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  Mr  Wharepouri,  for  Mr Williams, proceeded on the basis that there is sufficient evidence to go to the jury on element (a) to the extent that there was a conspiracy as alleged between Messrs Dodd and Clarke.  Element (c) was also conceded for this argument.3

[7]      The argument before me was concerned only with the second element.  The

standard of proof to be met by the Crown on this point is “reasonable evidence”.4

The  broad  question  is,  therefore,  whether  there  is  reasonable  evidence  that  Mr

Williams was a member of a conspiracy of the type alleged in each of the counts.

[8]      Having regard to the scope of the submissions, there are two further points of principle  to  consider  before  considering  the  evidence.    The  first  concerns  the evidence that can be relied on at this stage by the Crown to seek to prove Mr Williams’ participation in the conspiracy.  This point was dealt with by the Court of

Appeal in R v Morris (Lee)5 as follows:

[18]      But the accused’s membership of that conspiracy cannot be proved by reference to what the conspirators have said about the accused in his absence. To admit such material for that purpose, as contrasted with the purpose of establishing the existence of a conspiracy, a design by the speakers, would be hearsay (Ahern at p 93).6 It is therefore necessary for the Crown, having shown that there is evidence of a conspiracy, to prove the accused's membership of it to the requisite standard by reference to matters

2 R v Messenger [2008] NZCA 13 at [11]; [2011] 3 NZLR 779.

3 These issues – (a) and (c) - as well as (b) will, of course, remain live issues for the jury.

4 Qui v R [2007] NZSC 51; [2008] 1 NZLR 1; (2007) 23 CRNZ 483; at [28].
5 R v Morris (Lee) [2001] 3 NZLR 759.

6 Ahern v R [1988] HCA 39; (1988) 165 CLR 87.

external to the statements which have been made in the absence of the accused.

[9]      The  second  point  raises  the  following  issue:  what  must  be  proved,  by reasonable evidence, to establish that Mr Williams was a member of the conspiracies in question?  Mr Smith, for the Crown, submitted that the Crown need only establish that  Mr  Williams  was,  at  the  material  time,  involved  in  some  sort  of  illegal enterprise.   In his submissions in reply, when I pressed him on this, Mr Smith submitted that all the Crown needed to prove was that Mr Williams was “up to no good”.  The submission, on the face of it, is contrary to settled principles of proof in respect of the elements of a charge in criminal cases.   This is borne out by clear

statements of the Court of Appeal in Messenger and Morris.7   There is the following

in Messenger:

[14]      The Crown is not obliged to prove every detail of the conspiracy or joint enterprise before the acts and statements of co-conspirators become admissible. The Crown must show simply that it is of the kind alleged and in general terms what the conspirators, including the accused, had the common intention of achieving. In assessing whether there is a joint enterprise the Court is concerned with the common intention to commit some offence (see Morris (Lee) at [15], [20] and [26]).

…

[19]     The independent evidence must show at least the essential matters which constitute the conspiracy or joint enterprise and also that, on the facts as known to the accused, what the enterprise or conspiracy has agreed to do is unlawful – see Archbold Criminal Pleading, Evidence and Practice (56ed

2008) at [34-13] and [34-60c]. It is also not necessary for an accused to know the identity of all the parties to the conspiracy or joint enterprise. It may be quite commonplace for a conspiracy to occur where no one person knows more than one other person involved in the conspiracy. As long as these individuals are aware that the enterprise goes beyond their agreement with  that  other  person  and  knows  in  general  terms  the  ambit  of  the conspiracy that is sufficient – see Archbold at [34-50].

[10]     In Morris, at [20], the Court said:

It is not necessary for the Crown to establish all the detail of the conspiracy, simply that it is of the kind alleged. The Crown must show in general terms what the conspirators, including the accused, had the common intention of achieving.

7 R v Messenger [2008] NZCA 13 at [11]; [2011] 3 NZLR 779 and R v Morris (Lee) [2001] 3 NZLR

759.

The evidence

[11]     I  will  first  consider  the  evidence  of  Mr  Williams’  membership  of  the

conspiracy alleged in count 2.  This covers the period from 2 January to 13 January

2009.  The essence of the Crown case is that there was a conscious common design involving Messrs Hart, Williams, Dodd and Clarke.   My present understanding of the case was that this was broadly along the lines that Messrs Hart and Williams would supply ContacNT tablets, containing pseudoephedrine, to Messrs Dodd and Clarke, and with the intention that the ContacNT tablets would in turn be sold to others by Messrs Dodd and Clarke, or one of the latter two.   There may be some refinements in relation to the precise involvement of some of the participants, but that conveys the essence.   It is an allegation of a conspiracy in respect of drug dealing  through  a  chain  of supply.    In  that  respect  it  is  broadly similar to  the conspiracy  in  Morris;  a  conspiracy  between  three  people,  with  two  of  them supplying  cocaine  to  the  third  alleged  member  of  the  conspiracy  with  an

understanding that the third member would on-sell it.8

[12]     In seeking to establish Mr Williams’ membership of the conspiracy alleged in count 2, Mr Smith relied solely on evidence of communications by telephone calls or mobile text messaging to or from Mr Williams.  The other “party” in all cases was Mr Dodd.

[13]     I describe the communications as being from one person to another although there may be issues as to the identity of the participants, at least in some cases. However, for the purposes of the present application refinements of this nature do not require investigation.  In particular, Mr Wharepouri responsibly accepted for the present hearing that phone numbers attributed to Mr Williams can be taken to be phone numbers for Mr Williams’ mobile phones.  In this context I therefore proceed on  the  basis  that,  for  example,  a  text  message  from  Mr  Dodd’s  phone  to  Mr Williams’ phone was a text message from Mr Dodd to Mr Williams.  And it may be inferred that it was received and read by Mr Williams.  Text messages from one of

Mr  Williams’  mobiles  can  be  taken  to  be  a  text  message  from  Mr  Williams.

8 See R v Morris (Lee) [2001] 3 NZLR 759 at [23]-[24].

Telephone conversations between Mr Dodd and Mr Williams were not recorded, but for present purposes I infer, except in the case of some very short calls (e.g. one of five seconds) that there was a conversation by telephone between Mr Williams and Mr Dodd at the time recorded and for the duration recorded.

[14]     The  communications  between  Mr  Dodd  and  Mr  Williams  do  provide reasonable evidence of  Mr Williams’ involvement in the conspiracy alleged in count

2.   I will provide some examples taken from the Crown’s schedule.   This is a schedule which includes the Police interpretation of the meaning of text messages and  Police  interpretation  of  what  are  alleged  to  be  code  words  for  ContacNT, relating to the number of wheels on a car.   In setting out some examples I will include the text with the Police interpretation including, in square brackets, words of

interpretation added by Police.9

[15]     Between 2 and 5 January there were communications between other alleged conspirators providing evidence of the conspiracy relating to the supply of pseudoephedrine.  This does not constitute proof of Mr Williams’ involvement but it is context in terms of the sequence of events involving Mr Williams.  On 5 January

2009 at 13:56:02 Mr Williams phoned Mr Dodd.   Mr Wharepouri submitted that something of this nature could not provide some proof on the issue of participation because the fact that Mr Williams knew Mr Dodd is acknowledged and there is no evidence of the content of the conversation.   However, as noted, the context is relevant.  Not much later on 5 January, at 15:56:51, Mr Dodd phoned Mr Williams. There was a conversation of 33 seconds in the course of which – at 15:57:14 – Mr Dodd sent Mr Williams a text message as follows:

Brother can we meet in Albany [with] that guy that wants to buy that car [4 wheels = 4 sets of ContacNT].  The only problem is he can’t come right up [to Whangarei]. Can we arrange it?

[16]     The same text message had been sent by Mr Dodd to Mr Williams at 15:52. It may be inferred that during the 33 second phone conversation there was a request

by Mr Williams to send it again.

9 As with all issues of fact being considered in this judgment, the Police interpretation would be a live issue before a jury.

[17]     There was a further phone conversation between Mr Williams and Mr Dodd on 5 January at 17:37:25.  This was a call made by Mr Williams.  On 6 January there was a text from Mr Dodd to Mr Williams stating that Mr Dodd’s “mate” wanted, in the Police interpretation, three sets of ContacNT on Friday.  On 8 January there were numbers of communications between other alleged conspirators providing further evidence of the alleged conspiracy in respect of ContacNT.   Then on 8 January, between 14:52:37 and 14:57:58 there were the following text messages between Mr Dodd and Mr Williams:

Dodd to Williams: The brother wants 13 [sets of ContacNT] tomorrow.

Williams  to  Dodd:  Brother  I  can  do  [supply]  eight  [sets  of  ContacNT]

tomorrow.

Dodd to Williams: Brother yes, is that the most he can supply. Williams to Dodd: Yes for a couple of days.

[18]     There were further communications of relevance between Mr Dodd and Mr Williams through to 11 January 2009.  The concluding text message from Mr Dodd to Mr Williams records, as interpreted:

The brother wants an 8 seater van [8 sets of ContacNT] tomorrow and then a

10 seater [10 sets of ContacNT].

The evidence : count 1

[19]     On count 1 the Crown contends that, as a central part of this conspiracy, Mr Hart supplied Mr Dodd with four sets of ContacNT tablets to be supplied to an associate of Mr Clarke in Meremere.  It is alleged that Mr Williams participated in this.

[20]     As earlier noted, the period of the conspiracy alleged in count 1 is between 27

December 2008 and 2 January 2009.  To be guilty as a conspirator it is not necessary that Mr Williams was a participant for the whole of the period alleged.  In respect of count  1,  the  evidence  that  I  regard  as  reasonable  evidence  of  Mr  Williams’

involvement comes firstly from communications between him and Mr Dodd on 1

January 2009.  But these communications need to be put into context.

[21]     Intercepted  communications  involving  Messrs  Dodd,  Clarke  and  Hart indicate that by around 11:00 pm on 1 January 2009 Mr Dodd had supplied four sets of ContacNT tablets to another person in Meremere.  Then at 23:07:12 Mr Dodd sent a text to Mr Hart as follows (and again using Police interpretation):

Heading  up  now  brother  with  paper  [money]  for  4  seater  [4  sets  of ContacNT] [This is my interpretation, not a Police interpretation.  I infer, as reasonable evidence, that “heading up” means heading up from Meremere to Whangarei].

Mr Hart replied to Mr Dodd three minutes later as follows:

Sweet brother.  Get in touch with Naz [Nelson Williams, the accused] when you get back.

Mr Dodd replied within approximately three minutes:

Sorted aye.

[22]     This cannot be relied on as evidence of Mr Williams’ participation in the conspiracy, and the Crown does not seek to do so.  But it provides the background to what followed which, on the basis of the presently unchallenged Crown evidence, was this:

a)       Two minutes after Mr Dodd told Mr Hart that it was “sorted” Mr Dodd phoned Mr Williams.  The call lasted 1 minute 34 seconds.  The call started at 23:13:14.

b)       This was followed by a phone call from Mr Dodd to Mr Hart.

c)       At 23:18 there were texts between Messrs Dodd and Clarke, with requests to telephone.

d)       At 23:18:49 there was a phone discussion between Messrs Clarke and

Dodd lasting 2 minutes 17 seconds.

e)       The phone conversation just mentioned was immediately followed by a phone call by Mr Dodd to Mr Williams, at 23:22:52.   This call lasted 7 minutes 24 seconds.

f)        Shortly after that telephone conversation Mr Dodd sent a text to Mr Clarke asking Mr Clarke to phone and this was immediately followed by a phone call from Mr Clarke to Mr Dodd which lasted 3 minutes

31 seconds.

g)       The Clarke/Dodd phone conversation was immediately followed by a phone call by Mr Dodd to Mr Williams of 1 minute 14 seconds, then a call by Mr Clarke to Mr Dodd of 1 minute 22 seconds, then a call by Mr Williams to Mr Dodd of 59 seconds.   That call ended at approximately 23:50:45; i.e. just before midnight.

h)Approximately eight minutes after midnight a series of text messages and  telephone  conversations,  between  Messrs  Dodd  and  Hart  and Dodd and Clarke, commenced.  These continued through to 2:09:36 on  2  January 2009.    The  text  messages,  according  to  the  Crown evidence, related to the price received for the ContacNT that had been supplied, or possibly about the price for a future supply.

i)         Then at 2:59:58 on 2 January 2009 there was a text from Mr Dodd to

Mr Williams as follows:

Im,  he  just wants  to see the  weight  [total  weight of  the

ContacNT capsules].  Paper [money] here later.

Four minutes later Mr Dodd telephoned Mr Williams and they had a conversation of 1 minute 43 seconds.

[23]     That is the last communication between Messrs Dodd and Williams.

[24]     I am satisfied that the communications between Messrs Dodd and Williams, even if considered in isolation, do provide reasonable evidence of Mr Williams’ participation in a conspiracy of the kind alleged.  This flows from the time at which

the communications were made, the repetition in the communications, the length of some of the telephone calls, in particular the call lasting 7 minutes 24 seconds, and with all of this concluding with the text message on 2 January recorded at [22]i). This conclusion is reinforced by two matters at least.  One is the evidence that can be considered at this stage in respect of the activities of other alleged conspirators.  That other evidence provides context.   It does not mean that the assertion of other conspirators about Mr Williams’ involvement (assertions by words or acts) are being relied on as part of the proof of participation.  The second reinforcing aspect is the evidence relating to count 2.   I am satisfied the Crown is entitled to rely on this evidence.

[25]     It is for these reasons I made the ruling that the Crown on both counts may adduce in evidence against Mr Williams the statements and acts of Messrs Dodd, Clarke and Hart.

[26]     It   is   important   to   emphasise   that   these   conclusions   are   preliminary conclusions solely for the purposes of determining admissibility.  And, as has been made clear, the standard of proof is reasonable evidence.  Had the matter proceeded to trial10 all issues would have remained alive – the issue of Mr Williams’ participation  on  which  this  ruling  has  been  made,  the  other  elements  of  the conspiracy charges, and a range of other issues of fact such as those relating to the intercepted  communications.    And  the  standard  of  proof  for  the  Crown  on  the

elements of the charges would be beyond reasonable doubt.

Woodhouse J

10  Following my ruling, but before delivery of these reasons, the Crown elected not to proceed on these counts against Mr Williams.