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R v Wellington

R v Wellington

Case [2018] NZHC 2080 15 August 2018

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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, Auckland
M 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wellington

Details

AGLC: R v Wellington [2018] NZHC 2080
Case: [2018] NZHC 2080
Decision Date: 15 August 2018

CaseChat Overview and Summary

Riki Wellington and Chevonne Wellington were convicted of various charges relating to methamphetamine possession and supply. The Wellingtons were initially scheduled to be tried with other defendants but the other defendants pleaded guilty before the trial. The evidence against the Wellingtons was largely circumstantial, including intercepted phone calls and text messages, surveillance evidence, an agreed statement of facts and convictions of other defendants. The Wellingtons objected to the admissibility of some of the intercepted communications. The Wellingtons also objected to the admissibility of some communications as statements by co-defendants under s 27 of the Evidence Act 2006. The judge ruled that three of the intercepted communications 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 judge ruled the 66 pages of intercepted communications were admissible as they were admitted by consent under s 9 and their admission was not unfairly prejudicial and did not render the trial unfair. The judge also ruled that if the communications were statements for the purposes of s 27, they were admissible under s 22A as there was reasonable evidence Riki Wellington was a member of a joint enterprise to commit an unlawful act and the statements were made in furtherance of the joint enterprise. The judge directed the jury that in order for Chevonne Wellington to be found guilty of supplying methamphetamine on one charge, they would have to find she supplied the drugs to Riki Wellington in particular. The Wellingtons were convicted of the charges they faced.

Orders