Pearce v R [2014] NZCA 388 (14 August 2014)

Last Updated: 22 August 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA519/2013 [2014] NZCA 388
BETWEEN	WARD HARRY PEARCE Appellant
AND	THE QUEEN Respondent

Hearing:	22 July 2014
Court:	Stevens, Lang and Clifford JJ
Counsel:	G C Gotlieb for Appellant P D Marshall for Respondent
Judgment:	14 August 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] During a search of an Auckland hotel apartment in April 2010, the police found methamphetamine, cannabis and pseudoephedrine in a safe. A Mr Nouri was found in one of the bedrooms and was arrested. Mr Pearce, the appellant, returned to the apartment later and was also arrested. Mr Nouri and Mr Pearce faced trial jointly on four charges: one representative charge of supplying methamphetamine, possession of methamphetamine found in the safe for the purpose of supply (259 grams), possession of cannabis in the safe for the purpose of sale, and possession of pseudoephedrine in the safe, with the intention it be used in the manufacture of methamphetamine.
[2] Both accused pleaded not guilty to these charges.^[1] Each gave evidence at trial and ran what are sometimes referred to as “cut-throat” defences, where each seeks to blame the other. The jury found both accused guilty on all charges. Mr Pearce was sentenced to eight years’ imprisonment.^[2] Mr Nouri had already been convicted of charges in respect of methamphetamine offending in June 2011 for which he was serving a sentence of six years. On the basis of totality, he was sentenced to a further cumulative term of four years.
[3] Mr Pearce appeals against conviction and sentence. He advances two separate grounds against conviction. The first relates to the conduct of the trial, particularly the way Mr Nouri ran his defence. The second concerns the permitted use by Mr Nouri of Mr Pearce’s previous convictions. He also challenges his sentence on the basis of parity with Mr Nouri’s sentence.

Background

[4] In April 2010, Mr Pearce and Mr Nouri travelled to a hotel in Auckland in a car rented by Mr Pearce. Mr Pearce rented a two-storey apartment on the tenth floor of the hotel. It had two double bedrooms, one of which contained a safe. CCTV footage showed two unidentified Asian men exit the elevator on the tenth floor and walk in the direction of the rented room in question. Once he had seen the footage played in Court, Mr Nouri claimed in his evidence the Asian men had entered the apartment and provided Mr Pearce with drugs in exchange for money. The men were later seen leaving the tenth floor via the elevator. Mr Pearce denied having ever seen the men.
[5] Sometime later Mr Nouri left the apartment to collect a female prostitute from reception. Together they came up to the apartment. Mr Pearce left the apartment. Later that evening police were alerted to the smell of cannabis coming from the apartment. Inside, they found Mr Nouri using a gas burner and a piece of wire to heat a substance, and his female companion smoking methamphetamine from a glass pipe. When spoken to, Mr Nouri said there were drugs in the room, including “10 ounces of meth in the safe”. He claimed not to know who owned the drugs, but admitted he was involved in their sale. He gave a police officer the combination to the safe. Inside the safe the police found 259 grams of methamphetamine, 52 grams of cannabis, 61.6 grams of pseudoephedrine (wrapped in a t-shirt), electronic scales and $7,285 in cash. The police also found other items consistent with drug offending.
[6] Mr Nouri refused to tell the police the source of the drugs or the persons to whom he sold them. When asked who had hired the apartment, he said if he told the police, he would be killed. Mr Pearce then returned to the apartment, and was placed under arrest. He invoked his right to silence.
[7] When interviewed by Detective Garton, Mr Nouri admitted owning some of the property in the apartment including the gas burner, two ounces of cannabis and opium oil. He said the other property was owned by Mr Pearce, or the unidentified woman with him. Mr Nouri acknowledged putting the methamphetamine, scales and cash in the safe, but said those items had come from an “other guy” whom he did not want to name on record. He refused to name the owner of the methamphetamine.

Defence cases at trial

[8] The Crown advanced its case on the basis that both co-accused were jointly involved in the drug trade. It alleged they had previously supplied methamphetamine to others (count one), were in joint possession of the drugs in the hotel safe, possessed the methamphetamine and cannabis for the purpose of supply (counts two and three), and possessed the pseudoephedrine with the intention it be manufactured into methamphetamine (count four).
[9] Mr Pearce and Mr Nouri advanced somewhat different defences. Mr Pearce denied any involvement with, or knowledge of, the drugs found in the apartment. He said Mr Nouri had supplied him with cannabis for medicinal purposes, but they were not working together in relation to drugs. Mr Pearce alleged the drugs belonged solely to Mr Nouri, and not him.
[10] The fact Mr Nouri had made the admissions referred to at [7] above meant his defence options were more limited. He accepted responsibility for some of the offending, pleading guilty to charges of possessing opium and methadone and supplying methamphetamine to his female companion. He also pleaded guilty to an unrelated charge of possession of 310 grams of methamphetamine. However, he denied responsibility for the drugs in the safe and maintained these did not belong to him.
[11] Mr Nouri gave evidence that he had been dealing drugs with Mr Pearce for about seven months. He said Mr Pearce had booked the apartment to receive a delivery of drugs. Mr Nouri claimed Mr Pearce would supply him with drugs and he would then deliver it to Mr Pearce’s “contacts or friends”. Effectively Mr Pearce was his boss. In cross-examination, he accepted he was guilty on the charge of supplying methamphetamine. His counsel also closed on that basis. On the balance of the counts, Mr Nouri maintained he was not guilty.

Appeal against conviction

[12] The first ground relates to the way in which Mr Nouri advanced his defence. The second concerns the admission, on Mr Nouri’s application, of Mr Pearce’s previous convictions. Three other grounds set out in the written submissions were abandoned at the hearing.

Ground one: the conduct of Mr Nouri’s defence

[13] Mr Pearce contends the way Mr Nouri conducted his defence caused him to suffer a substantial miscarriage of justice.^[3] The essential argument is this:

• (a) Mr Nouri admitted his guilt prior to and at trial. Therefore, he had no valid defences to counts one, two, or three.
• (b) By abandoning his defences and admitting guilt in this manner, Mr Nouri departed substantially from his disclosed brief of evidence.^[4]
• (c) At the trial Mr Nouri proceeded to give evidence supporting a defence implicating Mr Pearce. But this was irrelevant evidence, because his defences could not succeed.
• (d) Although Mr Nouri’s evidence was relevant and probative in respect of count four (which Mr Pearce concedes), admitting the evidence had a prejudicial effect on the proceeding as a whole and Mr Pearce’s defence in particular.

Relevant legal principles

[14] Neither accused was under any obligation to plead guilty to any of the counts he faced. Axiomatically, each possessed the right to present a defence. They faced a joint trial. In R v Taylor, this Court held that it was in the interests of justice that those alleged to have committed offences together be tried together, and should not be able to “game the system” in separate trials.^[5] Despite this, the judge retains a discretion as to whether to sever a joint trial. Inadmissible material prejudicial to one accused is not of itself sufficient to warrant severance.^[6] Moreover, the mere probability that each accused will inculpate the other does not make severance necessary. Indeed, joint trials frequently pose that risk, and do not inevitably require severance to ensure a fair trial.^[7]
[15] As noted Mr Pearce and Mr Nouri as co-accused in this case both advanced “cut-throat” defences. In such cases severance can create serious risks for the administration of justice.^[8] Severance ought properly be reserved for extreme cases, where the “weight of the inadmissible evidence, against that of the admissible, makes it unfair to an accused ... to expect the jury to act only on the evidence which is admissible”.^[9] It is against this standard that Mr Pearce’s submission is to be considered.

Conduct of defence – prejudice?

[16] Mr Pearce suggests that Mr Nouri had no defences to counts one, two or three and therefore that the evidence he gave as regards those counts was irrelevant.
[17] Although Mr Nouri and Mr Pearce were tried jointly, there were – conceptually – two separate trials taking place. Mr Nouri was entitled to conduct his defence as he thought fit. It is not, in our view, for his co-accused to say that he did not have a valid defence and, on that basis, seek to exclude that evidence to the extent it is prejudicial to Mr Pearce in his conceptually separate trial. Evidence given at trial by each co-accused is admissible against the other. As already noted, the Judge nevertheless retains a discretion as to whether to sever joint trials. We think Mr Pearce’s argument here is more properly characterised as whether, as matters turned out, his trial should have been severed from that of Mr Nouri’s on the grounds of unfair prejudice given the way Mr Nouri chose to defend the charges.
[18] At the outset we make an obvious point. There is no basis for Mr Pearce’s contention that any evidence given by Mr Nouri not supportive of a defence was irrelevant evidence. Such an approach would render evidence elicited by a prosecutor in crossexamination either irrelevant or inadmissible. It would also undermine the entire premise of joint trials, being to enhance the fact-finding aspects of trials and the effective administration of justice. We are satisfied no miscarriage of justice was occasioned by the leading of irrelevant evidence from Mr Nouri at the trial.
[19] We go on to consider whether the way in which Mr Nouri conducted his defence involved any unfair prejudice to Mr Pearce.
[20] The first count related to the supply of methamphetamine. In crossexamination at trial Mr Nouri acknowledged his guilt on this first count. His counsel repeated that concession in closing. The jury were instructed to the same effect. On appeal Mr Marshall, counsel for the respondent, accepted Mr Nouri did not advance any defence to this count.
[21] But Mr Nouri maintained defences to the other three counts. Counts two and three concerned possession of the methamphetamine and cannabis in the safe for the purpose of supply. Counsel for Mr Nouri contended that, while he was “technically” in possession of the drugs in the safe, he did not own them and did not possess them for the purpose of supply. He advanced a defence on the basis he was a “mere custodian” for Mr Pearce, and on the basis that if he intended to return the drugs to Mr Pearce, he could not hold them for the purpose of dissemination or supply.^[10] In his evidence-in-chief, Mr Nouri said Mr Pearce was the sole owner of the methamphetamine in the safe and Mr Nouri was to look after the drugs until he returned. Mr Nouri was not allowed to touch them. In cross-examination, Mr Nouri accepted he took possession of the methamphetamine when Mr Pearce left the apartment. But he maintained this possession was not for the purpose of supply.
[22] Mr Nouri also acknowledged some of the methamphetamine was supposed to be given to him and he was to sell it:

Q: And the reason for that was because Mr Pearce, or yourself, were going to supply or sell those drugs?

A: Yes.

Q: And you, yourself, were going to sell some of those drugs? Sorry we need the answer?

A: Yes.

...

Q: ... I ask you again Mr Nouri, you’re guilty of that as well aren’t you?

A: Not for the whole, the whole amount of the drugs.

Q: But for some of them, that’s why you possessed the meth in the safe, some of the meth in the safe?

A: It was supposed to be given to me.

Q: Yes.

...

Q: And the reason you possessed it was because you were going to supply or sell some of it?

A: Not exactly because we were friends, we were very close but – because he had assisted me and helped me in the past, I could not refuse at that stage.

Q: So is that a yes Mr Nouri?

A: Yes.

[23] Mr Nouri’s counsel closed on the basis that he was a custodian or guardian of the methamphetamine. Judge Hubble directed the jury that if Mr Nouri’s present intention is to sell or supply in the future, he has an intention to sell or supply:^[11]

[90] ... Mr Ryan raised this custodian defence and I have ruled that what you must focus on is the present intention as to the future dealing with this drug. I think Mr Kayes is right that I may have assumed the evidence established that Mr Nouri had admitted he was going to sell this stuff in the future when it became available but that is very much a contentious issue and one for you to decide and you should not take it from me that there was evidence to strengthen that view.

[24] In relation to count three, Mr Nouri accepted he had placed the cannabis in the safe. He said it belonged to both him and Mr Pearce. His defence was the cannabis was for their personal use and could not therefore be for the purpose of supply. Asked if he would sell any of it he replied “Yes, perhaps yes”. In cross-examination, he stated further that:

...[t]he intention of having this cannabis was not for sale, but of course if he had request of the amount [sic] we would.

[25] In closing, his counsel argued that at the time the drugs were found Mr Nouri’s intention was that the drugs were for the purpose of his use and Mr Pearce’s use. What might happen in the future did not take the matter any further. This defence was left to the jury without further comment by Judge Hubble.
[26] There is no dispute Mr Nouri raised a defence in respect of count four.
[27] We are satisfied the defences Mr Nouri advanced on counts two to four were not effectively abandoned by Mr Nouri during cross-examination. They were maintained by him and his counsel throughout the trial. Fundamentally Mr Nouri sought to attribute the offending primarily to Mr Pearce. In doing so, he hoped to further his own defences. In order to demonstrate plausibly the claim he was a mere custodian of the methamphetamine (rather than a joint owner), he sought to establish Mr Pearce was the “boss”, who sourced (and owned) all the methamphetamine. By suggesting Mr Pearce was the primary offender, Mr Nouri increased the likelihood the jury would accept that he did not possess cannabis for the purpose of sale and did not know about the pseudoephedrine found in the safe. At best for Mr Pearce, Mr Nouri may have become confused during cross-examination in some respects.
[28] We consider the defences Mr Nouri relied upon had both legal and factual foundation. He acknowledged his guilt frankly in respect of count one and sought to convince the jury of his innocence in respect of the remaining counts. Counsel for Mr Pearce also questioned Mr Nouri’s motivations for advancing the defences he did. We consider the propriety of the way in which an accused conducts his or her defence cannot depend on the accused’s subjective desires.^[12] While Mr Nouri acknowledged it was “only fair” Mr Pearce be held to account for his offending, inquiries as to Mr Nouri’s motivations are unhelpful, provided his defence was conducted within the relevant legal and ethical boundaries. In any event, we doubt Mr Nouri’s motivation for defending the charges was merely to implicate Mr Pearce. This is demonstrated by the fact Mr Nouri’s counsel sought to have his statements to the police excluded prior to trial. Both the District Court and this Court ruled against him.^[13]
[29] We therefore reject the appellant’s submission that, in the context of the joint trial, the manner in which Mr Nouri’s defences were conducted caused unfair prejudice to Mr Pearce. Moreover there was no basis for any submission that such aspects occasioned a miscarriage of justice.

Adequate disclosure of Mr Nouri’s evidence

[30] This argument is also directed at establishing that the trial was unfairly prejudicial to Mr Pearce because of the manner in which the evidence given by Mr Nouri came before the Court. It arises at least in part from alleged inadequate disclosure in Mr Nouri’s brief of evidence disclosed to Mr Pearce shortly before the trial. Further, Mr Pearce also contended Mr Nouri improperly diverged from his brief of evidence in his evidence at trial. The three specific ways Mr Nouri diverged from that brief were: (a) he accepted knowledge of the methamphetamine, cannabis and money in the safe; (b) he claimed that two Asian men dropped off the methamphetamine to Mr Pearce at the hotel during the afternoon; and (c) he said he had been working in a “drug dealing partnership” with Mr Pearce. Mr Pearce alleged that there was accordingly unfair prejudice because he was caught unaware concerning the defence Mr Nouri would run.
[31] The key authority relied upon by Mr Pearce to advance his submission that an accused must adhere to a brief of evidence is R v Rhodes.^[14] There, counsel for one accused had not indicated prior to trial that any cut-throat defences would be advanced and assured counsel for co-accused to that effect. At trial, the approach changed and counsel advanced inculpatory evidence against the co-accused. Temm J declared a mistrial on the basis that the co-accused had been “led ... positively into a false position.”^[15] The Judge relied upon the proposition that:^[16]

... when one of two or more accused persons proposes to attack the character of another accused, notice should be given of that fact to the co-accused who is to be the target of the question to be called.

[32] We agree with Mr Marshall that this principle is limited in its terms to a proposed attack on the character of a co-accused. In R v Miller, the authority on which Temm J relied, one accused sought to question another about having served a term of imprisonment.^[17] Notice of such attack ought to be given on the basis that:^[18]

... any question of this sort that is being asked by counsel for one accused that will affect the other accused ought to be communicated to counsel for the other accused in advance, so that he may consider whether he desires to take any objection to it.

[33] Neither Rhodes nor Miller suggests a detailed brief of evidence must be provided to one’s co-accused. Mr Gotlieb was unable to cite any authority for a common law principle requiring the delivery to a co-accused of a full brief of evidence, other than where there is to be an attack on the character of the co-accused. The common law does not generally require an accused running a cut-throat defence to provide a brief of evidence to a co-accused.
[34] The Evidence Act 2006 reflects the common law position. Notice requirements remain limited to character evidence (now divided into veracity and propensity evidence). Where a defendant proposes to offer evidence that challenges the veracity of a co-defendant or is propensity evidence about a co-defendant, timely written notice of that evidence must be given.^[19] That is the only notice requirement.
[35] We are satisfied Mr Pearce had ample notice that Mr Nouri would seek to implicate him in the alleged offending. Indeed Mr Nouri’s approach to his defence (and his consequent implication of Mr Pearce) had been relatively consistent with Mr Nouri’s actions prior to trial, and with the substance of his brief of evidence:

• (a) When spoken to by the police, Mr Nouri indicated knowledge of the drugs in the apartment. He said that while he sold them, he did not own them.
• (b) He initially refused to name the owner of the drugs, who had hired the apartment or who had brought him to the hotel, which implies the individual was a co-offender, or at least involved in the offending.
• (c) In a subsequent DVD interview, Mr Nouri named Mr Pearce as the person who had hired the apartment and the rental car, and said the property in the safe belonged either to Mr Pearce or the woman with him. He refused to specify the owner of the methamphetamine.
• (d) In his brief of evidence, Mr Nouri stated Mr Pearce told him there was about 10 ounces of methamphetamine in the safe (as well as some cash) and that he had “no authority to touch those drugs”. He said his evasiveness when interviewed earlier was because he wished to protect Mr Pearce. He denied knowing there was cannabis in the safe.

[36] We are satisfied there was no “surprise” inculpatory evidence introduced at any stage. Judge Hubble observed at an early point during trial that “both counsel have given more than adequate notification to the other side, that this is going to be a ‘gloves off cut throat defence’ on both sides”.^[20]
[37] Counsel for Mr Pearce also relied on the fact Mr Nouri recalled in cross-examination that two Asian men had come to the apartment, after seeing CCTV footage to that effect, whereas previously he said “a boy” had delivered the drugs. Mr Gotlieb suggests this was “opportunistic”. Mr Marshall acknowledges this change came as a surprise but submits it arose as a result of Mr Nouri seeing the CCTV footage for the first time and did not prejudice Mr Pearce. Rather, it provided an opportunity for Mr Nouri to be cross-examined on these inconsistencies by Mr Pearce’s counsel. It allowed his counsel to emphasise the absence of evidence of any men entering the apartment, and raised the prospect the Asian men may have been visiting another individual on the floor. It did not make Mr Nouri’s account more inherently believable, to the detriment of Mr Pearce.
[38] We consider that to the extent this evidence came as a surprise, it did not prejudice Mr Pearce. His counsel cross-examined Mr Nouri on the inconsistencies between his interview and this evidence. He also highlighted the absence of any evidence showing the men entering the apartment. Moreover, whether the drugs were delivered to Mr Pearce at the apartment or brought there by him was of limited significance. It did not make Mr Nouri’s account any more believable. Inquiries during the trial left open the possibility that the men may have been visiting another guest on the tenth floor, one Mr Pang. These were matters Mr Pearce’s counsel emphasised strongly in closing.
[39] Mr Gotlieb submits a further potential source of prejudice is the possibility that, given more time, Mr Pearce may have been able to prove Mr Nouri was lying about these men. This is speculative. This Court has recently held that it “cannot make any assessment of potential evidence unless it knows what that evidence might have been, and can thus assess how it might have affected the trial”.^[21] No adjournment was sought during trial. Further, there was no application before us to adduce fresh evidence.
[40] We conclude there was no inherent unfairness, nor unfair prejudice, to Mr Pearce either in the way in which Mr Nouri’s evidence was disclosed pre-trial or in the manner it was presented at the trial. Mr Nouri’s evidence that it was the two Asian men who made the delivery to the apartment, rather than a boy, did not occasion a miscarriage of justice.
[41] This first ground of appeal therefore fails.

Ground two: Mr Pearce’s prior convictions

[42] Mr Pearce has prior convictions for common assault in 1991 and 2007, wilful damage in 2006 and 2007 (the violence convictions) and for possession of cannabis for supply in 1988 and offering to sell a class C drug in 1981 (the cannabis convictions). During the trial, Mr Nouri’s counsel obtained leave to crossexamine Mr Pearce in relation to these convictions.
[43] Mr Pearce submits these convictions were wrongfully allowed to be the subject of cross-examination. The Crown contends they were admissible and relevant as propensity evidence in rebuttal to evidence called by Mr Pearce. We deal with the two types of evidence in turn.
[44] First, when Mr Nouri was first spoken to by the police, he declined to disclose the source of the drugs; he stated if he told the police he would be “killed”. In his DVD interview Mr Nouri said he was scared of the individuals associated with the drugs, as they were “bad arses”.
[45] The issue to which these statements relate arose at the trial. Counsel for Mr Pearce put to Mr Nouri in cross-examination that he had obtained drugs from an Iranian drug syndicate and it was these individuals of whom he was scared. During Mr Pearce’s evidence-in-chief, his counsel dealt with this issue as follows:

Q: Now Mr Nouri has given evidence that, well he’s been – that he used the expression “I’ll be killed” have you ever exhibited anything to warrant that being said about you?

A: Definitely not. I’m not that, I don’t have that mannerism; you know I’m a family orientated person.

[46] Judge Hubble ruled that this statement had opened up the issue of whether Mr Pearce would make a threat to Mr Nouri and had introduced a statement that he is a family man, impliedly a person of good character.^[22]
[47] Counsel for Mr Pearce contends there was no proper basis on which the Judge could permit Mr Nouri to lead propensity evidence. When Mr Pearce gave evidence of being a “family orientated man” his purpose was to dispel the notion that he would specifically threaten Mr Nouri – not to put into contention his character generally.
[48] Mr Marshall submits the violence convictions were correctly admitted pursuant to s 41(2) of the Evidence Act. Thus if a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant. Here Mr Pearce offered propensity evidence about himself, and therefore this evidence was admissible.
[49] In Wi v R, the Supreme Court recognised that the prosecution would “clearly be entitled to contradict” propensity evidence given by a defendant as to his or her lack of previous convictions.^[23] We consider the present situation to be analogous. As William Young P explained in Moffat v R:^[24]

It would be a strong thing to prevent a defendant adducing evidence which supports a defence. Indeed I would see such exclusion as inconsistent with s 25(e) and (f) of the new Zealand Bill of Rights Act 1990. Potential for collateral damage to some defendants is an inevitable corollary of conducting joint trials.

[50] We are satisfied Mr Pearce offered propensity evidence about himself. He claimed he was not someone who would threaten people and, by implication, was a person of good character. Despite its limited probative value, such evidence was relevant to a fact in issue, namely whether he was the owner of the drugs, whom Mr Nouri had been afraid to name. Mr Nouri was entitled to respond. As Humphreys J put it in R v Winfield, “there is no such thing known to our procedure as putting half your character in issue and leaving out the other half”.^[25] Mr Pearce’s violent convictions showed a propensity to the contrary and were of probative value.
[51] Second, in respect of the cannabis convictions, Mr Pearce claimed that Mr Nouri was his supplier of cannabis and it was used for medicinal reasons. He stated that “as far as drugs go, that’s my involvement”. Under cross-examination, Mr Pearce maintained he was not a drug dealer:

Q: And was your sole use of cannabis just to ease the pain in your back?

A: Yes.

[52] Judge Hubble granted leave to introduce Mr Pearce’s cannabis-dealing convictions.^[26] The Judge ruled Mr Pearce had opened himself up to cross-examination as he had accepted he had cannabis-dealing convictions, but maintained he never supplied it.
[53] We consider Judge Hubble was correct to allow the cannabis convictions to be admitted as rebuttal propensity evidence, despite their age. Absent this evidence, Mr Pearce would have essentially accused Mr Nouri of being a cannabis dealer, when in fact only Mr Pearce had cannabis-dealing convictions. Although it was of limited probative value, we consider this evidence was relevant and admissible.
[54] Any risk of a miscarriage of justice was ameliorated by the Judge’s directions to the jury. These were directed to any possible prejudice caused by the presence of the convictions. The Judge said in summing-up:^[27]

• (a) There is a “huge” difference between dealing cannabis and methamphetamine;
• (b) Mr Pearce’s cannabis convictions were 25 years old;
• (c) Given this, it may be a long stretch to say it shows any disposition to deal in the much more serious drug, but that was a matter for the jury;
• (d) Even if it does show some tendency to do this the jury obviously must not jump to conclusions that because Mr Pearce offended on those previous occasions they must be guilty of the present charges.

[55] We are satisfied this limited any risk that these previous convictions had an unfairly prejudicial effect on Mr Pearce. It follows this ground of appeal fails.

Appeal against sentence

[56] Mr Pearce’s appeal against sentence can be dealt with briefly. He challenges his end sentence on the basis of parity alone. He says he was sentenced to eight years’ imprisonment, whereas Mr Nouri received only a sentence of four years’ imprisonment for the same offending.
[57] Mr Nouri’s sentence on the present charges was complicated by the fact he was serving a sentence of six years’ imprisonment for the 2011 conviction for possession of 310.9 grams of methamphetamine for supply. At sentencing for the present charges the Crown sought a cumulative sentence of four to four and a half years’ imprisonment on the basis of totality.^[28] Counsel for Mr Nouri agreed. The Judge imposed a cumulative sentence of four years’ imprisonment. This resulted in a notional single sentence for all offending of ten years’ imprisonment.
[58] Accordingly, the basis for this disparity is totality, not culpability considerations. This Court in MacFarlane v R summarised the approach to be adopted to alleged disparity in sentencing: ^[29]

[24] Disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal only if the difference is so marked as to lead to a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice.^[30] The difference must be “unjustifiable” or “gross”.^[31] A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.

[59] Mr Nouri’s sentence was clearly available to the Judge. It was not, to use the language of MacFarlane “lenient or unusually merciful”. The difference is clearly attributable to the circumstances of totality rather than culpability. We are also satisfied there was no “unjustifiable” or gross difference. Even if Mr Nouri’s sentence could be regarded as lenient, that fact alone would not on its own warrant us interfering with Mr Pearce’s sentence. The appeal against sentence is dismissed.

Result

[60] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Mr Nouri pleaded guilty to other charges relating only to him.

^[2] R v Nouri DC Auckland CRI-2010-004-6851, 9 July 2013.

^[3] Crimes Act 1961, s 385(1)(c).

^[4] Counsel for Mr Nouri had prior to the trial on 9 March 2012 given notice pursuant to ss 39 and 42 of the Evidence Act 2006 that he may challenge Mr Pearce’s veracity and propensity. On 18 July 2012 counsel for Mr Nouri provided Mr Pearce with his client’s “brief of evidence”.

^[5] R v Taylor [2007] 2 NZLR 250 (CA) at [36]; R v Potter [1984] 2 NZLR 374 (CA) at 376; R v Hayter [2005] UKHL 6, [2005] 1 WLR 605 at [6].

^[6] R v Potter, above n 5, at 376.

^[7] Moffat v R [2009] NZCA 437, [2010] 1 NZLR 701 at [42].

^[8] R v Taylor, above n 5, at [36].

^[9] R v Fenton CA223/00, 14 September 2000 at [26]; Moffat v R, above n 7, at [23] and [42], per Baragwanath and William Young P respectively; Williams v R [2011] NZCA 245 at [11].

^[10] R v Adams (2004) 21 CRNZ 204 (HC) at [33]; see also Gillies v R CA252/05, 28 March 2006 at [30]–[31].

^[11] R v Nouri DC Auckland CRI-2010-004-6851, 27 May 2013 [Summing Up].

^[12] Murdoch v Taylor [1965] AC 574 (HL) at 584 where the House of Lords (per Lord Morris of Borth-y-Gest) held that determining whether one accused had given evidence “against” another did not “call for any investigation as to the motives or wishes which may have prompted the giving of evidence against another person charged with the same offence. It is the nature of the evidence that must be considered. Its character does not change according as to whether it is the product of pained reluctance or of malevolent eagerness”.

^[13] R v Nouri DC Auckland CRI-2010-004-6851, 28 September 2011 and Nouri v R [2012] NZCA 35. Further, Mr Nouri sought to have his trial adjourned after he was named in a newspaper article asserting that large amounts of methamphetamine were being brought into New Zealand from Iran. Judge Gittos granted an adjournment: R v Nouri DC Auckland, CRI2010-004-6851, 23 July 2012. By going to trial, Mr Nouri lost the opportunity to receive a potential discount at sentencing for pleading guilty and/or assisting the police. Such a discount would have been substantial.

^[14] R v Rhodes (No 3) (1991) 7 CRNZ 641 (HC).

^[15] At 644, relying on R v Miller [1952] 2 All ER 667.

^[16] At 642.

^[17] R v Miller [1952] 36 Cr App R 169.

^[18] At 669, per Devlin J.

^[19] Evidence Act, ss 39 and 42.

^[20] R v Nouri DC Auckland CRI-2010-004-6851, 4 June 2013 at [5]. It seems Mr Nouri received minimal notice of Mr Pearce’s proposed evidence against him. It was limited to a one page document provided a few days prior to trial.

^[21] Davidson v R [2012] NZCA 391 at [38].

^[22] R v Nouri DC Auckland CRI-2010-004-6851, 7 June 2013 [Ruling 5 of Judge G V Hubble] and R v Nouri DC Auckland CRI-2010-004-6851, 7 June 2013 [Ruling 6 of Judge G V Hubble].

^[23] Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [20].

^[24] Moffat v R , above n 7, at [42].

^[25] R v Winfield [1939] 4 All ER 164 (Crim App) at 165. See also Stirland v Director of Public Prosecutions [1944] AC 315 (HL) at 326–327: “An accused who ‘puts his character in issue’ must be regarded as putting the whole of his past record in issue. He cannot assert his good conduct in certain respects without exposing himself to inquiry about the rest of his record so far as this tends to disprove a claim for good character”.

^[26] Ruling 6 of Judge G V Hubble, above n 22. The Judge initially excluded evidence of these convictions but noted at [15] of the Summing up, above n 11, that “they came in eventually because of the way the law operates and because of the way questions were answered.”

^[27] Summing up, above n 11 at [15]–[19].

^[28] The reasoning of the Crown was that the combined 2010 and 2011 offending involved a total of 559.9 grams of methamphetamine falling in totality at the lower end of band four (ten years to life imprisonment) in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[29] MacFarlane v R [2012] NZCA 317.

^[30] R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223.

^[31] R v Rameka [1973] 2 NZLR 592 (CA) at 594.