out background to the alleged offending by describing police observations of Mr Hughes, Mr McArley, Ms F, Mr Robati, Mr Le’Ca and Mr Uputaua on 29 and 30 September 2016. Mr Tantrum stated, on a global basis, the Crown did not intend to point to any parts of those communications to ask the jury to rely on them for the truth of their contents. He did not recall any of the communications mentioning either of the two defendants.
[36] Mr Ryan maintained his objection to the admissibility of these communications on the basis of s 27 of the Act. I distributed to counsel the Court of Appeal’s judgment in Williams v R.44 The judgment interpreted the words “co-defendant in this proceeding” in s 27 to exclude a defendant who was jointly charged with Mr Williams
43 Relying on R v Pickering [2012] NZCA 311, [2012] 3 NZLR 498 at [97].
44 Williams v R [2017] NZCA 176, (2017) 28 CRNZ 471.
but who had pleaded guilty and been sentenced before the trial.45 It concluded “the words ‘defendant’ and ‘co-defendant’ as used in s 27 refer to people who are being tried together”.46 Mr Ryan submitted there was a distinction here because the other defendants had not yet been sentenced. He sought my ruling.
Ruling
[37] On 6 July 2018, in response to the requests from Mr Tantrum and Mr Ryan for a ruling before their closings, I ruled the communications prior to 3 October 2016 were not inadmissible on the basis of s 27. In Bench Note No 8, issued that day, I stated:47
I ruled the pre-3 October 2018 statements are not inadmissible on the basis of s 27. Whether they are admissible depends on whether they are hearsay statements. Mr Tantrum told me the Crown is relying on the pre-3 October communications, from pages 1 to 55 of the Transcript Booklet, to set out background to the offending. He submitted their content supplements the s 9 statement of agreed facts. Mr Tantrum said he was anxious not to hold up the trial so would not request half a day to go through the communications. He stated, on a global basis, the Crown did not intend to point to any parts of those communications to ask the jury to rely on them for the truth of their contents. He did not recall any of the communications mentioning either of the two defendants. On the basis the Crown was not relying on them for the truth of their contents, I ruled the pre-3 October 2016 communications are admissible.
In regard to the use Ms Wellington’s counsel wanted to make of the communications, I noted evidence is either admissible or inadmissible. That does not depend on whether a defendant objects. So, if the communications were inadmissible in relation to Mr Wellington they may also be inadmissible against Ms Wellington. However, I indicated my review of the authorities suggests that, even if communications were inadmissible against a defendant under s 27, a defendant is entitled to rely on them.
I will issue a judgment in due course explaining my reasons for my decisions. That may not be until after my summing up on Monday 9 July 2018.
[38] I now address the reasons for my ruling in relation to Mr Wellington and then in relation to Ms Wellington.
What were the communications?
[39] I accept the Crown’s submission the communications from 27 September 2016 to 3.47 pm 30 September 2016 (pages one to 32) provide a general understanding of
45 At [19].
46 At [21].
47 Bench Note No 8, 6 July 2018 at [4]–[6].
the activities of, language (especially apparent code words) used by and relationships between other defendants, particularly Ms F, Mr Hughes and Mr McArley. But I do not accept the Crown’s submission that all the communications up to page 55 were background context only.
[40]The communications starting from 4.41 pm 30 September 2016 (page 33) are:
(a)phone conversations between Mr Hughes and Ms F on 30 September 2016, apparently about Mr Wellington flying to Auckland;48
(b)text exchanges on 30 September 2016 between Mr Hughes and Ms Smith, apparently about supply of “work” which the Crown alleged was code for methamphetamine;49
(c)a phone conversation on 1 October 2016 between Ms F and Mr Hughes the Crown alleged uses code to refer to counting money and could refer to Mr Wellington being present;50
(d)phone conversations on 1 October 2016 and 3 October 2016 where Ms F is checking on Mr Robati (who was later arrested for and pleaded guilty to supplying methamphetamine on 29 September 2016);51
(e)text exchanges between Mr Hughes and Mr McArley about waiting for “church”, which the Crown alleges is a reference to Mr Wellington who was from Christchurch;52
(f)phone conversations between Mr Hughes and Mr McArley on 3 October 2016, apparently with Mr Wellington being in Mr McArley’s car, about their plan that Mr McArley would drive from Auckland to
48 Booklet at 33-33A, 44.
49 Booklet at 34 to 43, 45.
50 Booklet at 46–47.
51 Booklet at 48–49, 51-54, 55.
52 Booklet at 50.
Christchurch with Mr Wellington and Ms Wellington would fly down and meet them there and drive back with Mr McArley;53 and
(g)texts and phone conversations between Mr Hughes and Mr McArley on 3 October 2016 about meeting.54
[41] In his closing address to the jury, Mr Tantrum went through the communications from pages 56 to 66. He alleged they showed Mr Hughes and Mr McArley discussing the trip south and Mr McArley and Ms Wellington and Mr Hughes chasing money with which to buy methamphetamine from Ms F to take to Christchurch to supply to Mr Wellington.55 In my summing up to the jury, relevantly, I said:56
The Crown’s case is that Mr Wellington flew up to Auckland, met up with Mr Hughes and McArley, drove with Mr McArley from Auckland to Wellington and then across on the ferry to Christchurch, arriving on 6 October 2016. The travel movements themselves are not disputed. Mr Tantrum pointed to Mr Hughes’ and Mr McArley’s convictions for supplying methamphetamine on this date. He submits Mr McArley, Ms Wellington and Mr Hughes were chasing money beforehand to buy methamphetamine from Ms F. Mr Tantrum pointed to phone conversations between Mr McArley and Mr Hughes about the trip, particularly on the 3rd of October about coming back through Palmy and Napier and having to take more down to do that. And he points to calls between Mr Hughes and Male 1, who the Crown says you can be sure is Mr Wellington. On 6 and 7 October, Male 1 said he’s “put a couple out there already” and he discussed trading “half a thing” for a stolen Harley motorbike. Mr Tantrum points to a later conversation on 17 October which he submits shows Mr Wellington had a network of customers or people supplying underneath him. Mr Tantrum submitted it would not be feasible to undertake all this effort for 10 grams, a dessertspoonful. He submitted a later conversation, in which Mr Wellington wanted to double the usual to 2 O, indicated 10 ounces of methamphetamine was taken down on 6 October to Mr Wellington in Christchurch who supplied it to others.
Were the communications admitted by consent?
[42] First, I address Mr Tantrum’s submission the communications were admitted by consent under s 9. At trial, I indicated this was probably so. On further review, I confirm it was so. Section 9(1)(a) of the Act provides:
53 Booklet at 56–59 and 60–62.
54 Booklet at 63–65.
55 Crown Closing on 27 June 2018 at 18–20.
56 Summing Up of 9 July 2018 at [45].
(1)In any proceeding, the Judge may,—
(a)with the written or oral agreement of all parties, admit evidence that is not otherwise admissible; and
(b)admit evidence offered in any form or way agreed by all parties.
[43]There is a limit on this discretion. The Court of Appeal has held, variously:
(a)“s 9 does not relieve the Judge from ensuring that the trial is fair”;57
(b)in exercising the discretion to admit evidence under s 9, “it is the duty of the trial judge to ensure that any conviction is not based on material evidence that is, in law, inadmissible”;58 and
(c)“the trial judge had the responsibility to ensure evidence that should plainly be excluded was not adduced at trial”.59
[44] It is not clear these statements are all mutually consistent or consistent with the wording of s 9(1)(a). I proceed on the basis the discretion to admit evidence under s 9 is constrained by the usual requirement that it not be exercised for improper purposes. In particular, a judge is required to exercise his or her discretion consistently with the rights and freedoms of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Foremost among those rights, in the context of a criminal trial, is the right to a fair trial under s 25 of the Bill of Rights. The text of s 9(1)(a) makes clear a judge has a discretion to admit evidence that is otherwise inadmissible. But in exercising that discretion, a judge may not admit evidence under s 9, even though agreed by all parties, if that would result in an unfair trial. Neither should evidence be admitted where its unfairly prejudicial effect outweighs its probative value, as required by the rule of general exclusion under s 8 of the Act.
[45] Here, at the beginning of the first trial, Mr Ryan for Mr Wellington objected to the voice attribution in the Booklet. I upheld that objection and the Booklet was
57 Marsich v R [2012] NZCA 470 at [20].
58 Wilson v R [2015] NZCA 531 at [17]–[18].
59 Douglas v R [2018] NZCA 26 at [15].
redone. As recorded in Bench Note No 1 (v2) of 27 June 2018, I gave leave for the revised Booklet to be provided to the jury during the Crown’s opening at the second trial by consent. Detective Sergeant Beal, the Crown’s first and primary witness, went through the communications in the booklet chronologically, reading the texts and having the recorded conversations played to the jury. The booklet was produced as Exhibit 2. No objection was taken at the time to the communications to which Mr Ryan later objected. Mr Lack, for Ms Wellington, agreed with Mr Tantrum that counsel had agreed to admission of the communications and, to some degree, all parties had relied on them. Mr Ryan cross-examined Detective Sergeant Beal by referring to one of the contested communications, from page 58 of the Booklet.60
[46] In those circumstances, where defence counsel considered the communications, consented to them being provided to the jury and did not object to them being admitted until after all the Crown’s evidence was presented, I consider I admitted all the communications in the Booklet, other than those after 2 November 2016 in respect of Mr Wellington, with the agreement of all parties under s 9 of the Act. That includes the communications from pages one to 66. They were admitted by consent under s 9 even if it were not otherwise admissible. The only restriction would therefore be the general qualification on the discretion to admit the communications under s 9 if it would be unfair to do so.
[47] I do not consider the communications were unfairly prejudicial to the defendants in terms of s 8, nor that their admission rendered the trial unfair. The communications from pages one to 32 were relevant to the language used by the defendants who had pleaded guilty prior to trial and their relationships in their later interactions with Mr Wellington and Ms Wellington. They were not relied upon or mentioned by the Crown in closing. I do not consider they were unfairly prejudicial so as to mean they should not have been admitted by consent.
[48] In terms of s 7 of the Act, I consider the communications from page 33 to 66 were relevant and probative because they tended to prove allegations of consequence to charges against Mr Wellington. I consider their context suggests the statements
60 Notes of Evidence at 220/1-5, referring to use of the word “Bro” in the conversation beginning at
3.23 pm on Monday 3 October 2016, Booklet at 58.
were reliable. They were not self-serving. There was no inducement to make the statements. The statements were made spontaneously by the defendants and largely went to their state of mind at the time. I do not consider admission of these communications was unfairly prejudicial nor resulted in the trial being unfair. That conclusion holds irrespective of whether s 27 is applicable to these communications.
[49] Because of my conclusion that the communications were admitted by consent under s 9, I do not need to consider whether they were admissible under s 27. But in case I am found to be wrong about that on appeal, I consider this too. I examine four elements to the application of s 27 in turn:
(a)whether they were made by co-defendants;
(b)whether they were statements;
(c)whether it matters if they were hearsay; and
(d)whether they were admissible under s 22A.
(a)Were the communications made by “co-defendants” under s 27?
[50] In Williams v R, the Court of Appeal interpreted the “critical” words “co- defendant in this proceeding” in s 27 not to include a defendant who was jointly charged with Mr Williams but who had pleaded guilty and been sentenced before the trial.61 The Court’s conclusion was based on the plain meaning of the words of the section. The Court also considered the distinction between a “co-defendant”, and the wider term “associated defendant” under s 73 of the Act, reinforced its conclusion.62 Accordingly, it considered “the words ‘defendant’ and ‘co-defendant’ as used in s 27 refer to people who are being tried together”.63 The Court considered the legislative history of s 27 further supported its conclusion, quoting the select committee’s report as follows:64
61 Williams v R, above n 44, at [19].
62 At [20]-[21].
63 At [21].
64 At [22]; Evidence Bill 2005 (256-2) (select committee report) at 4.
We recommend that clause 23 [now s 27] be amended so that a defendant’s statement would be inadmissible against a co-defendant in joint criminal trials. A statement made by a defendant would be admissible only against that defendant. This would maintain the current law relating to statements by co- defendants. In our view the admission of such a statement against a co- defendant would unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and complexity of many joint trials.
[51]The Court of Appeal concluded:65
The primary reason for the protection afforded to a co-defendant in s 27(1) is that the co-defendant would have no means of challenging the out-of-court statement unless the defendant who made the statement chose to give evidence, something over which a co-defendant has no control. What occurred in the present case, with all defendants being able to cross-examine Mr Mikaere, illustrates in a practical sense why s 27(1) had no application and why there was no unfairness to Mr Williams. The Judge’s direction to the jury that Mr Mikaere was simply a witness, criticised by Mr Allan, was entirely accurate.
[52] Mr Ryan submitted there was a distinction with the case here because other defendants had not yet been sentenced. Nor did they give evidence. At trial, I was not inclined to agree with Mr Ryan’s submission that this distinction made a difference. However, I do now, in relation to some defendants.
[53] Mr Robati had already pleaded guilty and been sentenced on 26 June 2017 (just) before the Wellingtons’ second trial. He was potentially compellable as a witness. His communications were not statements of a co-defendant and were admissible against the Wellingtons. However while Ms F, Mr Hughes, Mr McArley and Ms Smith had pleaded guilty before the Wellingtons’ trial, they had not been sentenced. Mr Hughes and Ms Smith were sentenced on 17 July 2018, after the Wellingtons’ trial ended. Mr McArley was sentenced on 14 August 2018. Ms F is to be sentenced on 23 August 2018, with the Wellingtons. So Ms F, Mr Hughes, Mr McArley and Ms Smith were not compellable witnesses under s 73(3)(c). I agree the reasoning of the Court of Appeal in Williams does not extend to statements by these co-defendants. Indeed, its identification of the primary reason why s 27 protects statements by a co-defendant does apply: the Wellingtons would have no means of challenging the statements by way of cross-examination.
65 At [24].
[54] Accordingly, I consider the communications by Ms F, Mr Hughes, Mr McArley and Ms Smith were made by “co-defendants” of the Wellingtons for the purposes of s 27.
(b)Were the communications “statements” for the purposes of s 27?
[55] As noted above, a “statement” requires an intention by the speaker to assert something. Were the communications here “statements”, for the purposes of s 27?
[56] I have found the communications from 27 September to 30 September 2016 (on pages one to 32 of the booklet) were evidence of background context of activities, language and relationships rather than as assertions of any matter. Accordingly, they were not “statements” caught by s 27. The communications from 30 September 2016 (on page 33 to 66) were relied upon by the Crown. But were they relied upon as assertions of any matter? The closest to this were references to:
(a)“the bro flyin in” “about nine, nine thirty” on 30 September 2016;66
(b)on 3 October 2016, to Mr McArley planning to drive to Christchurch with “the bro”, “Sis will drive down and then drive back up with me” and Mr McArley can come back through Palmy and Napier and grab “things” too, though that means he would have to “take more down”.67
[57] There is independent evidence Mr Wellington was on a flight which was scheduled to arrive in Auckland at 9.00 pm and did arrive at 9.15 pm 30 September 2016, Mr McArley and Mr Wellington drove from Auckland to Christchurch on 6 October 2016, Ms Wellington flew down on 5 October 2016 and Mr McArley and Ms Wellington flew back on 7 October 2016.68 As I noted in summing up, the travel movements themselves were not disputed.69 The Crown did not rely on these communications as statements proving this travel happened (before it did happen).
66 Booklet at 33.
67 Booklet at 57–58.
68 Flight and ferry bookings in Exhibit 1, Documentary and Photographic Exhibits at 30–32, 35–36, 37, 38–40.
69 Summing up at [45].
[58] I consider these communications were relied upon as implied statements, to ground inferences that Mr Wellington and Ms Wellington were integrally involved in the plan to supply methamphetamine from Auckland to Mr Wellington in Christchurch. That inference was to be drawn from the communications as an underlying assumption informing the communications, when viewed in light of other circumstantial evidence. As I mentioned in the summing up, the Crown pointed to these communications in the context of: Mr Hughes’ and Mr McArley’s convictions for supplying methamphetamine on 6 October 2016; Mr McArley, Ms Wellington and Mr Hughes chasing money beforehand to buy methamphetamine from Ms F; and subsequent statements in which Mr Wellington is alleged to have made statements meaning he later made supplies.
[59] The communications at issue were unintended assertions about Mr Wellington’s and Ms Wellington’s involvement in the planned supply of methamphetamine that were available to the jury from the content of these communications only when put together with other circumstantial evidence. For that reason, as in McKenzie, I do not consider s 27 applies to them because they are not “statements” for the purpose of s 27. They are accordingly admissible as relevant evidence under ss 7 and 8 even if my conclusions on s 9 do not hold.
(c)Were the communications admissible because they were not hearsay?
[60] It follows from my conclusion the communications were not statements that they were not hearsay statements either. But in any case, and contrary to the implicit indication in my Bench Note No 8 issued at the time of my ruling on 6 July 2018, I do not now consider that whether the co-defendants’ statements were inadmissible under s 27 depends on whether they are hearsay. Even if they were not hearsay, if they were caught by s 27 they may still be admissible.
[61] Section 22A identifies three requirements that must be satisfied for a hearsay statement to be admissible against a defendant. Section 27 states a co-defendant’s evidence is admissible “only if it is admitted under section 22A”. In R v Liev I identified a question about whether statements by a defendant that are not hearsay can
be admitted against a co-defendant under s 27.70 I suggested the drafting of s 27(1) suggested not, which may be consistent with the legislative history but not with the nature of the co-conspirators’ rule being an exception to inadmissibility only on the basis of hearsay.71
[62] In response, Adams on Criminal Law suggests the Preston approach to the meaning of “statement” means “it is only when the Crown’s purpose in offering evidence of what a co-defendant has said is to prove the truth of what the co-defendant intentionally asserted (a hearsay use) that the prosecution is offering a ‘statement’ by the co-defendant at all”.72 But the statutory definitions suggest the category of “statements” is broader than that of “hearsay statements”. And the differences between an “implied statement” under Preston, a statement not relied upon for the truth of its contents under the statute and a verbal act under Qiu are elusive. There is a confusing terminological overlap between them.
[63] I understand the Court of Appeal in Preston to be distinguishing between a “statement”, where the speaker intended to convey the meaning relied upon, and an “implied statement”, where the relevant meaning was implied, that is inferred from the communication, so the speaker did not intend to convey it. But I do not consider there is a complete equation of “statement” under s 27 with “hearsay statement” under s 22A. That would be problematic, given the statutory definition of “hearsay statement”. Rather:
(a)A statement may or may not be a “hearsay statement” under s 22A depending on whether it is relied upon for the truth of its contents.
(b)An implied statement is not a “statement” under s 27, because the speaker does not intend to assert it, and it is not a “hearsay statement” under s 22A because it is not a statement and it is not relied upon for the truth of its contents.
70 R v Liev, above n 40, at [14].
71 At [14].
72 Simon France (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuters) at [EA27.02(1)].
(c)A communication not relied upon for the truth of its contents, is not a “hearsay statement” under s 22A but it may be a “statement” under s 27 if it is an assertion of any matter.
(d)A verbal act may be a statement under s 27 because it is an assertion but, since it is not relied upon for the truth of its contents, it will not be a hearsay statement under s 22A.
[64] These are the sort of fine linguistic distinctions which can give legal analysis a bad name. It is better to rely on principle and purpose.
[65] The Law Commission’s 2018 Report also considered my observation in R v Liev.73 The Commission considered a blanket ban on the inadmissibility of a co- defendant’s non-hearsay statements is problematic. Such statements would have been admissible under the pre-2006 common law. And the Commission was not convinced there is any principled basis for the admissibility of the statement to depend on whether it is hearsay. The Commission expressed the preliminary view that “rather than classifying the co-conspirators’ rule as a general exception to the hearsay rule, it is more logical to regard the rule as providing an independent means of admitting a defendant’s out of court statement against a co-defendant”.74
[66] I consider it is clear that is the purpose of the current provision. As the Court of Appeal said in Pearce, the purpose of the rule against admissibility of co- defendants’ statements is the unreliability of a statement blaming another co- defendant, which was not made on oath and which is unable to be tested under cross- examination. The purpose of the 2016 amendments was to qualify that inadmissibility in circumstances where specified indicia of unreliability are not present: the test in s 22A of whether there is reasonable evidence the defendant was a member of a joint enterprise in furtherance of which the statement was made. In those circumstances, there should be no reason for the concern about unreliability that motivates s 27.
73 Law Commission, above n 30, at [14.10]–[14.22].
74 At [14.22].
[67] Fulfilling that legislative purpose does not depend on whether the statement is hearsay or not, as the Commission points out. The legislative history illustrates an intention to preserve the co-conspirators’ exception to inadmissibility of a broader common law version of hearsay as an exception to the inadmissibility of co- defendants’ statements. The intention of s 27, read in light of its legislative history and purpose, was to invoke the three-part test of reliability in s 22A as the only possible route to admitting co-defendants’ statements. If the s 22A test is satisfied, then the statement is admissible as an exception to the inadmissibility of co-defendants’ statements irrespective of whether the statement is hearsay or not. Otherwise only hearsay statements of co-defendants would be admissible. Statements which, for example, were not relied on for the truth of their contents, would not be admissible, even if they were not the subject of the concern that motivates s 27. I cannot see any sense in that.
[68] A purposive reading of s 27 faces a stiff interpretive challenge in the wording of s 22A, which refers to “hearsay” three times and is located in a subpart of the Act entitled “Hearsay evidence”. It may be possible to meet that challenge by reading the references to “hearsay” in s 22A, when applying s 27, as harking back to the old common law meaning of hearsay which would include all out-of-court co-defendants’ statements.
[69] However, I prefer to rely on the clear meaning of s 27. Section 27 refers to “evidence of a statement made by a defendant”. It does not qualify that as referring to hearsay statements only. Read in light of its purpose and legislative history, I consider s 27 may make admissible a statement of a co-defendant if it is admissible under the legal test of s 22A irrespective of whether it is a hearsay statement. While legislative amendment would be far preferable to establish that, I would be prepared to interpret s 27 that way if necessary in the interests of justice. Given my conclusions the communications here were admitted by consent under s 9 and were not statements for the purposes of s 27, I do not need to determine that. I include my reasoning on the point in the hope it might assist further reform of the law.
(d)Were the communications admissible under s 22A?
[70] In his pre-trial ruling, Downs J ruled the communications from 3 October 2016 were admissible under s 22A as they appeared to reveal Mr Wellington as an alleged member of an enterprise to deal methamphetamine.75 That included the communications at issue from pages 55 to 66. Nothing arose at trial to cast doubt on that. Accordingly they were admissible under s 22A and, therefore, under s 27.
[71] At trial, I considered Mr Wellington’s flight to Auckland, without more, was not evidence he was yet a member of the joint enterprise. On review of the communications, however, I consider there was more. The phone conversation between Mr Hughes and Ms F on 30 September 2016, the evening Mr Wellington flew to Auckland being scheduled to arrive at 9.00 pm, included these passages:
HUGHES:Got the bro flying in from. Got the bro. You know that bro we went and see him, and we went for a trip?
F Hmm.
HUGHESGot him flying in (Pause) ahum, I gotta go ke-, fold all my clothes so that’s ready for you tonight. (Pause) Umm.
F (Cut over) Is your phone charged? HUGHES This one, yeah, Fully charged.
F Don’t turn it off babe.
HUGHESBabe (Pause) it’ll never be off. Alright. (Pause) I’m just letting you know now so I’m gonna have a busy next few hours. I think he’s flying in about (Pause) nine, nine thirty. (Pause) And then, (Sighs) have ta get everything sorted for him. (Pause) Fold the rest of the clothes. Give that to you tonight. Where do you want me ta leave that? Just leave it at the strippers?
FYeah, leave it at the strippers and then um (Pause) I’ll get it off ya and put it into.
HUGHES (Cut over) Yeah. Tomorrow… F (Cut over) Yeah.
HUGHES… once all the girls go and that, it’s sweet. But that’ll be there ta’night for ya, you know what I mean?
75 R v Wellington, above n 5, at [25].
[72] I consider a reasonable inference can be drawn from this conversation that Mr Wellington was a member of the joint enterprise from at least 30 September 2016.
[73] I am conscious that, in the context of a pure application of s 22A, hearsay evidence itself cannot be the basis for satisfaction about the defendant’s membership of a joint enterprise. But a person joining an enterprise is taken as impliedly ratifying the steps already taken in furthering it.76 And the communication is not being relied upon to determine Mr Wellington’s membership of the enterprise. There is independent evidence of that. None of the evidence relied upon by Downs J in his pre-trial conclusion of that involved communications before 4 October 2016.77 In the context of that evidence, this communication assists to establish Mr Wellington’s involvement in the joint enterprise was active by 30 September 2016. I do not understand relying on it for that purpose to transgress the prohibition on reliance on hearsay for establishing membership of a joint enterprise at all. Such a communication could similarly be relied upon to establish a defendant was not involved at that time.
[74] Accordingly, I consider the statements by Ms F, Mr Hughes, Mr McArley and Ms Smith from 30 September (page 33) onwards were admissible against Mr Wellington under s 22A.
Were the communications admissible against Ms Wellington?
[75] As I said at trial, evidence is either admissible or inadmissible. That does not depend on whether a defendant objects. However, for the same reasons I give above in relation to Mr Wellington, I consider the statements by co-defendants from pages 1 to 66 of the booklet were admissible against Ms Wellington:
(a)the communications were admitted by consent under s 9, as Ms Wellington’s counsel agreed, and their admission was not unfairly prejudicial and did not render the trial unfair; or,
(b)the communications were not “statements” so were not inadmissible under s 27; or
76 R v Messenger, above n 21.
77 R v Wellington, above n 5 at [16]–[26].
(c)if they were statements, the communications were admissible under the co-conspirators’ rule, s 22A, even though they were not hearsay statements.
Issue 3: Did the particulars of a charge matter?
Issue
[76] According to the Crown Charge Notice, charge 11 against Ms Wellington was that she supplied methamphetamine. The particulars were:
That CHEVON[NE] KRYSTAL WELLINGTON on or about 27 October 2016 at Christchurch, together with Callan Hughes supplied a class A controlled drug namely methamphetamine, to Riki William Wellington.
[77] I summed up the case to the jury on Monday 9 July 2018 and then the jury commenced deliberation. Around 2.00 pm on Tuesday 10 July 2018, I received a note:
Charge 11
For a guilty verdict do the drugs have to be supplied to Mr Riki Wellington
[78] These sorts of decisions are usually made in the course of trial so there is a paucity of first instance judgments explaining them. Because I was issuing this judgment anyway, in relation to the issues above, I include in it an outline of the relevant law and my decision.
Submissions
[79] Mr Tantrum, for the Crown, submitted as a matter of law, for a guilty verdict, the drugs did not need to be supplied to Mr Wellington, but to any other person or persons. He noted he had referred in his closing to Mr Wellington having a customer at the motel.
[80] Ms Maxwell-Scott for Ms Wellington submitted, while normally the particulars are not required to be proven, the Crown’s case here had always been that Ms Wellington was acting in concert with Mr Hughes to give drugs to her brother. She submitted the Crown relied upon a particular factual matrix, that Ms Wellington was a go-between or link between Mr Wellington and Mr Hughes. She submitted the
defence was not run on the basis supply was to Mr Michael Heron and if that had been alleged she may have cross-examined Mr Heron and she would have made her closing address to the jury on a different factual and legal basis. She referred me to Milner v R.78
[81] Mr Ryan submitted the Crown opened and closed on the basis methamphetamine was supplied to Mr Wellington and no other intermediary. When I asked, Mr Ryan said he heard Mr Tantrum saying something different about a customer in the motel during the Crown’s closing.
[82] I adjourned briefly to review the Crown’s opening and closing, my summing up and relevant case law, including Milner v R.79
Law of particulars
[83] Section 24(a) of the Bill of Rights provides everyone who is charged with an offence “shall be informed promptly and in detail of the nature and cause of the charge”. Section 25 sets out the minimum rights of those charged with an offence, which include the right to a fair and public hearing and the right to present a defence.
[84] Section 17(4) of the Criminal Procedure Act 2011 provides a charge “must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed”. In considering an earlier version of the section, McCarthy J in the Court of Appeal stated in 1966 in Police v Wyatt:80
…sufficient particulars must be given reasonably to inform the person charged of the act or omission alleged and to identify the transaction. A requirement stated in the general terms of s 17 cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one … more will be required.
78 Milner v R [2015] NZSC 38, (2015) 27 CRNZ 412.
79 At [7]–[11].
80 Police v Wyatt [1966] NZLR 1118 (CA) at 1133 (citations omitted).
[85] In 2012, in Gamble v R, after reviewing relevant case law, the Court of Appeal invoked the right to a fair trial under s 25 of the Bill of Rights and stated:81
An accused is entitled to know, with all available particularity, the substance of that with which he is charged. And he has the right to have each specific allegation tested separately under the criminal process according to law. Where allegations relate to “a long time ago”, the need for all possible specificity is, if anything, the greater.
[86] I add that s 24(a) of the Bill of Rights lends additional weight to that conclusion.
[87] Section 133 of the Criminal Procedure Act 2011 provides a charge, including the particulars, may be amended on the court’s own motion or on the application of a party up until verdicts are given.
[88] It is clearly established that the Crown will sometimes be required to prove certain particulars even if they are not ordinarily essential elements of the offence. In Thomas v R, Turner J held:82
There may of course be a kind of case in which without the affirmative proof of some collateral circumstance, not itself an essential ingredient of the crime charged, the Crown case must fail, for reasons special to the particular case. In such a case it will be necessary for that particular fact to be proved to the satisfaction of the jury beyond reasonable doubt; for if it is not so proved, ex hypothesi a reasonable doubt must remain on the whole case. But such cases are exceptional. This case is not one of them. An example, if one is needed, will be found in the facts of R v Dehar [1969] NZLR 763.
[89] In R v Dehar, the Court of Appeal held the allegation the defendant had been lying in making statements to the police was an essential element of the case against him. The lies “constitute[d] an important element in the chain of proof put forward by the Crown”.83 The jury needed to be satisfied beyond reasonable doubt that the defendant had lied to find him guilty; if he had not lied, there was insufficient evidence to find him guilty.
81 Gamble v R [2012] NZCA 91 at [31].
82 Thomas v R [1972] NZLR 34 (CA) at 41.
83 R v Dehar [1969] NZLR 763 (CA) at 765.
[90] In Milner, the Supreme Court refused leave to appeal the Court of Appeal’s decision that the method of poisoning was not a particular that needed to be proved for the verdict to stand. It held:84
The existence of a power to give a direction as to proof of a particular circumstance in a case where it is in the interests of justice to do so is not challenged. It is part of the inherent powers of the court to ensure that guilt is established by the Crown beyond reasonable doubt. Where a disputed circumstance is not an element of the offence charged however there must be some exceptional reason particular to the case to justify such a course, as Turner J in Thomas made clear. Such an exceptional reason would arise if in the absence of such proof of a particular fact, there must necessarily be a reasonable doubt about the verdict of guilty.
The principle is not in issue …
Proof of the manner of administration was not comparable to the fact of lying in issue and its particular importance in R v Dehar, where without proof that the defendant had lied in his evidence there was insufficient evidence to establish the charges beyond reasonable doubt. There was, too, risk in Dehar of impermissible reasoning by the jury. By contrast, the circumstantial evidence against Ms Milner, as the Court of Appeal said, was substantial. It included expressions of intent by her to others, purchases of promethazine and the presence of promethazine in Mr Nisbet’s system. The question how the drug was administered without Mr Nisbet’s knowledge was one circumstance to be set in the wider context. It was fully canvassed at the trial. The jury was directed by the Judge it had to be sure that Ms Milner had drugged Mr Nisbet “with Phenergan without his knowledge”. That was the fact that had to be proved to the satisfaction of the jury and to the standard beyond reasonable doubt. The jury was left in no doubt as to that requirement. There was no risk of miscarriage of justice.
[91] There are examples of the High Court allowing appeals on the basis it would be unfair to allow conviction without proof of particulars.85
Decision
[92] As set out in my bench note that day, which was distributed to counsel, I concluded the drugs did have to be supplied to Mr Wellington for Ms Wellington to be found guilty of this charge.86 Supply to another would not be sufficient, even if all the statutory elements of the charge were proved, in the context of the way in which this trial had proceeded.
84 Milner v R, above n 78 at [8]-[10].
85 Bentley v Police [2017] NZHC 1440; Seymour v Auckland Council [2015] NZHC 743 at [18]- [20].
86 Bench Note No 10 of 10 July 2018, at [4].
[93] The charges, and the charge list given to the jury, specified charge 11 involved supply to Mr Wellington. The Crown opened on that basis.87 The draft Question Trail on which feedback was sought from all parties specified supply was to Mr Wellington in charge 11. The Crown closed on the basis charge 11 involved supply to Mr Wellington.88 I summed up the case for the jury on that basis. I considered the Crown’s case was put squarely on the basis supply was to Mr Wellington in relation to charge 11 right up to deliberation.
[94] If supply in charge 11 had instead been alleged to be to someone else, Ms Maxwell-Scott may well have closed on a different factual and legal basis than she did. She may have had a duty to do so. And she may well have cross-examined Mr Michael Heron, who was called by Mr Wellington. Ms Wellington would also have had these opportunities had the Crown sought to amend the charge under s 133 earlier in the trial.
[95] Accordingly, I did not consider, in the circumstances of the way in which this case had been run, it would be fair to Ms Wellington for the jury now to be invited to consider a different case. That would not be in the interests of justice and may have given rise to a reasonable doubt about the verdict. I advised counsel I proposed to advise the jury accordingly.
[96] I exercised the power to give a direction as to proof of a particular circumstance.89 I advised the jury the answer to their question is, on charge 11, for a guilty verdict, the drugs did have to be supplied to Mr Riki Wellington. The following day, Ms Wellington was found guilty and convicted of that charge, as well as the other charges she faced.
Palmer J
87 Crown and Defence Openings, 27 June 2018 at [8] and [35].
88 Transcript of the Crown Closing at 48.
89 Milner v R, above n 78, at [7]–[8].
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