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Haunui v R [2019] NZCA 679 (19 December 2019)

Last Updated: 20 December 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA49/2019
[2019] NZCA 679

	BETWEEN	DENNIS HAUNUI Appellant
	AND	THE QUEEN Respondent

Hearing:	26 September 2019
Court:	Clifford, Ellis and Peters JJ
Counsel:	A J Bailey for Appellant D G Johnstone and S A Rankin for Respondent
Judgment:	19 December 2019 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Peters J)

[1] The appellant, Mr Haunui, appeals against his conviction on several charges following a jury trial in January 2019 before Judge Kellar in the District Court at Christchurch.
[2] The issues on appeal are whether the Judge erred in holding that text messages which Mr Haunui sought to adduce were inadmissible and, if so, whether that error created a real risk the outcome of the trial was affected, so that a miscarriage of justice has occurred.^[1]

Background

[3] Mr Haunui was convicted of possession of a class A drug (methamphetamine) for the purpose of supply; possession of an offensive weapon (knuckle dusters); and possession of a class C drug (cannabis). He was acquitted on a charge of possession of a utensil for the purpose of the commission of an offence, namely a pipe used to smoke methamphetamine.
[4] On 8 February 2019 the Judge sentenced Mr Haunui to eight months’ imprisonment, cumulative on an existing sentence of imprisonment.^[2] Although the Judge did not identify the sentence imposed on each offence, it is apparent from Mr Haunui’s criminal history that the Judge attributed eight months to the methamphetamine offending, and one month (concurrent) to each of the other charges.
[5] The principal focus at trial, and on appeal, is the conviction for possession of methamphetamine for the purpose of supply. The appeal against the other convictions stands or falls with that charge. We record also that the issue at trial was the element of “possession”. Mr Haunui did not dispute he had been offering to supply methamphetamine “for the September period”, and so might have been guilty of that offence had he been so charged.
[6] The charges arose in this way.
[7] At approximately 12.30 am on 4 September 2016, Constables Kingi and Sollitt stopped the vehicle Mr Haunui was driving and in which Ms Jacquelene Edmonds, Mr Haunui’s then partner, was the front seat passenger. The vehicle belonged to a friend of Ms Edmonds. The police IT system showed the vehicle’s registration had expired. When speaking to Mr Haunui, Constable Kingi observed the knuckle dusters in the vehicle, adjacent to the hand brake. Constable Kingi detained Mr Haunui, indicating he was invoking the police’s search and seizure power. The search of the vehicle located:

(a) A black leather bag, in the driver’s footwell, partially under the driver’s seat. The bag contained a makeup bag holding $1,750 in cash, a bottle containing two point bags, holding a combined weight of 0.94 grams of methamphetamine, and another point bag holding 1.68 grams of cannabis.

(b) A first aid kit in the front seat passenger footwell which contained point bags.

(c) A set of digital scales, and a sunglasses case containing the pipe, each of which Constable Kingi thought had been in the first aid kit.

(d) A notebook containing notes and telephone numbers.

[8] Constable Kingi asked Mr Haunui to whom the various items belonged. Mr Haunui said they were his and that he would “take the rap for everything in the car”. Constable Kingi later asked Mr Haunui what he meant by that, to which Mr Haunui did not respond. Mr Haunui did say, however, that the knuckle dusters were not his and were in the car when he and Ms Edmonds borrowed it.
[9] Mr Haunui was charged with the various offences the following day. Ms Edmonds was not charged.
[10] Subsequent analysis revealed Ms Edmonds’ fingerprints on the scales, and on and in the notebook. It was accepted that the notebook was not a “tick” book, so little turns on it. Mr Haunui’s fingerprints were not, however, found on any of the items.
[11] An agreed statement of facts recorded that Mr Haunui had a conviction for offering to supply methamphetamine, evidenced by text messages in March and April 2016, and Ms Edmonds convictions for possession of methamphetamine for supply and of utensils for consuming methamphetamine. Ms Edmonds’ convictions were in respect of offending in August 2017, so post-dated the vehicle stop.
[12] The police obtained production orders in respect of the cellphones in Mr Haunui’s and Ms Edmonds’ possession on 4 September 2016 (Haunui phone and Edmonds phone respectively). At trial the Crown adduced in evidence both the March/April 2016 texts, on which Mr Haunui’s previous conviction for supplying methamphetamine was based, and the texts recovered from his phone seized on 4 September 2016, covering the period 31 August to 4 September 2016.
[13] The Crown did not produce any texts from the Edmonds phone. On the face of it, Ms Edmonds sent the occasional text from the Haunui phone but nothing turns on that.

Trial

[14] To establish possession, the Crown was required to prove that Mr Haunui knew of the presence of the methamphetamine and that it was a controlled drug, that Mr Haunui had control of the methamphetamine or the ability to exercise control, and that he intended to exercise control.
[15] The Crown case seems principally to have been that Mr Haunui was in sole possession of the methamphetamine (and other items). The Crown did not, however, rule out that Mr Haunui and Ms Edmonds may have been in joint possession. Joint possession would require that Mr Haunui intend to exercise control in conjunction with Ms Edmonds. Mr Haunui would be “in possession” in either case.
[16] Mr Haunui in effect admitted offering to supply (the same offence for which he was convicted earlier in the year). But Mr Haunui sought to advance a defence that there was a reasonable possibility the methamphetamine was in Ms Edmonds’ sole possession.
[17] Coming to the ruling under appeal, the Crown called Detective Sergeant (DS) Geoffrey Rudduck to give evidence as to methamphetamine dealing generally, and to assist the jury to “decode” the texts. In his evidence in chief, DS Rudduck referred to several of the March/April 2016 texts for general purposes associated with drug dealing, for example to explain the use of the phrase “a Nike” as referring to a purchase on credit: credit — tick — the Nike “swish”.
[18] DS Ruddock commented more specifically on the significance of a number of the 31 August–4 September 2016 texts for the charges Mr Haunui was facing at trial:

(a) 31 August 2016 at 21.11.20: to Mr Haunui: “See you about six cuz? Just bring a Q. Chur my bro”.

DS Ruddock said “a Q” was slang for a quarter of a gram of methamphetamine which the sender was asking Mr Haunui to bring with him.

(b) 1 September 2016 commencing 04.22.44: from and to Mr Haunui: Mr Haunui says “Got sum ladys”. Mr Haunui is then asked where he is, he tells the person he will be home in an hour and the person says he will see him then.

DS Ruddock said a “lady” is a reference to a quarter of a gram of methamphetamine which, by this text, Mr Haunui has indicated he has for sale.

(c) 2 and 3 September 2016: to and from Mr Haunui:

At 09.10.42 on 2 September 2016 Mr Haunui is asked: “Got lady?”.

On 3 September 2016 at 11.29.57: Mr Haunui is asked by the same phone number: “Do you want to do the same az yesterday bro”, and at 15.02.24 that day: “Should I come to you bro?”

At 17.05.19 Mr Haunui replies: “Up 2s bruv got 2 ladys an one 2 go”.

DS Ruddock said Mr Haunui is saying in this text, some seven and a half hours before the stop and search, that he has two quarter grams of methamphetamine, and one is for sale.

(d) Late on the evening of 3 September 2016, from 19.49.17 to 23.18.41 (approximately an hour before the stop and search), Mr Haunui and a “Bute” exchange voice calls, messages and texts. DS Ruddock did not comment on the texts in detail. It appears he may have intended to, but the transcript shows Mr Bailey, counsel for Mr Haunui at trial (and on appeal), objecting to this, following which Ms Boshier moved to another topic. These texts appear to reflect “Bute” telling Mr Haunui at 19.56.13 where he was, after which the exchange includes the following communications:

21.48.00	To Mr Haunui	Hey brava it Bute let me know if algud again to come c u like before if can
21.50.27	To Mr Haunui	Swt as bruv jst c da uncle swt
21.51.20	To Mr Haunui	How long you think brava
21.56.13	To Mr Haunui	Probably want same as before brav
23.08.18	To Mr Haunui	Where u at brava
23.10.16	To Mr Haunui	U far brav
23.18.41	To Mr Haunui	Sori g already sorted brother but I’ll be in touch my brava

[19] In her closing address Ms Boshier submitted, with reference to those texts:

... You might think Bute is pretty keen for Mr Haunui to come over and why might that be? Well he referred to the order he had in with Mr Haunui at 9.56 pm. “Probably want same as before bruv.” How do we know that is an order? Because he cancels it later on in the night at 11.18 pm after Mr Haunui has taken too long to deliver. “Sorry G, already sorted bro’ but I’ll be in touch my brother.” What’s Mr Haunui selling that night? 5.05 pm, “Ladies.”

[20] Mr Bailey sought to cross‑examine DS Rudduck on particular texts deriving from the Edmonds phone. These texts (Edmonds texts), sent on 1 and 3 September 2016, were from third parties to Ms Edmonds, and from Ms Edmonds in response.
[21] There is no dispute that, on their face, some of the Edmonds texts (which are listed below) evidence third parties seeking supply of methamphetamine, and Ms Edmonds responding in a way consistent with a willingness to do so. By way of example, the sender of the first text listed asks “... what’s cheapest you can do a whole for?” to which Ms Edmonds responds “... i think 85 a litre paint ...”. Crown counsel on appeal, Mr Johnstone, acknowledged these texts concerned the supply of methamphetamine.
[22] Ms Boshier objected to Mr Bailey’s cross-examination of DS Rudduck on the basis that the Edmonds texts were “hearsay statements” as defined in s 4 of the Evidence Act 2006 (Act), and inadmissible accordingly. In accepting Ms Boshier’s submission, the Judge appears to have been satisfied the texts were hearsay statements, and inadmissible as Ms Edmonds was not to be called as a witness.
[23] On appeal, Mr Bailey submits the Judge’s ruling was in error, as the Edmonds texts were not hearsay statements: alternatively they were admissible under s 18 of the Act.

Edmonds texts

[24] The Edmonds texts are as follows:^[3]

Date	Time	From	To	Text Message
01.09.16	21.10.48	DB	JE	II just come grab coin haha cause I needa a puff lol hahah but what’s cheapest you can do a whole for?
01.09.16	21.14.28	JE	DB	yep algud an sorry i didnt mean muck u round that never happens im gutterd; i think 85 a litre paint; txt wen u 2 mins away k
03.09.16	00.34.19	JE	MM	its jakz;r u algud or u need
03.09.16	07.07.12	JE	S	hi sarah its jacque hey can u get any green?
03.09.16	07.11.32	JE	ST	cuz u got gold or bud?
03.09.16	08.57.24	JE	UKP	fuk all; i was jus txtn to c if u had any gunj; ive got 2 ladis if u knw any1 25;
03.09.16	09.27.15	DB	JE	Can you tick a. Till tomorrow?
03.09.16	13.42.21	JE	DB	sorry we been busi; did u still want?
03.09.16	19.04.23	DB	JE	Can you do like a dot n half or something till tomorrow night?
03.09.16	19.16.00	JE	DB	hw u gna pay it tmra its sun?
03.09.16	19.17.06	DB	JE	Il sort money
03.09.16	19.22.48	JE	DB	i cant nike cse wont b able 2 reload an probli gna need 2 2nyte; sort ur paper 2nyte man!!
03.09.16	19.22.52	DB	JE	I’m getting some coin tomorrow if ya can do it can ya drop to me at mine just off Bower
03.09.16	19.33.21	DB	JE	Aw I can tonight only got fid

Hearsay statements

[25] Section 17 of the Act provides that a hearsay statement is inadmissible subject to any contrary provision. Accordingly, the first issue to be considered on appeal is which, if any, of the Edmonds texts was a “statement” and, if so, whether that text was a “hearsay statement”. If so, it would be admissible only in the circumstances of s 18 of the Act, to which we refer shortly. A text which was not a hearsay statement would be admissible if relevant and not unfairly prejudicial.^[4]
[26] “Statement” and “hearsay statement” are defined in s 4 of the Act:

statement means—

(a) a spoken or written assertion by a person of any matter; or

(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter

hearsay statement means a statement that—

(a) was made by a person other than a witness; and

(b) is offered in evidence at the proceeding to prove the truth of its contents

Submissions

[27] Mr Bailey submitted the texts to Ms Edmonds did not contain assertions and so were not statements.^[5] Mr Bailey also submitted the texts from Ms Edmonds were not statements for the same reason.
[28] Alternatively, Mr Bailey submitted any text that constituted a statement was not a hearsay statement, in that it was not to be relied on to prove the truth of its contents but as circumstantial evidence from which the jury could infer Ms Edmonds had offered to supply methamphetamine close to the time at which the police stopped the vehicle.
[29] Mr Johnstone accepted a text-by-text analysis would be required to determine whether each constituted a statement within the definition in the Act and, if so, the purpose for which it was adduced. Mr Johnstone did not seek to undertake that analysis but submitted that, even if the Edmonds texts were not hearsay statements and so were admissible, there was no real risk the outcome of the trial was affected as a result of the Judge’s ruling.

Discussion

[30] The texts to Ms Edmonds were not statements, as they did not contain assertions. Nor were they hearsay, as they were not to be offered to prove the truth of their contents.
[31] Likewise the texts from Ms Edmonds, with the exception of her text at 8.57 am on 3 September 2016 (8.57 am text), saying:

fuk all; i was jus txtn to c if u had any gunj; ive got 2 ladis if u knw any1 25;

[32] The content of this text is similar to one sent from the Haunui phone later that day. As noted, in discussing that text, DS Ruddock gave evidence that a “lady” or “ladies” is code for quarter of a gram of methamphetamine. If so, the 8.57 am text does contain an assertion, to the effect “I am in possession of methamphetamine and I am able to supply”. The text would also be hearsay, as it would be offered to prove the truth of its contents. Accordingly, it would be admissible only if s 18 of the Act were satisfied.
[33] We add that the Judge identified this text in particular as a hearsay statement. We agree. Subject to this, however, the Edmonds texts were admissible as they were not hearsay statements, and were relevant and not unfairly prejudicial.

Unavailable as a witness

[34] As a hearsay statement, the 8.57 am text would only be admissible in the circumstances of s 18, which provides:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either—

(i) the maker of the statement is unavailable as a witness; or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

(2) This section is subject to sections 20 and 22.

[35] Section 16(2) provides:

16 Interpretation

...

(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—

(a) is dead; or

(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or

(d) cannot with reasonable diligence be identified or found; or

(e) is not compellable to give evidence.

[36] Mr Bailey submitted to us that Ms Edmonds was unavailable as a witness for the purposes of s 18(1)(b)(i) because, prior to trial, her solicitor had advised she would refuse to answer any questions put to her on the ground that such might incriminate her. Mr Bailey submitted this was sufficient to bring Ms Edmonds within s 16(2)(e), because she could not be compelled to give evidence.
[37] Sections 71 to 76 of the Act address the eligibility and compellability of witnesses. None of these provisions render Ms Edmonds ineligible or uncompellable. Mr Bailey submitted, however, these provisions are not exclusive, and a witness may be unavailable for the purposes of s 18 if he or she cannot be compelled to give the evidence sought, as would be the case if Ms Edmonds declined to answer questions when giving evidence.
[38] In support of his submission, Mr Bailey referred us to the following passage in this Court’s judgment in King v PFL Finance Ltd:^[6]

[49] Mr Chesterman submitted Mr Ellis was not “unavailable as a witness” for the purposes of s 18(1)(b)(i). We do not accept that submission. By reason of s 16(2)(e) of the Evidence Act, a person is “unavailable as a witness” if the person “is not compellable to give evidence”. We do not consider compellability for the purposes of s 16(2)(e) to be wholly defined by ss 71 to 75 of the Act. Rather, we agree with the commentary in The Evidence Act 2006: Act and Analysis that s 16(2)(e) “may also result in the Court’s treating witnesses who are excused from testifying ... as ‘unavailable’”.

[39] Mr Bailey submitted the present case was on “all fours” with King as Ms Edmonds was entitled to assert privilege against self-incrimination and her lawyer had said she would do so.
[40] The situation in King was different from this case. In King, the defence had summonsed a solicitor who had previously acted for the plaintiff, seeking to have the solicitor give evidence of his communications with the plaintiff. When counsel for the defendant sought to call the solicitor at trial, the plaintiff asserted his privilege in his communications with the solicitor, pursuant to s 54 of the Act. The Judge (Peters J as it turns out) upheld the plaintiff’s objection and declined to allow the solicitor to give evidence. As appears from the passage quoted, this Court was satisfied that in those circumstances the solicitor was “unavailable”.
[41] The important distinction between this case and King is that the defendant had summonsed the solicitor. The decision as to the solicitor’s availability or otherwise followed from events occurring at the trial itself. The client asserted privilege. The Judge upheld it.
[42] In this case, there can be no certainty as to how matters would have developed had Ms Edmonds been summonsed to appear at trial. Mr Bailey submitted it should not be necessary for a party to take this step in a case where the outcome is a foregone conclusion, that is Ms Edmonds would refuse to answer questions.
[43] We do not accept this submission. We do not consider Ms Edmonds could be treated as unavailable as a witness only on the basis of her lawyer’s advice prior to trial. In our view, at the very least it would be necessary to have summonsed Ms Edmonds, with her availability or otherwise to be determined by reference to events thereafter, as in King.
[44] As we do not consider Ms Edmonds was unavailable as a witness, the 8.57 am text was inadmissible. References to the Edmonds texts from hereon exclude the 8.57 am text.

Real risk

[45] We must allow the appeal if satisfied the Judge’s error in excluding the Edmonds texts has created a real risk the outcome of the trial was affected, and whether there is a reasonable possibility another verdict would have been reached but for their exclusion.^[8]
[46] Mr Bailey submitted there was such a risk. Mr Bailey submitted that Mr Haunui’s conviction bordered on inevitable in the absence of the Edmonds texts but there was a reasonable possibility of an acquittal had the Edmonds texts been before the jury, as they would have added considerable weight to other evidence pointing to Ms Edmonds being in possession, and on which Mr Bailey could make a submission to the jury there was reasonable doubt as to whether Mr Haunui was in possession, even joint possession. This other evidence comprised Ms Edmonds’ fingerprints alone being on the scales, the location of the scales and point bags in her footwell, the fact the cash was in a make-up bag and, on Mr Bailey’s submission, the larger bag containing the drugs and cash was of a kind more likely to be used by a woman than a man. Ms Edmonds’ conviction for possession for supply was also the most relevant of those in the agreed statement of facts. Mr Bailey submitted that had the jury had all, rather than just some, of this evidence, it might have considered it reasonably possible Ms Edmonds alone was in possession of the methamphetamine.
[47] Mr Bailey also submitted that the Crown would not have objected, let alone so strongly, to the Edmonds texts if it thought their admission would have no effect on the outcome of the trial. In our view, nothing turns on the fact the Crown objected to the admission of the evidence at trial. Crown counsel is entitled to object to evidence he or she considers inadmissible, regardless of how admission of the evidence might be expected to affect the verdict.
[48] So we turn to the question as to whether there is a reasonable possibility another verdict would have been reached, that is a verdict that Mr Haunui was not guilty of the possession of the methamphetamine found during the stop and search for the purposes of supply, if the evidence comprising the content of the Edmonds texts, and the inferences that could fairly be drawn from them, had been before the jury.
[49] In our view, albeit without the benefit of expert evidence as to the meaning of the Edmonds texts, but with the benefit of considerable exposure at trial to such texts, we think the Edmonds texts provide evidence of similar dealing in methamphetamine as do the texts and messages to and from Mr Haunui in the days and hours prior to the stop and search. We have given one example in [21] above. Another is Ms Edmonds’ reference to “nike” in response to an obvious request for supply of methamphetamine on credit (see the text on 3 September 2016 at 19.24.28).
[50] In addition to showing a similar pattern of involvement in drug dealing, actual or attempted, we note two following aspects of the evidence.
[51] The first is the reference at 13.42.21 on 3 September to “we been busi”. In our view a reasonable and obvious inference is that “we” is Ms Edmonds and Mr Haunui.
[52] Secondly, there is no evidence suggesting Ms Edmonds was offering to supply methamphetamine at a point when Mr Haunui was not, or had said he could not. Such evidence would have provided some support for the proposition the methamphetamine found in the car was Ms Edmonds’ alone. Its absence tends to suggest the contrary.
[53] Nor do we think the admission of the Edmonds texts would have materially altered the case, in terms of its strengths or weaknesses, against Mr Haunui made by the Crown on the basis of the rest of the evidence. In particular, we note the defence placed considerable reliance on the absence of any fingerprint or other forensic evidence linking Mr Haunui to the methamphetamine and other objects found in the car. Indeed, at the trial, by far the largest part of the evidence was expert fingerprint evidence given by both Crown and defence witnesses. The availability of the Edmonds texts would not have altered the task the jury faced in determining the significance of that evidence, in particular as it was relied on by the defence as tending to exculpate Mr Haunui.
[54] The Crown acknowledged from the outset that joint possession was a realistic possibility, notwithstanding that Ms Edmonds had not been charged. Accordingly, even if the Edmonds texts had been in evidence we do not think there is a reasonable possibility a different verdict against Mr Haunui would have been reached, notwithstanding that we accept the jury would most likely have done so on the basis of an implicit finding of joint possession.

Result

[55] The appeal against conviction is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

^[1] Criminal Procedure Act 2011, s 232(2)(c).

^[2] R v Haunui [2019] NZDC 2095.

^[3] “JE” is a reference to Ms Edmonds and “UKP” to an unknown person.

^[4] Evidence Act 2006, ss 7 and 8.

^[5] R v Holtham [2007] NZHC 2153; [2008] 2 NZLR 758 (HC) at [44]; and Preston v R [2016] NZCA 568.

^[6]7 King v PFL Finance Ltd [2015] NZCA 517 (footnote omitted).

^[8] Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [29]; and Misa v R [2019] NZSC 134 at [48].

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