The Queen v Malcolm Stanley Smith
[2000] NZCA 21
•23 February 2000
NOT TO BE PUBLISHED UNTIL AFTER TRIAL
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 41/00 |
THE QUEEN
V
MALCOLM STANLEY SMITH
| Hearing: | 17 February 2000 |
| Coram: | Blanchard J McGechan J Fisher J |
| Appearances: | J.C. Pike & M.D. Downs for Crown |
| M.S. Gibson & A.M. Ives for Appellant | |
| Judgment: | 23 February 2000 |
| REASONS FOR JUDGMENT OF THE COURT DELIVERED BY FISHER J |
The appellant faced 24 charges of offences against the Misuse of Drugs Act. Two pre‑trial rulings were given in the High Court on 8 February 2000. In one the Judge upheld the admissibility of evidence of the appellant’s drug dealing activities captured by a video camera concealed on the person of an informant. In the other the Judge declined severance of the charges. The appellant has appealed against both rulings. At the conclusion of the appeal hearing we gave judgment as follows:
On the application for leave to appeal the s.344A ruling on the question of admissibility of the video tape evidence, leave is not granted. The Court is not satisfied that it is in a position to give a ruling on the limited basis on which the matter was before us. The trial Judge is able to re-consider the matter in the light of the evidence called or proposed to be called at trial.
Leave is given to appeal the order declining severance but that appeal is dismissed.
Written reasons will be issued in due course.
Our reasons for dismissing the appeal against refusal of severance now follow.
The Crown case is that over a period of ten years the appellant sold morphine sulphate tablets and acetyl chloride from his home in Palmerston North. Until February 1998 he normally sold to heroin users who combined the two substances to form and self-administer heroin before leaving the appellant’s premises.
The Crown allege that the users included one man named Perkins and another named Bright. The appellant formed a close personal relationship with both. He is said to have supplied Bright over a period of three years from 1990 to 1993 (count 3) at which point Bright went overseas. When Bright returned in 1999 the supplies resumed including a series of specific sales from 15 June 1999 to 18 August 1999 (counts 4 to 21). The appellant is said to have supplied Perkins from September 1998 to 11 February 1999 (counts 1 and 2).
Those two individuals are alleged to typify a large number of purchasers. The indictment therefore includes counts of a more general nature, namely possession for supply on 19 August 1999 (counts 20 and 21), permitting premises to be used for the manufacture and administering of heroin between 14 April 1998 and 19 August 1999 (counts 22 and 23) and supplying persons unknown between 1 January 1990 and 19 August 1999 (count 24).
At the forthcoming trial the evidence to be relied upon by the Crown includes Perkins and Bright as Crown witnesses, evidence as to the drugs and other incriminating objects found in the appellant’s home during a series of warranted searches in 1999, and an asset accretion analysis of the appellant’s affairs over the whole of the ten year period in question.
In the High Court the appellant applied to have the counts expressly naming Perkins (counts 1 and 2) heard separately from the others (counts 3 to 24 inclusive). In his judgment the Judge accepted that there would be the prejudice inherent in having two informants give evidence about separate incidents. However, he considered that that this was outweighed by other considerations. The evidence of both informants would be relevant to counts 22 to 24. Bright’s evidence could not be viewed as an objectionable way of putting before the jury an admission as to offences relating to Perkins. The evidence in support of the Perkins and the Bright charges involved striking similarities which justified mutual admission on a similar fact basis.
In this Court Mr Gibson renewed the submissions made in the High Court. A composite trial would involve the prejudicial bolstering of one allegation by reference to evidence given with respect to another. The Perkins and Bright charges were logically distinct. There were no striking similarities as between the two informants.
We are not persuaded that there are grounds for interfering with the way in which the Judge chose to exercise his discretion. The evidence of both informants is logically probative as to counts 22 to 24. Viewed in combination there are significant similarities between the incidents relating to each of the two informants. They include the way in which the appellant supplied only to users; his obsession with the risks of interception and surveillance devices; his technique of communicating in hand signals during the negotiation of drug transactions; his sale of morphine sulphate tablets and acetyl chloride in combination; his use of 173 Featherston Street to make the sales and, with certain exceptions in the latter period, his allowing user‑purchasers to manufacture and use heroin on his own premises. Evidence relating to all counts could be viewed as a continuous sequence of drug activity over a period of years involving purchase and use by a range of users until a police raid on 11 February 1998, the presence of both Perkins and Bright on the occasion of that raid, and then the use of Bright to effect sales off the premises as a reaction to that raid. These are all reasons for declining severance.
It has not been shown that the refusal of severance was vitiated by error of principle or that it was plainly wrong. We could see no justification for interfering with the decision to refuse severance at first instance and dismissed the appeal.
Solicitors:
Crown Law Office, Wellington for Crown
P. Coles, Palmerston North for Appellant
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