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Olua v R [2014] NZCA 105 (28 March 2014)

Last Updated: 1 April 2014

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
3 March 2014
Court:
Randerson, Venning and Cooper JJ
Counsel:
D J Allan for Appellant M D Downs and G H Vear for Respondent
Judgment:


JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant Mr Olua was convicted after a jury trial in the District Court before Judge Perkins on three counts relating to the importation and possession for supply of methamphetamine. He was subsequently sentenced to 12 years imprisonment with a six year minimum non-parole period. He now appeals against both conviction and sentence.
[2] The three specific counts were:

Count 1 – Mr Olua and a Mr Eze were jointly charged, together with a Ms Peneha, with importing methamphetamine on or about 5 May 2010.

Count 2 – Mr Olua and Mr Eze were charged with having methamphetamine in their possession for the purpose of sale or supply on or about 10 May 2010.

Count 3 – Mr Olua was charged with having methamphetamine in his possession for supply on or about 13 May 2010.

[3] Mr Olua and Mr Eze were both convicted on the two joint charges and Mr Olua alone on the third.
[4] The Crown alleged that Mr Olua and Mr Eze were either principals or parties to the importation of the drugs. The prosecution relied substantially on numerous text messages between Mr Eze and Ms Peneha and between the two accused. There was also evidence from Ms Peneha produced by way of written statement. She had pleaded guilty to her part in the importation and had been sentenced by the time of the trial involving Mr Olua and Mr Eze.[1] Finally, the Crown relied on evidence of sums of money found, telephone calls to Nigeria and South Africa and money transfers that were said to be consistent with drug offending.
[5] At trial, Mr Olua and Mr Eze advanced “cut-throat” defences, each seeking to blame the other for the importation of the drugs. Each accused the other of lying about their involvement. Mr Olua’s defence was that he had no knowledge of or involvement in the offending and that the drugs found were not his. He said he was a businessman and explained the text messages by saying Mr Eze wanted him to value jewellery being imported by him (Mr Eze). Mr Eze admitted involvement with importing the package on 5 May 2010 but said he believed it contained jewellery, not drugs. He maintained he was acting under instructions from Mr Olua as the importer.
[6] Counsel for Mr Eze sought to introduce a booklet of other text messages with a view to attacking the veracity of Mr Olua or establishing he had a propensity to engage in the importation and distribution of drugs.

Grounds for appeal

[7] For Mr Olua, Mr Allan (who was not trial counsel) submits there was an error of law or a material risk of miscarriage in relation to:
[8] There are two subsidiary issues:

(c) Whether a miscarriage of justice occurred from the failure by the Crown or trial counsel (Mr Peter Kaye) to call Ms Peneha as a witness.

(d) Whether a miscarriage of justice arose through trial counsel’s failure to cross-examine a customs officer, Mr Joy, about a search of the appellant’s suitcase shortly before he was found to be in possession of methamphetamine on 13 May 2010.

Background facts

[9] On or about 5 May 2010, a package arrived in New Zealand from South Africa. It was addressed to a Tracy Adigun, at an address in Otahuhu, Auckland. The package was intercepted by customs officers and was found to contain some 444 grams of methamphetamine.
[10] Between 1 and 10 May 2010, Mr Eze made arrangements with Ms Peneha for the collection and delivery of the package. This included finding an alternative address, arranging for another person to accept the package and for Ms Peneha to collect it from that person.
[11] It is evident from the text messages introduced by the Crown that Ms Peneha was acting on instructions from Mr Eze but it is also clear that during the same period, Mr Olua and Mr Eze were in touch with each other. According to the Crown case, both men were aware of and took part in the importation. For example, there were text messages showing that Mr Olua made inquiries of Mr Eze as to when the package would be coming. Mr Eze responded, keeping Mr Olua informed as to what was happening.
[12] On 10 May 2010, police and customs officers delivered the package to a female who gave it to Ms Peneha. The police arrested Ms Peneha who was found to be in possession of the package. She then cooperated with the police to arrange a meeting with Mr Eze and he was arrested as well.
[13] Three days later, on 13 May 2010, police and customs officers executed a search warrant at Mr Olua’s address, a boarding house with shared facilities. Mr Olua had locked himself into the bathroom at the address. The police found him there in his underwear. A blue sock was located in the bathroom cabinet the sock contained 132 grams of methamphetamine. In Mr Olua’s bedroom, a suitcase was found containing a second blue sock that appeared to match the sock found in the bathroom.

The circumstances in which the text message booklet was placed before the Court

[14] Counsel are now agreed about how the text message booklet was introduced into evidence:
[15] It is not in dispute that Mr Eze intended to challenge Mr Olua’s veracity under s 39 of the Evidence Act on the basis of the texts contained in the booklet and that he wished to offer propensity evidence against Mr Olua. This was particularly based on a text message dated 3 May 2010 suggesting there had been an importation of another package on that day. To the extent that the text messages contained hearsay, Mr Eze was seeking to rely on s 22 of the Evidence Act. No point is now taken about the absence of written notice for any of these purposes. The important point is that the text message booklet was placed before the Court by consent and it appears that no objection was taken during the trial to the admissibility of the material contained in it.

The use made at trial of the text messages contained in the booklet

[16] Mr Olua was cross-examined by counsel for Mr Eze on the basis of the text messages contained in the booklet along the following lines:
[17] The Crown prosecutor also cross-examined Mr Olua on the basis of the text messages introduced in the booklet, although much more briefly. This included, for example, questions on the topic of false passports and a text which counsel for Mr Eze had suggested showed that Mr Olua was involved in drug dealing.
[18] It is common ground that there was a separate importation of another package on 3 May 2010. The successful arrival of this package (addressed to an Ashley Avenue property) was the subject of a text by Mr Eze to Mr Olua at 13.13 on that day. This text was included amongst many produced by the Crown over the period 1 to 11 May forming part of a more or less continuous flow of messages. The Crown prosecutor accepted in closing that it could not be proved what the package contained but he submitted it was “suspicious.” It was not the subject of any charge.
[19] Neither Ms Scott (counsel for Mr Eze) nor the Crown prosecutor crossexamined Mr Olua extensively about the text of 3 May and neither emphasised it in their closing addresses. It was mentioned only in passing as part of the flow of events leading to the subject importation on 5 May, just two days later.

Were the text messages introduced in the booklet admissible?

[20] We commence our consideration of this issue by recording that Mr Downs accepted on behalf of the Crown that the consent of the parties to the introduction of evidence under s 9 of the Evidence Act does not mean that the Court is not required to consider whether the evidence should be excluded as irrelevant under s 7 and whether it should be excluded under s 8 on the ground that its probative value is outweighed by the risk of an unfairly prejudicial effect on the proceeding or would needlessly prolong it.
[21] We are willing to proceed on that basis while noting that the effect of s 9 may require analysis in a future case. In the present case, the consent of the parties may only have been to avoid the need for formal proof of the text messages.[2]

Relevance?

[22] Mr Allan argued first that the text messages were inadmissible because they were irrelevant in the sense used in s 7. He submitted they did not have a tendency to prove or disprove anything of consequence to the determination of the proceeding.[3]
[23] We do not accept that submission. The key issue at trial was whether Mr Olua and Mr Eze knew that the package imported on 5 May contained methamphetamine and whether they each assisted or encouraged the importation. Their guilt on count 2 (possession for supply) would also be established if the Crown proved those elements beyond reasonable doubt.
[24] As between the two accused, each denied knowledge that methamphetamine was involved and asserted that the other was responsible for the importation of the package. The text messages were between Mr Olua and Eze; between Mr Eze and Ms Peneha; between Ms Peneha and third parties recruited to act as “catchers” (to take delivery of the packages and bring them to her); and between Mr Olua and third parties (relating to transactions the Crown alleged involved the importation and distribution of drugs). These were all relevant to the extent of the involvement of each of the accused in the events over the critical period from 1 to 11 May 2010. Each accused sought to characterise the other as having the predominant role.
[25] We are satisfied that the text messages in the booklet were relevant to the nature and extent of the involvement of each accused in the transactions and were also relevant to what each knew or believed was in the package. We add that the content, timing and identity of those sending and receiving the messages was not in dispute. There could therefore be no doubt about the reliability and cogency of the messages as produced in documentary form in the booklet.

Propensity evidence?

[26] Mr Allan submitted next that the text messages were inadmissible as propensity evidence offered by Mr Eze against Mr Olua as a co-defendant under s 42 of the Evidence Act. He submitted that Mr Eze was endeavouring to establish that Mr Olua had a propensity to engage in the importation and distribution of drugs. That was supported by texts that Mr Eze suggested showed that Mr Olua was dealing in drugs in Gisborne and Auckland during the relevant periods. Mr Olua denied in evidence that references to (for example) cell phones and “raffle tickets” were referring to drugs and maintained these were legitimate transactions.
[27] Mr Allan referred us to the decision of the House of Lords in R v Randall for the proposition that it is not normally appropriate to inquire into the previous character of a co-defendant.[4] But he acknowledged it was accepted in Randall that evidence of a tendency to violence by one accused in a murder trial could be relevant to show that the version of events given by one accused was more likely to be correct. Randall was not concerned with “similar fact” evidence (as it was previously known) but with a general tendency of one of the two accused towards violence.
[28] Counsel also referred to the decision of the English Court of Appeal in R v Clive B[5] where evidence of prior conviction of a co-defendant for incest was found to have been wrongly admitted. This case is readily distinguishable from the present. The defendants in that case were not running a cut-throat defence where each was blaming the other. Each denied the offending charged and there was no attempt to support the credibility of the co-defendant by reference to any conduct or propensity of the appellant. The Court determined that the evidence had no relevance to the co-defendant’s defence.
[29] Randall and previous English authorities were discussed by this Court in R v Moffat.[6] In his judgment, Baragwanath J held that, in the New Zealand context, s 42(1)(b) of the Evidence Act confers only a limited discretion to the Judge to exclude evidence which is of consequence to the determination of the proceeding.[7] William Young J agreed, noting that it would be a “strong thing” to prevent a defendant adducing evidence under s 42(1)(b) which supported a defence.[8] McKenzie J also agreed, emphasising that a strict assessment of relevance is required.[9]
[30] In terms of s 42(1) of the Evidence Act, a co-defendant may only offer propensity evidence about another defendant if it is relevant to a defence raised by that defendant. If the evidence is properly characterised as propensity evidence (a proposition we reject below), we consider, for much the same reasons as those already discussed at [22]–[25] above, that the text messages were relevant to Mr Olua’s defence on counts 1 and 2, i.e. that he was not involved in the importation and that it was Mr Eze who was responsible for it. Evidence tending to establish that Mr Olua was indeed involved in the importation and distribution of drugs was clearly relevant as tending to disprove his assertions of innocence. In turn, this would advance Mr Eze’s defence.
[31] Mr Allan placed particular reliance on the text Mr Eze sent to Mr Olua on 3 May 2010 at 13.13. Translated, the message was to the effect that the goods had been received in good condition and that God was to be praised. As earlier indicated, this related to a package addressed to a different property to the package that arrived two days later which was the subject of counts 1 and 2.
[32] However, the context in which this message featured at the trial is relevant here. It was one of a series of texts originally put in evidence by the Crown as part of its case. The Crown could not demonstrate that the earlier package contained drugs and no doubt this was why no charge resulted in relation to it. Significantly, Ms Scott did not crossexamine Mr Olua about it and, when questioned by the Crown about this text, both Mr Eze and Mr Olua denied any knowledge that the package contained drugs and said they understood it contained jewellery.
[33] As earlier noted, neither the prosecutor nor Ms Scott placed any emphasis on this text in their closing addresses. It was simply regarded as part of the flow of events that immediately preceded the subject importation on 5 May.

Characterisation of the text messages – propensity evidence or evidence used to challenge veracity?

[34] Overall, it is something of a misnomer to view the text messages referred to as propensity evidence. In substance, the text messages were part of the immediate context of the subject offending. They were primarily relied upon to attack Mr Olua’s veracity by suggesting that his denial of any part in the importation and his denial of any knowledge that the packages contained drugs were false. As Ms Scott squarely put it to the jury, Mr Olua was a liar.
[35] Section 39(1) of the Evidence Act precludes a defendant from offering evidence challenging the veracity of a co-defendant unless the evidence is relevant to a defence raised. For the reasons already given, we are satisfied that the text messages were relevant to Mr Olua’s defence and were admissible on that ground.

Cross-examination of Mr Olua on the matters in [16](b), (c) and (d)

[36] Mr Allan also submitted that the Judge had wrongly allowed Mr Olua to be cross-examined on the matters identified in [16](b), (c) and (d) above. We do not accept that submission. Ms Scott was entitled to challenge Mr Olua’s veracity by reference to these issues, essentially for the reasons given above.
[37] We also observe that it does not lie in Mr Olua’s mouth to complain of challenges of this nature when Mr Kaye, on behalf of Mr Olua, was doing much the same thing when cross-examining Mr Eze. Mr Kaye put it to Mr Eze that he had come to New Zealand on a false passport (which Mr Eze admitted); he suggested that Mr Eze had given the Immigration Department a false birth date; and he suggested that Mr Eze had been involved in other importations and drug dealing himself.
[38] We accept Mr Downs’ submission that no unfair prejudice arose from the course adopted by Mr Eze and that it would have been difficult for Mr Olua to have advanced his own defence if he had not been permitted to challenge Mr Eze’s veracity in a similar way. Section 8(2) of the Evidence Act requires the Court to take into account the right of a defendant to offer an effective defence. This includes a fair opportunity to attack the veracity or reliability of a co-defendant. As this Court observed in R v Moffat, to the extent that unfairness might arise from an attack by one defendant on another under s 42 of the Evidence Act, this can be addressed by ordering severance (in an extreme case) or by jury directions.[10] We consider that the same consideration applies to an attack on the veracity of a co-defendant under s 39. Plainly, an application for severance could not have succeeded here and Mr Allan did not suggest otherwise.
[39] Before leaving this topic there were two other points raised by Mr Allan. The first was whether Ms Scott ought not to have been allowed to cross-examine Mr Olua about matters such as false passports and false bank accounts without producing the documents relied upon. Reference was made to s 90(3) of the Evidence Act. We do not accept that submission. Section 90(3) does not apply since there was no intention to use a document or to show a document to a witness. So long as there is a good faith basis for cross-examination and there are no other impediments to the admissibility of evidence, a witness (including a co-defendant) may be crossexamined without the need to produce documents tending to establish the proposition put.
[40] Mr Allan’s second point was that the Crown was not entitled to rely on Mr Olua’s responses to cross-examination by counsel for Mr Eze. Again, we do not accept that submission. In general terms, once evidence is properly admitted, it may be relied upon by any party.[11]
[41] We conclude that the text messages in the booklet produced by Mr Eze were admissible and that his counsel was entitled to cross-examine Mr Olua on the basis of those messages.

Was a direction required by the Judge in relation to the use of the evidence contained in the booklet of text messages?

[42] In summing up, Judge Perkins gave the usual direction that it was for the jury to determine questions of fact and to make decisions as to what evidence was accepted and what was rejected. The Judge carefully set out the defences each of the accused were raising and observed that each blamed the other. He gave an orthodox direction about the use of out-of-court statements and made it clear that the directions in that respect did not apply to their evidence in Court:

[59] ... What they said in Court can be used as evidence in their own defence or against them, depending upon what you make of it and also in support of, or against, each other.

[43] The Judge discussed inferences and added:

[87] Both accused have, of course, given evidence and each accused the other of lying. Eze and Olua are charged that they committed these crimes; that is counts 1 and 2, with Ms Peneha. You need to decide from all the evidence whether they, or either of them, knew that the drugs were in that package. You need to decide whether you are able to infer from the evidence and that is the evidence as a whole.

[44] The Judge returned to the assessment of evidence in the context of the tripartite direction:

[103] Now in this case, each accused has explained their version of events to you. Quite simply, they deny the allegations that they knew the drugs were in the package, that they participated in the importation or that they intended to import or possess the drugs. Mr Olua says that he had nothing to do with the drugs that were found in the toilet. Obviously they point the finger against each other and your job is to sift through that evidence and decide what you consider is the truth. But if you accept what they say in support of their own case, then obviously the proper verdict is acquittal, because they will then not have done what the Crown says they did. Of course, as I say, if you accept the evidence of one or other of them as to what they said in Court about their co-accused then that will be evidence that you will need to consider alongside the Crown evidence.

[45] The Judge did not give any separate directions about how the jury were to use the evidence of the text messages contained in the booklet. Mr Allan submitted that the Judge ought to have done so. In particular, he said the Judge ought to have given a propensity direction along the lines referred to by the Supreme Court in Mahomed v R.[12]
[46] We reject this submission. We have already expressed the view that the real thrust and substance of Ms Scott’s attack on Mr Olua in cross-examination was a challenge to his veracity. No counsel referred to propensity evidence in their final addresses and it is not surprising that the Judge did not consider that a propensity direction was required.
[47] Even if the evidence of the importation of a package on 3 May and other texts could be regarded as propensity evidence, a direction warning the jury of the risks of propensity reasoning is not always required. As the minority of the Supreme Court put it in Mahomed, where the Crown (or we add a co-defendant) is relying on propensity reasoning and is invoking ideas about coincidence or probability, a direction is required. Similarly where the evidence involves aspersions on the character of an accused in respects not directly associated with the alleged offending. Finally, a direction may be required where, without it, there will be a danger that the jury will not realise the relevance of the evidence in question or there are some particular risks of unfair prejudice associated with the evidence.
[48] We are satisfied that none of these circumstances applies in the present case. First, neither the Crown nor Mr Eze relied on propensity reasoning as such. Second, to the extent there were aspersions cast on the character of Mr Olua, this was in substance a challenge to his veracity. Third, we do not consider there was any risk in the present case that the jury would not realise the relevance of the line of crossexamination pursued in reliance on the text messages in the booklet or that there was any particular risk of unfair prejudice associated with the evidence.
[49] The observations in Mahomed echoed those of the Supreme Court in Wi v R:[13]

Directions [as to the use of evidence] should not be mandatory unless, without them, there is a real risk that the jury will approach the matter in an inappropriate way or in a way which does not do the defendant’s case justice.

[50] Finally, we note that Mr Kaye did not seek a propensity direction from the Judge. Given Mr Kaye’s extensive experience as a trial counsel we would have expected him to seek such a direction if he considered it was necessary or appropriate.
[51] We conclude that no direction was required from the Judge beyond those he gave.

Should Ms Peneha have been called?

[52] Prior to the trial, the prosecutor advised Messrs Olua and Eze that the Crown would not be calling Ms Peneha as a witness. We were informed by counsel that this position was adopted because the Crown considered Ms Peneha to be unreliable as a witness. Although she knew both the accused, Ms Peneha did not give the police any information that would identify Mr Olua; she was at Mr Olua’s home when the police executed a search warrant there; and the police considered that Mr Olua may have been romantically involved with Ms Peneha, a fact that Mr Olua accepted in evidence.
[53] Mr Kaye was not given instructions to call Ms Peneha. He took advantage of her absence by suggesting bluntly to the jury that Ms Peneha was responsible for planting the drugs at Mr Olua’s address.
[54] It is well-established that the Crown need not call a witness who is considered to be unreliable: R v Wilson.[14] In McGinty v Attorney-General, Wild J explained the rationale behind the relevance of reliability in the context of s 368(2) of the Crimes Act 1961:[15]

... no prosecutor should put her/himself in the position of calling evidence the prosecutor believes is unreliable or untruthful. Still less should the Court put a prosecutor in that position. I accept Ms McClintock's submission that that would run counter to the fundamental duties of a prosecutor. Fairness to an accused cannot demand the calling by the prosecution of evidence it reasonably believes to be false or unreliable, and the ends of justice will not be served by such a charade.

[55] Mr Allan was unable to suggest how Mr Olua’s position could have been improved if Ms Peneha had been called by Mr Kaye or if the Court took the highly unusual position of insisting that the witness be called under s 368(2). We accept Mr Downs’ submission that there was a proper basis for the Crown’s concern about calling Ms Peneha. Moreover, it is doubtful Mr Olua would have been in any better position given that the jury would likely have been sceptical of her testimony in view of her romantic connection to Mr Olua. We note too that the Judge firmly directed the jury in his summing up not to speculate about why Ms Peneha was not called or what she might have said.[16]
[56] We reject this ground of appeal.

Did a miscarriage of justice arise through trial counsel’s failure to crossexamine customs officer Joy?

[57] The argument here related to the socks located at Mr Olua’s address when the premises were searched on 10 May 2010. All of the prosecution witnesses said there was one sock found in the bathroom. That sock contained the drugs located at that time. In addition, there was evidence that another sock was found in a suitcase in Mr Olua’s bedroom. It was said that the socks appeared to match.
[58] The complaint made on behalf of Mr Olua is that Mr Kaye ought to have cross-examined Mr Joy, a customs officer who found the sock in the suitcase. The suggestion was that the customs officer should have been challenged on the basis that he planted the sock in the suitcase.
[59] We accept the submission made by Mr Downs that there is no merit in this point. It is entirely speculative. There is nothing to suggest that, if questioned along these lines, the customs officer would have given evidence supporting Mr Olua’s case. The issue of the socks was fully covered in Mr Kaye’s address, including the proposition that there may have been two socks in the suitcase when it was found in the bathroom. This matter was also put before the jury by the Judge.[17] Quintessentially, this was a matter for the jury and we do not discern any basis for a submission that a miscarriage of justice may have arisen from this point.

Conviction appeal - result

[60] For the reasons given, the appeal against conviction is dismissed.

Sentence appeal

[61] Judge Perkins adopted a starting point of 12 years imprisonment which was consistent with the starting point adopted for both Mr Eze and Ms Peneha.[18] He considered that an uplift of one year was appropriate having regard to the third count in the indictment which was faced by Mr Olua alone. The resulting starting point of 13 years imprisonment is not disputed on appeal.
[62] The Judge allowed a discount of five per cent for Mr Olua’s previous clear record and the fact that there would be some additional harshness in serving a sentence of imprisonment in New Zealand given that Mr Olua was an alien in this country. A further discount of three months was allowed on account of trial delay. This resulted in a final sentence of 12 years.
[63] A minimum period of imprisonment of six years was imposed since the usual minimum period would have been insufficient to meet the statutory purposes of holding Mr Olua accountable, as well as providing for denunciation, deterrence and the protection of the community. The Judge noted that a minimum period of imprisonment of 50 per cent of the lead sentence was also adopted in the case of Mr Eze.
[64] The sentence appeal is advanced on the basis that the discount of five per cent was too low and the imposition of a minimum term was inappropriate and wrong in principle.

The discount

[65] We do not see any basis to increase the discount. As Mr Downs pointed out, Mr Olua received a total discount of one year for his previous good character, the harshness of imprisonment given his immigration status and for some delay in progressing the matter to trial. This was the same discount received by Mr Eze whose appeal against sentence has been upheld by this Court.[19] We agree with Mr Downs that there is no basis to differentiate in the treatment of the two co-offenders in respect of mitigating factors. The discount was appropriate given the longstanding approach that personal factors carry little weight in drug dealing offences.[20]

The MPI

[66] In relation to the minimum period of imprisonment, Mr Allan emphasised that Mr Olua has been served with a deportation order under the Immigration Act 2009 on 26 September 2011 and has not appealed against that order. He submitted that the protection of the New Zealand public had already been achieved by virtue of that order. He also argued that if the minimum term were not quashed, Mr Olua could only be released early under s 55 of the Parole Act 2002 if he established to the satisfaction of the Minister of Immigration that he was not an undue risk to the safety of the community into which he was to be deported. [21] Mr Allan also submitted that Mr Olua’s security classification was adversely impacted by the minimum period of imprisonment imposed.
[67] This Court has said many times that the pervasive and pernicious influence of methamphetamine in New Zealand is such that the usual minimum period of imprisonment of one third applicable under the Parole Act will most often be insufficient to meet the statutory purposes identified in s 86(2) of the Sentencing Act 2002 in cases of large-scale drug offending and that foreigners should not be treated differently from New Zealand citizens where substantial drug dealing is involved: R v Zhou.[22] More recently, this Court has held that the prospect of deportation is not a proper ground for refusing to impose a minimum sentence which is otherwise justified.[23]
[68] We are not persuaded that the Judge was wrong to impose the minimum period of imprisonment. This case involved drug offending on a substantial scale which clearly required a longer period than the normal one third minimum in order to fulfil the statutory purposes of a minimum term of imprisonment under s 86(2) of the Sentencing Act. The protection of the community required the minimum term imposed. We are not persuaded that the existence of the deportation order required any different approach.

Sentence appeal - result

[69] For these reasons the appeal against sentence is dismissed.



Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Peneha DC Manukau CRI-2010-092-7088, 28 October 2011.

[2] This issue was touched on by this Court in R v Pickering [2012] NZCA 311 at [98]. In declining leave to appeal, the Supreme Court appears to have left the point open: R v Pickering [2012] NZSC 80 at [3].

[3] Section 7(3) of the Evidence Act 2006.

[4] R v Randall [2003] UKHL 69, [2004] 1 WLR 56.

[5] R v Clive B [2004] EWCA Crim 1254, [2004] 2 Cr App R 34.

[6] R v Moffat [2009] NZCA 437, [2010] 1 NZLR 701.

[7] At [21].

[8] At [42].

[9] At [62].

[10] R v Moffat, above n 5, at [23].

[11] Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54] and R v Robinson (2006) 1 Cr App R 480 at [83].

[12] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [95] per McGrath and William Young JJ.

[13] Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [41].

[14] R v Wilson [1997] 2 NZLR 500 (HC) at 510–511.

[15] McGinty v Attorney-General [2001] NZAR 449 (HC) at [19].

[16] R v Olua DC Auckland CRI-2010-092-7088, 17 July 2012 [Summing up] at [55].

[17] Summing up, above n 15, at [98]–[99].

[18] R v Olua DC Auckland CRI-2010-092-7088, 14 December 2012.

[19] Eze v R [2013] NZCA 529.

[20] McKechie v Police (1989) CRNZ 386 (HC) at 388.

[21] Parole Act 2002, s 55(7).

[22] R v Zhou [2009] NZCA 365 at [19] and [26].

[23] Bi v R [2014] NZCA 10 at [6].

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