Goffe v R [2011] NZCA 186; [2011] 2 NZLR 771 (16 May 2011)

Last Updated: 25 January 2018

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/2011
CA217/2011 [2011] NZCA 186

BETWEEN JOSEPH TE AHU GOFFE Appellant

AND THE QUEEN Respondent

Hearing: 3 May 2011

Court: Wild, Venning and Courtney JJ Counsel: B J Hunt for Appellant

D R La Hood for Respondent

Judgment: 16 May 2011 at 10.30am

_{JUDGMENT OF THE COURT}

A Leave to appeal the decisions of Judge McKegg of 29 October 2010 and

Judge Zohrab of 18 March 2011 is granted.

B. The appeal against the decision of Judge Zohrab dated 18 March 2011 is dismissed.

C. The appeal against the decision of Judge McKegg dated 29 October 2010 is allowed in part. The first letter is admissible. The content of the second letter is not.

D. Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or

GOFFE V R COA CA195/2011 [16 May 2011]

other publicly available database until final disposition of trial.

_{Publication in Law Report or Law Digest permitted.}

REASONS OF THE COURT

_{(Given by Venning J)}

Introduction

[1] The appellant is for trial on 23 May 2011 in the District Court at Nelson. The charge is that, together with William Shane McKay, he wilfully attempted to pervert the course of justice.

[2] There have been a number of pre-trial applications. In a decision delivered on 29 October 2010 Judge McKegg ruled two letters authored by the co-accused Mr McKay were admissible as evidence against the appellant.

[3] On 18 March 2011 Judge Zohrab granted leave to the Crown to produce a copy of a certificate of conviction for Mr McKay to confirm his guilty plea to the charge of wilfully attempting to pervert the course of justice.

[4] The appellant seeks leave to appeal both pre-trial rulings.

Background

[5] On 9 October 2008 the police seized 86 cannabis seedlings from the appellant’s property at Motueka. Shortly afterwards the appellant was charged with cultivating cannabis. He instructed Mr Sandston, a lawyer in Nelson, to represent him.

[6] On 5 December 2008 Mr Sandston received a letter signed by Willy McKay. The letter was addressed “To whom it may concern”. In the letter Mr McKay said that the 86 seedlings found at the appellant’s property were his and gave an explanation as to how the seedlings came to be at the appellant’s property.

[7] On 8 December 2008 Mr Sandston wrote to the Nelson Police Prosecution

Service enclosing a copy of Mr McKay’s letter.

[8] On 13 February 2009 the police executed a search warrant at the appellant’s property. They found a further letter in an envelope on the mantelpiece. The envelope was dated 2 February 2009. The name W S McKay was written on the envelope. The letter started “Dear Fish”. “Fish” is the appellant’s nickname. The letter was signed Willy. The gist of the letter was that if they were not going to believe him, the appellant was going to have to try “another angle”. The writer suggested the appellant’s partner Shelley should “take the rap”.

[9] On 19 February 2009 the police disclosed the second letter to Mr Sandston. [10] On 9 March 2009 the appellant pleaded guilty to the cultivation charge.

[11] In May 2009 the appellant was charged that, together with William Shane McKay, he wilfully attempted to pervert the course of justice in which Mr McKay falsely admitted the cultivation of 86 cannabis seedlings so as to persuade the police to discontinue a prosecution against the accused.

[12] The co-accused, Mr McKay, was also charged and pleaded guilty to wilfully attempting to pervert the course of justice.

The 29 October 2010 decision

[13] As the appellant challenged the admissibility of the two letters, the Crown applied for an order under s 344A of the Crimes Act 1961. Judge McKegg noted that s 12A of the Evidence Act 2006 (the Act) retained the common law rules relating to the admissibility of statements of co-conspirators or persons involved in a joint criminal enterprise. He considered that the threshold issues identified by this Court in R v Messenger¹ were satisfied. The Judge concluded that the letters were admissible.

The 18 March 2011 decision

[14] The Crown sought to introduce evidence of Mr McKay’s conviction as proof that Mr McKay wrote the letter claiming ownership of the cannabis seedlings. The Crown relied on ss 49(1) and 139 of the Act.

[15] Judge Zohrab considered it well established that the conviction of a co- offender was admissible as conclusive proof of the co-offender’s guilt. There was nothing in this case that compelled him to conclude otherwise. He granted leave for the Crown to produce a copy of the certificate of conviction for Mr McKay.

Preliminary matters

[16] The applications for leave are out of time. The Crown does not oppose an extension of time but opposes the grant of leave on the grounds that the merits of the appeal do not support the grant of leave.

[17] Both parties approached the hearing before Judge Zohrab and this application on the basis that the co-conspirators exception to the rule against hearsay is applicable to the charge faced by the appellant and the issue of admissibility of both letters.

Is the certificate of conviction admissible?

[18] It is convenient to deal with the admissibility of Mr McKay’s conviction first. Ms Hunt referred to a number of decisions preceding the Act to support her submission that the law was unsettled as to whether the evidence of Mr McKay’s conviction was admissible against the appellant and that the conviction could not be used to prove Mr McKay wrote the letters.

[19] Ms Hunt also submitted that even if s 49 permitted admission of the conviction, it was inadmissible as its unfairly prejudicial effect outweighed any probative value: s 8.

[20] We did not find Ms Hunt’s reference to the authorities pre-dating the Act helpful. The starting point must be the relevant provisions of the Act. Section 49 expressly provides that evidence of the fact of conviction, if not excluded by other provisions of the Act, is admissible in a criminal proceeding and proof that the person has been convicted is conclusive proof that the person has committed the offence.

[21] This Court confirmed the effect of s 49 in the case of R v Walker:²

[11] ... [T]he legislature, in enacting s 49, clearly intended previous convictions to be admissible if relevant, but subject to other exclusionary considerations in the Act.

[12] The Law Commission report on the Evidence Act confirms a policy choice was taken:

233 The Law Commission considers that there are at least three policy reasons why convictions should be admissible in criminal proceedings:

• Time and expense will often be saved, since making convictions admissible would avoid forcing a party to litigate a matter that has already been resolved.

• It makes available evidence that is not only relevant, but also highly probative, since guilt will already have been established to the criminal standard of beyond reasonable doubt.

• Not to admit such evidence would run contrary to the policy of the criminal justice system that a criminal conviction is sufficient basis to impose grave penalties.

...

235 The party seeking to offer evidence of the prior conviction of any person will be required to identify the issue to which the conviction is relevant. ... if a prior conviction is relevant to an issue in the case, for example the conviction of a third party for theft to support a charge of being an accessory after the fact, it is likely to be admissible.

(New Zealand Law Commission Evidence: Reform of the Law

(NZLC R55 Vol 1 1999.)

(emphasis added)

[22] The evidence of the conviction may be admitted in a number of ways. In this case the Crown intends to produce a certificate of conviction under s 139(1)(a) confirming that Mr McKay pleaded guilty to a charge of:

Wilfully attempted to pervert the course of justice by causing a letter to be delivered to police in which William Shane McKay falsely admitted the cultivation of 86 cannabis seedlings that were in fact being grown by Joseph Te Ahu Goffe.

[23] Proof of conviction of that offence by a certificate in those terms under s 139(1)(a) would, subject to s 49(2), conclusively prove the conviction and particulars of the charge, including that Mr McKay caused the first letter to be written.

[24] Ms Hunt submitted that, despite s 49, the common law rule of admissibility of a conviction was expressly left open by this Court in the case of R v Fraser.³ She sought to support that submission by reference to the commentary on s 49 in Adams on Criminal Law at EA 49.03.⁴ However, as Mr La Hood pointed out, the submission does not accurately state the law. In R v Fraser this Court first noted that the conviction of a co-accused could be proved by agreement or admission in terms of s 9 or by certificate under s 139 of the Act. The Court then went on to consider whether the Judge could have directed the jury that, as a matter of Court record, the co-accused had been convicted on count 1 and observed:⁵

This was said to be a “common law rule” of evidence in Nandan at [19]. What we are unsure about, and have had no submissions on, is whether that common law rule survives the enactment of the Evidence Act, in light of s 12.

[25] The only issue left open was the practical issue of whether the co-accused’s conviction could be proved by direction in that way. The preceding passages from the judgment confirm this Court accepted that evidence of the conviction was admissible in other ways, provided it was relevant.

[26] Section 49(3) provides that before evidence of the conviction is entered, the

_{Judge must first be informed of the purpose for which the conviction is sought to be}

³ _{R v Fraser [2009] NZCA 520.}

⁴ Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers).

put in evidence. The admissibility of evidence of the conviction is to be determined, as with other evidence, by balancing considerations of relevance, probative value and prejudicial effect.

[27] Ms Hunt submitted evidence of Mr McKay’s conviction would be irrelevant. But whether Mr McKay wrote the letter will be a relevant issue at trial. Evidence of his conviction for wilfully attempting to pervert the course of justice by causing a letter to be delivered to the police in which he admitted the cultivation of the 86 cannabis seedlings in issue is strong probative evidence of his authorship of the first letter and of his purpose in writing the letter. Such evidence will be highly relevant to proof of the existence of a joint enterprise to pervert the course of justice.

[28] The real issue on this point is whether the evidence should be excluded as unfairly prejudicial under s 8. Ms Hunt submitted generally that evidence of the conviction would have an unfairly prejudicial effect on the accused’s ability to offer an effective defence.

[29] Ms Hunt relied on the decision of R v Nguyen⁶ to support her submission that evidence of the conviction would be prejudicial. In that case the accused were charged with drug dealing. The principal evidence against them was a series of intercepted communications. Priestley J ruled the evidence of the convictions of co- offenders as inadmissible on the basis that, while relevant, it would have an unfairly prejudicial effect on the trial.

[30] However, the facts and reasoning in R v Nguyen can be distinguished from those in the present. In R v Nguyen the purpose for the admission of the convictions of six other accused who were not before the Court was, in the Judge’s words:⁷

to better use that evidence as an interpretive aid to suggest to the jury that, because one of the participants in a relevant communication has been convicted of drug offending, therefore non-specific or imprecise terms used during telephone conversations and text messages are likely to refer to methamphetamine or methamphetamine supply.

[31] Priestley J concluded that the purpose for which the Crown sought to adduce evidence of the convictions remained at a level of generality.⁸ It would, in his view,

⁶ R v Nguyen HC Auckland CRI-2008-092-17198, 17 September 2010, Priestley J.

be tantamount to an open invitation to the jury to find the accused guilty (because of the communications with the others who had pleaded guilty) by virtue of that association alone. The probative value was minimal, and the risk of prejudice high. By contrast, in the present case, the admission of the conviction provides specific and direct evidence as to the authorship of the first letter, and Mr McKay’s purpose in writing the letter, both of which will be important issues at trial. The probative value of the conviction and its particulars is strong.

[32] Undoubtedly the evidence of Mr McKay’s conviction will have an adverse effect on the accused’s position because it assists the Crown to establish its case against him. Without more, however, that does not establish unfair prejudice. Ms Hunt was unable to point to any specific basis upon which the evidence would unfairly prejudice the appellant. The evidence will not mislead the jury. Any risk of the evidence being given more weight than it warrants or of it leading to undue speculation by the jury can be addressed by appropriate directions from the Judge as to the use to which the evidence may be put.

[33] Further, it remains open to the accused, if he wishes, to seek leave of the trial Judge to offer evidence tending to prove Mr McKay did not commit the offence and did not author the letter: s 49(2).

[34] For the above reasons we agree with the Judge that the evidence of

Mr McKay’s conviction is properly admissible in this case.

The admissibility of Mr McKay’s letters

[35] While accepting that s 12A preserved the co-conspirators exception to the rule against hearsay, Ms Hunt submitted that, in this case, the Judge was wrong to find that the pre-conditions for admissibility of evidence under that exception were satisfied.

[36] Ms Hunt also submitted that the second letter, written after the dates specified for the offending in the indictment, was not admissible because it was not written in furtherance of the common enterprise alleged.

[37] Finally Ms Hunt again submitted generally that the prejudicial effect of the letters outweighed their probative value and the letters should not be admitted for that reason.

The first letter

[38] We consider there is a distinction to be drawn between the two letters in this case. We deal first with the initial letter which forms the basis of the charge. As noted, the parties have approached the admissibility issue on the basis the letter was a hearsay statement and only admissible if it satisfied the co-conspirators exception to the rule against hearsay. In R v Messenger this Court noted the three pre-

requisites to admissibility of statements of a co-conspirator were that:⁹

(a) there was a conspiracy or joint enterprise of the type alleged; and

(b) the accused was a member of that conspiracy or joint enterprise; and

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

[39] In R v Qiu¹⁰ the Supreme Court confirmed there is a difference between proving these issues for the purpose of admission of the evidence and proving them for the purposes of establishing guilt. For the purpose of admission, the Court favoured the approach of Somers and Cooke JJ in R v Buckton¹¹ that there should be reasonable evidence of these features.

[40] As to (a), the principal evidence of the conspiracy is to be found in the first letter. Ms Hunt submitted that the letter was not admissible because there was no

_{direct evidence of its authorship or authenticity. She referred, by way of contrast, to}

⁹ _{R v Messenger [2008] NZCA 13 at [11].}

¹⁰ _{R v Qiu [2007] NZSC 51 SC; [2007] NZSC 51; [2008] 1 NZLR 1.}

¹¹ R v Buckton [1985] NZCA 33; [1985] 2 NZLR 257 (CA) at 263.

the case of R v Uea¹² where there was evidence that the handwriting on envelopes and postcards was that of the brother of the accused, one of the co-conspirators.

[41] For the reasons set out above, the co-accused’s conviction is admissible and will be before the Court by way of certificate. That confirms Mr McKay’s authorship of the letter and its purpose. Even without more, evidence of Mr McKay’s guilty plea to the charge satisfies the requirement to provide reasonable evidence of the conspiracy or joint enterprise: R v Lilley¹³ and R v Sofroniou.¹⁴

[42] As to (b), Ms Hunt submitted the Judge was wrong to take the letter into account in considering whether this second requirement was satisfied as the authorities establish that the hearsay evidence itself must not be taken into account.¹⁵

[43] It is only the content of the letter which could ever be considered as a hearsay statement. The background facts concerning or related to the letter cannot be hearsay statements. Evidence of them is not admitted for the purpose of proving the truth of any statement. The following background factors are relevant to this second

_requirement:

the appellant was charged with cultivation of the 86 cannabis seedlings;

the first letter was written by Mr McKay;

Mr McKay has pleaded guilty to and been convicted of wilfully attempting to pervert the course of justice by causing a letter to be delivered to the police in

_{which he falsely admitted the cultivation of the 86 cannabis seedlings;}

Mr McKay’s letter was delivered to the appellant’s lawyer and sent on by him

_{to the police;}

[44] Evidence of the above would support an inference the appellant was involved

_{in an attempt to pervert the course of justice. The co-accused has pleaded guilty to}

¹² _{R v Uea (1989) 4 CRNZ 703 (CA).}

¹³ _{R v Lilley [2003] EWCA Crim 1789.}

¹⁴ _{R v Sofroniou [2009] EWCA Crim 1360 at [48].}

¹⁵ R v Buckton, above n 11, at 261; R v Humphries [1982] 1 NZLR 353 (CA).

authoring a letter to achieve that end, and the appellant has, through his agent, caused the letter to be forwarded to the police. A jury could reasonably infer the appellant intended the police to act on the letter and, as such, was a party to the conspiracy.

[45] While we have dealt with the matter on the basis of counsels’ submissions, more fundamentally, the contents of the first letter are not strictly a hearsay statement in any event. The Crown does not seek to prove the truth of the contents of the letter. Rather, the Crown says the statements in the letter are untrue. The contents of the letter are more in the nature of “verbal acts” as discussed by the Supreme Court in Qiu. At [14] of that decision the Court made the point that certain statements will be admitted, not to prove the truth of what was said, but rather to prove the fact they were said. Such statements have the quality of “verbal acts” rather than hearsay and thus are not subject to the need to satisfy the conditions for the exception against hearsay. In our judgment the content of the first letter falls into that category of evidence.

[46] The final requirement at (c) is that the statements were made or done in furtherance of the conspiracy or joint enterprise. Again Ms Hunt submitted there was insufficient evidence the first letter was authored by Mr McKay. She also submitted that, absent evidence of Mr McKay’s conviction, the probative value of the letter was significantly outweighed by its prejudicial effect. However, for the reasons given above, evidence of the co-accused’s conviction is admissible. Once that conviction is admitted, the requirement for reasonable evidence the letter was written in furtherance of the conspiracy is satisfied.

[47] For the reasons given above, the evidence does not have an unfairly prejudicial effect. We conclude that the first letter is admissible against the appellant.

The second letter

[48] The second letter, however, is in a different category. The Crown seeks to rely on the truth of the contents of the second letter as proving that Mr McKay and,

by inference the appellant, had sought to pervert the course of justice in writing the first letter and providing it to the police.

[49] Mr La Hood submitted that the second letter provided further evidence of the earlier joint enterprise. But as it is otherwise hearsay, it can only be admitted under the co-conspirators exception to the rule against hearsay.

[50] The generally accepted basis for the admission of co-conspirators’ statements is that of implied agency. Each conspirator or party to a joint enterprise is deemed by law to have implied authority for the others to act or speak in order to further the common purpose: Tripodi v R.¹⁶ For the acts or statement to be admissible against other conspirators on that basis, the act or statement in question must be in furtherance or in advancement of the actual conspiracy. The common purpose must be continuing at the time of the act or statement. A statement recording that what has been done has been completed, either successfully or, as in this case, unsuccessfully, is not within the scope of the principle: Blake v Tye,¹⁷ R v Devonport, Pirano &

White,¹⁸ R v Messenger.¹⁹

[51] The period alleged for the offending is between 9 October 2008 and

8 December 2008. The second letter was dated 2 February 2009, outside the conspiracy alleged against the appellant. The clear inference to be drawn from the second letter is that Mr McKay had, by the time he came to write it, accepted the first attempt to convince the police the cannabis was his had failed. He suggests a different approach be taken. That was effectively a fresh attempt by Mr McKay to pervert the course of justice as it is in different terms to the attempt charged. There is no evidence that the appellant was a party to that fresh attempt. The second letter written by Mr McKay was not written to further the conspiracy as charged and its content (as the statement) is not admissible against the appellant to prove that earlier

_{conspiracy. To that extent the appeal must be allowed.}

¹⁶ _{Tripodi v R [1961] HCA 22; (1961) 104 CLR 1.}

¹⁷ _{Blake v Tye [1844] EngR 603; (1844) 6 QB 126.}

¹⁸ _{R v Devonport, Pirano & White [1996] Crim LR 255.}

¹⁹ R v Messenger above n. 8 at [20].

Result

[52] Leave to appeal is granted.

[53] The appeal against the decision of Judge Zohrab dated 18 April 2011 is dismissed.

[54] The appeal against the decision of Judge McKegg dated 29 October 2010 is allowed in part. The first letter is admissible. The content of the second letter is not.

Solicitors:

Crown Law Office, Wellington for Respondent