R v Williams - [2012] NZHC 106

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-3872 [2012] NZHC 106

THE QUEEN

v

NELSON WILLIAMS

Hearing: 8 February 2012

Counsel: M Smith and B O'Connor for the Crown
M Wharepouri for Mr Williams

Judgment: 9 February 2012

Reasons: 15 February 2012

JUDGMENT OF WOODHOUSE J

Solicitors:
Mr M Smith / Ms B O’Connor, Marsden Woods Inskip and Smith, Office of the Crown Solicitor,
Whangarei
Mr M Wharepouri and Mr B Hart, Barristers, Auckland

R V WILLIAMS HC WHA CRI-2010-088-3872 9 February 2012

[1] Mr Williams faces two counts of conspiracy. He contended that there was no sufficient admissible evidence of his participation in the conspiracy alleged by the Crown. In response the Crown made an oral application under s 344A of the Crimes Act 1961 to determine the question whether there is admissible evidence of Mr Williams’ participation in the conspiracies such that the matter should proceed to trial.

[2] Having heard argument and considered the documents tendered on 10

February 2012 I ruled in favour of the Crown without giving reasons. These are my reasons.

[3] Count 1 is as follows:

Patrick Joseph Hart and Nelson Williams together with Wayne John Clarke and Kelly Dodd between the 27th day of December 2008 and the 2nd day of January 2009 in Northland and Auckland conspired to supply a precursor substance, namely pseudoephedrine, knowing the substance to be used in the commission of an offence against Section 6(1)(b) of the Misuse of Drugs Act
1975.

Count 2 is in identical terms except that the period of the conspiracy is 2 January to

13 January 2009; that is to say it runs on immediately following the period alleged in the first count. Mr Hart is to be tried with Mr Williams. Mr Clarke and Mr Dodd pleaded guilty during the week commencing 7 February, when the trial was due to start.1

[4] The Crown’s application relies on the co-conspirator’s rule preserved by s 12A of the Evidence Act 2006. If the exception contained in the co-conspirator’s rule applies, statements made or acts done by one or more of the other alleged offenders in the absence of Mr Williams, and in furtherance of the conspiracy, are admissible against Mr Williams. And such statements are admissible as evidence of their truth notwithstanding that they would generally be inadmissible as hearsay, and
under s 27 of the Evidence Act, but for the co-conspirators exception.

1 The guilty pleas of Messrs Clarke and Dodd are, of course, not relevant on the present issue.

[5] The trial Judge must determine three threshold issues before such acts or declarations of other alleged conspirators will be admitted. As summarised in R v Messenger2 these are:

a) There was a conspiracy or joint enterprise of the type alleged.

b) The accused was a member of that conspiracy or joint enterprise.

c) The statements were made and/or the acts were done in furtherance of the conspiracy or joint enterprise.

[6] For the purposes of this preliminary hearing…

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 Williams

Details

AGLC: R v Williams [2012] NZHC 106
Case: [2012] NZHC 106
Decision Date: 9 February 2012

CaseChat Overview and Summary

Nelson Williams faced charges of conspiracy to supply a precursor substance, specifically pseudoephedrine, knowing it would be used in the commission of an offence against Section 6(1)(b) of the Misuse of Drugs Act 1975. The charges involved two separate periods: from 27 December 2008 to 2 January 2009 and from 2 January to 13 January 2009. The Crown applied for a ruling under s 344A of the Crimes Act 1961 to determine whether there was sufficient admissible evidence to establish Williams's participation in the conspiracies. Williams argued that there was no sufficient evidence to prove his involvement.

The key legal issues were whether there was reasonable evidence to establish that Williams was a member of the conspiracies, and if statements made by co-conspirators could be admitted as evidence against him. The court needed to determine if there was a conspiracy, if Williams was a member, and if the statements were made in furtherance of the conspiracy. The Crown had to prove Williams's membership by evidence independent of the co-conspirators' statements.

The court ruled in favour of the Crown, finding that there was reasonable evidence of Williams's participation in the conspiracies. The evidence included communications between Williams and Dodd, such as text messages and phone calls, which indicated Williams's involvement in the supply of pseudoephedrine. The communications were frequent and specific, suggesting a conscious common design involving all alleged conspirators. The court emphasised that these conclusions were preliminary and that the standard of proof was reasonable evidence. The ruling allowed the Crown to adduce the statements and acts of other conspirators against Williams, though all issues would remain alive if the matter proceeded to trial, with the standard of proof being beyond reasonable doubt.

Orders