Tengu v The Queen

[2005] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

CA366/04

THE QUEEN

v

HARRY TE WHETU TENGU

Hearing:9 March 2005

Court:William Young, Randerson and Robertson JJ

Counsel:C M Clews for Appellant

D J Boldt for Crown

Judgment:14 March 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Robertson J)

Introduction

[1]        This is an appeal against conviction only on six counts of buying the precursor substance pseudoephedrine knowing that the substance was to be used in the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act 1975 contrary to s 12A(1)(b) of that Act.  The real issue was the fact that Mr Tengu’s trial was held at the same time as that of a co-accused, that severence was denied and there was a miscarriage of justice accordingly.

Background

[2]        In September 2003 Mr Tengu and his long-term de facto partner Rosemary Whareaitu were jointly charged with 56 offences under s 12A(1)(b) of the Misuse of Drugs Act 1975.

[3]        Following depositions and committal for trial, counsel for Mr Tengu applied for severance of the nine charges in which it was alleged that Mr Tengu had been the actual purchaser of the substance.  These purchases had occurred at various pharmacies in the Waikato between 26 April and 13 August 2003.

[4]        There was a pre-trial hearing on 26 July 2004 with a reserved decision on 4 August 2004.

[5]        In it, Judge Spear noted that the Crown case was essentially that the two accused had operated jointly as pseudoephedrine shoppers and supplied the product to another person for the purposes of manufacturing metamphetamine.

[6]        The judgment says:

[6]       ... The 56 counts relate to 56 separate purchases of pseudoephedrine‑based products from pharmacies between 17 January 2002 and 14 September 2003.

[7]       Of those 56 separate purchases, the Crown case is that nine purchases were made by Mr Tengu (which he has admitted) and the remaining 47 purchases were made by Ms Whareaitu (which she has admitted).  Of Mr Tengu’s nine purchases, five are alleged to have been on the same day as other purchases made by Ms Whareaitu.  In the case of two of those five purchases by Mr Tengu, Ms Whareaitu also made a purchase of the same product type, at the same pharmacy and within five minutes of Mr Tengu’s purchase. …

[8]       The Crown case is to be presented on the basis that this was a joint enterprise by (effectively) a husband and wife team. …

[7]        The Judge then reported:

[9]       In the course of the hearing it became necessary for Mr Clews to reshape his application for separate trials.  This was because the two Accused have been charged as jointly supplying the pseudoephedrine in each case.  What was eventually sought was an order that Mr Tengu be tried separately in respect of the counts relating to the purchases made directly by him (counts 48-56) as against the purchases made directly by Ms Whareaitu (counts 1-47).

[8]        The Judge considered the provisions of s 340 of the Crimes Act 1961.  He does not appear to have turned his mind to the fact that this statutory provision deals with joinder of counts and not joinder of offenders, the Judge noting that “severance is rarely granted in cases involving alleged joint ventures” which was in fact the proposed Crown case.

[9]        Judge Spear undertook his own assessment of the nature of the case and concluded:

[21]     I consider that there is insufficient evidence on which the Crown can allege that the non-purchasing accused in respect of any of these transactions is a party in respect of the sale of the purchase of pseudoephedrine based product either under s 66(1) or (2) of the Crimes Act.

[22]     Accordingly, I propose to order that in respect of counts 1‑47 (inclusive) Mr Tengu be discharged pursuant to s 347(1) of the Crimes Act 1961.  Similarly, in relation to counts 48-56 (inclusive), I propose to order that Ms Whareaitu be discharged.  Counsel have not had the opportunity to argue this particular point in the context of a discharge application under s 347(1) but it has been dealt with generally as part of the argument on severance.  The proposed orders for discharge will become effective at 3.00pm on Friday 6 August 2004 unless either Counsel notifies the Registrar beforehand that they wish to address me further on this issue.  In that event, the Registrar will arrange an urgent hearing before me early next week.

[10]      Next the Judge analysed the difficulties which could arise in respect of these two offenders being tried at the same time with regard to charges which were entirely separate on his own assessment of the position. He concluded that, after some editing of Ms Whareaitu’s statement, coupled with the direction that the statement in any event had no probative value as against Mr Tengu, a joint trial could be held.

[11]      The Judge concluded that, if there were separate trials, all the available evidence about each accused would be admissible at each trial, apart from out of Court confessional statements made by the other accused to the Police. 

[12]      The Judge said:

[28]     The evidence of the purchases made by one accused is probative of the case against the other as mentioned above.  If separate trials were ordered (1-47 // 48-56), the only difference in the evidence to be presented at each trial would be that in the trial of Mr Tengu alone the edited statement given by Ms Whareaitu would not be admissible.  However, a jury in a joint trial (counts 1-56 together) must be trusted to follow a direction that Ms Whareaitu’s statement is evidence only against her.

The trial

[13]      On this basis a trial took place before Judge MacLean at the District Court in Hamilton on 16 and 17 August 2003 with nine counts involving Mr Tengu.  In the course of that hearing, one count was not proceeded with, the jury found that two counts were not proved but it convicted on the other six.

[14]      Dealing with the fact that there were two accused, the Judge said in his summing up:

You need to look at each charge and each accused on a stand alone basis.  They’re not jointly charged but obviously there is a degree of overlap between the background events that you are entitled to take into account, to the extent that the overlap affects both accused.  And in particular I’m talking about things like the timing of purchases.  The reality is, we know they have been together for 18 years.  We don’t know what the dialogue between them is, what sort of contact there is, but one of the things you are entitled to look at is to say, although they are charged separately, one of the issues the Crown ask us to look at is the timing of these purchases.  In particular, where both of them are purchasing on the same day, or in close proximity to each other.

[15]      Earlier, in speaking of a schedule which the Crown had produced, the Judge said:

The schedule that you have got, that’s the mark two version, is there to assist you.  It’s prepared by the Crown, and it’s, as you know, an analysis, an attempt to link up the authorisations that Detective Kirk referred to, and the live counts (and in some cases now dead counts), and dates, and witnesses.  I think we have got to a stage where you can be reasonably satisfied that it logically ties together, but just treat it for what it is.  Don’t get too hung up on the schedule itself, simply use it as a guide, a summary, to enable you to establish the framework, and see where the various bits of evidence and witness names fit in.

…

There are the two accused here.  We have ended up with, by my count now, out of the total original, 35 charges against the accused Mrs Whareaitu, and eight against Mr Tengu. You need to look at each charge and each accused on a stand-alone basis.

[16]      The appeal really boils down to an attack on the refusal to sever Mr Tengu’s trial from that of the former co-accused, his long term de facto partner Ms Whareaitu, on the basis that her purchases were irrelevant to the case against him.  Accordingly, it was submitted, a substantial amount of evidence that the jury heard was inadmissible against him.  Although it was acknowledged that there were proper jury directions on this point, Mr Clews submits that there was no way that the illegitimate prejudice could be avoided and so his client was denied a fair trial and there was a miscarriage of justice.

The factual circumstances

[17]      From January 2002 until September 2003, Rosemary Whareaitu bought and on-sold pseudoephedrine based medicines on at least 38 occasions.  She admitted that she did this to get extra money and told the police she knew the medicine would be used in the manufacture of drugs.

[18]      In the course of a police interview at the time of her arrest, she also directly implicated Mr Tengu in this offending indicating that he, when short of money, would occasionally also make purchases. 

[19]      Ms Whareaitu’s defence at trial was that there was a doubt as to whether she knew what the products she was purchasing and on-selling were to be used for. In light of her admissions to the police this had problems.

[20]      Mr Tengu’s defence was that, although he bought the various products, he denied any on-sale.  He said that they had been bought either for his own use or for members of the family.  He said that he had suffered from influenza eight times during 2003.  An initial admission that he had sold medicine to another on one occasion was hastily retracted.

The out of court statements

[21]      At the trial involving the two separate defendants on stand-alone counts the out-of-court statements of each were inadmissible against the other. To strengthen the force of that requirement, Judge Spear ordered that those parts of Ms Whareaitu’s statement implicating the appellant should be edited out of the evidence to be given of her video interview by the Police.  Her assertions in this regard were not relevant to the case against her and were inadmissible against Mr Tengu.

[22]      A mistake was made during this process. The most incriminating passages were removed from the video interview. All potentially incriminating comments were excised from the transcript the jury was given, but one small sequence was inadvertently left on the video which the jury saw.  It was:

Detective:              Yeah. Who else in your family has been doing it?

Mrs Whareaitu:      Can’t say that, you already know. (Laughs)

Detective:              (Nods head).  That’s true.

Mrs Whareaitu:      Yeah.

Detective:              That’s true.

Mrs Whareaitu:      Yeah.

Appellant’s submissions

[23]      First it was submitted that the Judge had erred in failing to appreciate that this was not a trial involving joint charges but simply two individuals being tried at the same time in regard to their own individual offending under the same provisions of the Misuse of Drugs Act. 

[24]      Counsel referred to the classic decisions of this Court dealing with joint trials. He particularly referred to the assessment in R v Fenton and Fenton CA223, CA299/00 14 September 2000 which refers back to the comments of Turner J in R v Gillies and Jorgensen [1964] NZLR 709:

This was a case of joint adventure and near-conspiracy.  As Devlin J observed in R v Miller (1952) 2 All E.R. 667, 670 the principle in this sort of case is that justice ordinarily requires that the whole matter be tried as one case, and that it will need very exceptional circumstances before it is split up into two separate trials. Those cases must be rare indeed, in which fellow‑conspirators or joint adventurers can properly, in the interests of justice, be granted a separate trial.

[25]      In Fenton, the Court held:

[23]     This Court had occasion to revisit the subject in R v Brown (1987) 3 CRNZ 132 (CA).  This was not a case of a truly joint enterprise.  It was, however, a case in which, contrary to the view of the High Court, this Court held there was:

… very real danger that the jury will, in the unusual circumstances of this case and notwithstanding any warning by the Judge, use it (the inadmissible evidence), along with the legitimate circumstantial evidence, to draw an inference of guilt.

[24]     Finally, there is the recent decision in R v Dacombe and Jones (CA 130/99 and CA133/99) 8 July 1999, in which the Court put the matter in this way:

He (the Judge in the High court) acknowledged the principle, confirmed in R v Webb & Thompson (1953) NZLR 595, and R v Brown (1987) 3 CRNZ 132 (CA), that where the persuasive value of inadmissible evidence is out of proportion to the probative value of admissible evidence, severance may avoid injustice to one or more co-accused.

[25]     What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime … When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.

[26]     There may, however, be occasions when the weight of the inadmissible evidence, against that of the admissible, makes it unfair to an accused, notwithstanding the trial Judge’s directions, to expect the jury to act only on the evidence which is admissible.  Similarly, there may be cases in which the difficulties in isolating the admissible from the inadmissible make it unfair to expect the jury to undertake that exercise.  Those are the usual circumstances in which severance may be justified.  Ultimately the question is whether the applicant for severance can demonstrate some feature of the case which clearly outweighs the ordinary approach and the basis upon which it rests, and which therefore mandates severance in the overall interests of justice.  After verdict the same general considerations apply but, in order to succeed, the appellant must show that the joint trial has resulted in a miscarriage of justice.

[26]      Mr Clews’ submission was that, once the Judge had dismissed all the joint charges, there was no sound basis for the trials of the two separate accused to continue to be dealt with at the same time and that there could only be illegitimate prejudice flowing therefrom.

Crown Response

[27]      Ms Markham submitted that, even although there were no joint charges before the Court, it was appropriate for the two accused to be tried at the same time because of the degree of factual overlap and the relevance of each accused’s offending to the case against the other.  The Crown submitted that there was an identical modus operandi and that there was probative value in the activities of the other which outweighed any illegitimate prejudice.

[28]      The Crown argued that the effective trial issue in Mr Tengu’s case was whether the Crown had excluded the reasonable possibility that he was buying the products for his own use. The fact that the person with whom he lived was doing the same thing at the same time was of substantial probative value in that context. 

[29]      The presence in the household of a person who was at the same time buying such products in such quantities casts a shadow over the defence that he was doing the same but for therapeutic purposes.  The Crown further submitted that the fact that, of all the cold products which he could have purchased, his purchases were confined to three products which had featured prominently among those Ms Whareaitu was acquiring was relevant and admissible.

[30]      In particular it was submitted that the fact that Mr Tengu and Ms Whareaitu visited the same pharmacy on two identified occasions within five minutes of one another and purchased identical products was of real significance and probative.

[31]      All of these were matters which the Crown submitted the jury was entitled to take into account in determining whether his explanation for the purchases could reasonably be true.

Discussion

[32]      We are satisfied that, although the situation was somewhat unorthodox and the Crown case might well have been left to run on its original theory of a joint enterprise, even with separate counts against each about their individual purchases, no harm was occasioned.  Had there been two separate trials, evidence of the activities of the partner could have been called at each.  For the various reasons Ms Markham identified, the partners’ acts and omissions had probative value and could be heard by a jury in assessing the defence contention that Mr Tengu’s purchases were routine and innocent.

[33]      As to the possibility of illegitimate prejudice, although the Judge’s direction might have been more fulsome, the jury was adequately informed that what was said by an accused out of Court was evidence in that person’s case only and not otherwise.

[34]      The offences were separate. We do not accept that there was any serious likelihood that there was a conviction based on association. The jury were properly directed to look at each charge and each accused on a stand-alone basis.

[35]      The second aspect of the appeal was what counsel described as the Judge speaking of a “degree of overlap”.  We have concluded that this contention is misconceived. The issues on the trials of the individuals were not totally separate and discrete. Each needed to be viewed within a total evidential framework all of which was properly admissible on both.

[36]      The mistake with regard to the editing of the video tape was regrettable.  The making of deletions was a sensible precautionary measure taken to ensure that there was not before the jury evidential material which had no probative value.  The fact that there was a difference between what was left in the video and what was written in the transcript does not lead us to conclude that there could have been any miscarriage.

[37]      There is nothing in the conduct of the case, nor in the summing up, which would suggest that this oversight had any real influence.

[38]      The case against Mr Tengu was narrow and confined.  His explanation had to be assessed within a factual reality and not in an artificial vacuum.  Orthodox and sufficient directions were given about the admissibility of evidence.  They could have been more fulsome and focused but the essential principles of law were relayed.

Conclusion

[39]      In all the circumstances, we are satisfied that the six convictions were properly entered and the appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington