Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 19 May 2017
IN THE COURT OF APPEAL OF NEW ZEALAND
|
|
BETWEEN
|
Appellant |
AND
|
Respondent |
Hearing: |
16 March 2017 |
Court: |
Cooper, Woodhouse and Collins JJ |
Counsel: |
D J Allan for Appellant
S K Barr for Respondent |
Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Woodhouse J)
[1] Following a trial in the District Court at Hamilton before Judge Ruth and a jury, the appellant, Richard Williams, was found guilty on one charge of manufacturing methamphetamine and three charges of possessing equipment, materials or precursor materials for the manufacture of methamphetamine.[1]
[2] Mr Williams appeals against his conviction. He contends that there was a miscarriage of justice because the Judge erred in:
- (a) admitting evidence from Edward Mikaere, who had been jointly charged with Mr Williams;
- (b) failing to limit cross-examination of Mr Mikaere by the Crown, who had called him as a witness, after Mr Mikaere had been declared hostile; and
- (c) failing to give a warning about the reliability of Mr Mikaere’s evidence.
Extension of time to appeal
[3] The notice of appeal was filed over a year out of time. An extension of time to appeal is sought.
[4] We are satisfied that an extension should be granted. There is some explanation for the delay, although not particularly persuasive. More importantly, one ground of appeal raises a point of interpretation of s 27 of the Evidence Act 2006 (the Act), which does not appear to have earlier been considered.
Factual background
[5] In September 2014 police received information that people were manufacturing methamphetamine in a shed at Manaia in the Coromandel. When police arrived at the property they found Mr Williams and John Wilson walking away from a shed. Mr Mikaere was found inside the shed. A fourth man, Johnson Renata, hid and was later arrested fleeing from the shed as it caught fire. Police found evidence that pseudoephedrine extraction and methamphetamine manufacture had taken place in the shed.
[6] The four men were jointly charged with manufacture of methamphetamine and three charges of possessing equipment, materials or precursor substances for the manufacture of methamphetamine.
[7] Mr Mikaere was interviewed by two police officers the same day. The interview was digitally recorded. Mr Mikaere admitted involvement in manufacture of methamphetamine and made statements incriminating the three other men.
[8] Mr Mikaere pleaded guilty to the four charges and was sentenced. This occurred before the trial of Mr Williams and the two other defendants commenced.
[9] Mr Mikaere was called as a witness by the Crown. At the outset he acknowledged that he had pleaded guilty to the charges faced by the three defendants and that he was a sentenced prisoner. He then declined to answer questions from the prosecutor. The Crown made an application under s 94 of the Act for Mr Mikaere to be declared hostile to enable the Crown to cross-examine Mr Mikaere.
[10] The Crown’s application was opposed by the three defendants on two grounds. The first appears to have been based on a possibility that Mr Mikaere’s police statement might become evidence without Mr Mikaere being available for cross-examination. It is difficult to see how that could have happened. In any event, the Crown made it clear that Mr Mikaere would be available for cross-examination by defence counsel. The second ground of opposition was that, if Mr Mikaere continued to refuse to answer questions, as he had done in the preliminary questioning by the Crown, the defendants would be unable to effectively crossexamine Mr Mikaere on those parts of the statement that incriminated the defendants. The Judge recorded that he accepted that the defendants would be unfairly hampered in presenting their defences if that happened, but concluded that as matters stood at that point the Crown was entitled to the declaration of hostility it sought and that the Crown would be entitled to have the recording of Mr Mikaere’s interview played to the jury as part of the evidence if Mr Mikaere continued to refuse to answer questions.
[11] Mr Mikaere was then cross-examined by the Crown; his statement to police was put in evidence by playing the recording; he was cross-examined by defence counsel, and provided a number of answers favourable to the defendants; and his evidence concluded with re-examination by the Crown involving cross-examination. A transcript of the police interview was put in evidence with copies provided to the jury.
Grounds of appeal
[12] There were, in substance, five grounds of appeal:
- (a) Ground one: Mr Mikaere’s statement to police was admitted as evidence against Mr Williams (and the two other defendants) in breach of s 27(1) of the Act. This was advanced as Mr Williams’ primary ground of appeal. The remaining grounds were argued as alternative grounds, to be assessed cumulatively, if the primary ground was rejected.
- (b) Ground two: Mr Mikaere’s statement to police was unfairly prejudicial to Mr Williams and should have been excluded pursuant to s 8(1)(a) of the Act.
- (c) Ground three: Part of Mr Mikaere’s statement, relating to drug dealing in Christchurch, should have been excluded because it was irrelevant to the charges against Mr Williams and it had not been admitted as propensity evidence.
- (d) Ground four: After Mr Mikaere was declared hostile, the Judge erred by failing to limit the cross-examination of Mr Mikaere by the prosecutor in examination-in-chief and in re-examination.
- (e) Ground five: The Judge erred by failing to give warnings to the jury under s 122 of the Act about the reliability of Mr Mikaere’s evidence and that he had a motive to make a false statement to police.
Evaluation
Ground one: The application of s 27(1) of the Act
[13] Section 27(1) of the Act, in force at the relevant time, was as follows:[2]
27 Defendants’ statements offered by prosecution
(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.
[14] Mr Allan’s argument for Mr Williams was that Mr Mikaere’s statement to police was not admissible against Mr Williams because Mr Williams was a “codefendant” of Mr Mikaere. The foundation for this proposition was the fact that Mr Williams and Mr Mikaere were jointly charged. The unstated premise of this argument was that Mr Mikaere remained a co-defendant of Mr Williams notwithstanding the fact that Mr Mikaere had been convicted and sentenced.
[15] Mr Allan referred to the following passage in Judge Ruth’s summingup, which related to Mr Mikaere and his evidence:
Firstly, he was charged of course with these other three initially and he pleaded guilty and has been dealt with as you heard. The fact that he has pleaded guilty has no bearing at all on the guilt or innocence of these three men. He pleads guilty. He accepts his part in this matter. That does not mean that therefore any or all of these three men is guilty as well. The point about Mr Mikaere’s status in this matter is that because he is a sentenced person who has pleaded guilty it was competent for the Crown to bring him as a witness and that is all he is in this case, a witness.
(Emphasis added by Mr Allan.)
[16] Mr Allan used the emphasised part of this passage to seek to illustrate his argument of error by the Judge. Mr Allan submitted that, although Mr Mikaere was compellable to give evidence against Mr Williams, pursuant to s 73 of the Act, his statement nevertheless remained subject to s 27(1). Mr Allan submitted that Mr Mikaere was not, as the Judge said, simply a witness; he was a witness in respect of whom Mr Williams was a co-defendant.
[17] Mr Allan did not cite any authority in support of his proposition. Mr Barr, for the Crown, advised that he was not aware of Mr Williams’ point having been raised in any other appellate case. Mr Barr did refer to two decisions of this Court with comparable facts.[3] The point now advanced by Mr Williams was not advanced for the defendants on appeal in the two other cases. In those cases this Court did not find any impediment to the prosecution calling evidence from a witness who had previously been convicted of the offences for which the defendants were on trial and, upon that witness being declared hostile, producing that witness’s out-of-court statement.
[18] For the reasons that follow, we are satisfied that s 27 did not apply to Mr Mikaere’s statement to police and that the statement was admissible in evidence against Mr Williams.
[19] The words used in s 27(1) appear to have no application to Mr Mikaere’s statement. Mr Allan’s focus was on the word “co-defendant” coupled with the proposition earlier recorded that Mr Williams was a co-defendant of Mr Mikaere because they had originally been charged jointly. There is no definition of “codefendant” in the Act. The meaning is to be ascertained from the text and in the light of the purpose of the provision.[4] Regard must be had to all of the words used in s 27(1). The critical words are “a co-defendant in the proceeding”. Mr Williams was not a co-defendant in the proceeding with Mr Mikaere. That conclusion seems so obvious that it is, perhaps, not surprising that the interpretation now being advanced has not been advanced in earlier cases with comparable facts. The word “proceeding” is defined in the Act, but this does not alter the plain meaning of s 27(1).
[20] If the enquiry extends beyond the relevant words used in s 27(1) this conclusion is reinforced. Section 73(2) of the Act is the provision which enabled the Crown to call Mr Mikaere and the Court to compel him to give evidence. It provides that “an associated defendant” is not compellable to give evidence for or against the defendant in a criminal proceeding unless the associated defendant is being tried separately from the defendant or the proceeding against the associated defendant has been determined. “Associated defendant” is defined in s 73(4) and applied to Mr Mikaere. The provision is as follows:
(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; or
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
[21] The use of the expression “associated defendant” assists in interpreting the expression “co-defendant”. They have different meanings. This was explained in the Law Commission’s report which led to the Act:[5]
[340] The Code rule dealing with the compellability of co-defendants uses the term “associated defendant” ... . An “associated defendant” is a person who has been charged with an offence that is the same as or related to the offence for which a defendant in a criminal proceeding is being prosecuted. Associated defendants may be tried jointly or separately. The term “associated defendant” is therefore wider than the term “co-defendant”.
This explanation of purpose, coupled with the text of s 73 when compared with the text of s 27, supports the conclusion that the words “defendant” and “co-defendant” as used in s 27 refer to people who are being tried together.
[22] These conclusions are consistent both with the reasons for the rule now reflected in s 27(1) and the legislative history of s 27. The Law Commission had recommended reform of the law relating to the admissibility of out-of-court statements of one defendant against another defendant in a joint trial, by allowing such statements to be admissible for the prosecution against all defendants in a joint trial, or against none.[6] At the Select Committee stage of the passage of the Evidence Bill 2005, this proposal was rejected. The reasons were recorded as follows:[7]
Defendants’ statements offered by prosecution
We recommend that clause 23 [now s 27] be amended so that a defendant’s statement would be inadmissible against a co-defendant in joint criminal trials. A statement made by a defendant would be admissible only against that defendant. This would maintain the current law relating to statements by co-defendants. In our view the admission of such a statement against a co-defendant would unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and complexity of many joint trials.
[23] Section 27 has been amended twice, but neither of the amendments, and explanatory notes or commentary leading to the amendments, indicate that s 27(1) was intended to apply beyond joint trials.[8]
[24] The primary reason for the protection afforded to a codefendant in s 27(1) is that the co-defendant would have no means of challenging the out-of-court statement unless the defendant who made the statement chose to give evidence, something over which a co-defendant has no control. What occurred in the present case, with all defendants being able to cross-examine Mr Mikaere, illustrates in a practical sense why s 27(1) had no application and why there was no unfairness to Mr Williams. The Judge’s direction to the jury that Mr Mikaere was simply a witness, criticised by Mr Allan, was entirely accurate.
Ground two: Mr Mikaere’s statement to police was unfairly prejudicial
[25] The submission in support of this ground was simply that the Judge made an error by failing to rule that Mr Mikaere’s statement to police was unfairly prejudicial and that it should have been excluded under s 8(1)(a) of the Act. The argument was not developed.
[26] We are satisfied that this ground has no merit. Mr Mikaere’s statements affecting Mr Williams were undoubtedly prejudicial to Mr Williams but, subject to consideration of one part of the statement, discussed next under ground three, the evidence was not unfairly prejudicial.
Ground three: The Christchurch evidence
[27] In the police interview Mr Mikaere said that Mr Williams had required him to take methamphetamine to Christchurch. He said there were three trips, with Mr Williams going with him on the first trip. He said quantities of between two and five ounces were transported on each occasion and sold for $16,000 an ounce. He made other statements incriminating Mr Williams in these alleged transactions.
[28] Mr Allan submitted that this evidence should not have been admitted for three reasons: it was irrelevant to the charges Mr Williams faced, which related only to manufacture and possession of items in Manaia; there had been no application for the evidence to be admitted as propensity evidence; and the evidence was unfairly prejudicial. In respect of the four alternative grounds — grounds two to five — Mr Allan advanced this ground as the strongest point.
[29] Mr Barr submitted that, although there was no evidence that the methamphetamine Mr Mikaere said was taken to Christchurch had come from the manufacture of methamphetamine in Manaia, the evidence was nevertheless relevant and admissible as background evidence in respect of the charges of manufacture at Manaia to show that there was an ongoing criminal association between the group around the time that Mr Williams purchased a distiller which was the same as a distiller found in the shed at Manaia. This distiller had been purchased by Mr Williams on 9 August 2013 and a boarding pass for a flight from Christchurch, dated 15 August and in Mr Mikaere’s name, was found in a vehicle associated with Mr Williams. It was also submitted that the evidence “bolstered” Mr Mikaere’s evidence that his role in the group was secondary.
[30] We consider that this evidence was of limited probative value and had the potential to be unfairly prejudicial. We are nevertheless satisfied, for the reasons that follow, that there was no miscarriage of justice as a result of the evidence being considered by the jury because this did not create a real risk that the outcome of the trial was affected or render the trial unfair.
[31] The Christchurch evidence, to the extent that Mr Mikaere’s statement referred to alleged conduct of Mr Williams, comes within the definition of propensity evidence. But a propensity evidence direction was not required. This is because the Crown, in respect of this evidence, did not rely on propensity reasoning and the evidence did not involve aspersions on Mr Williams’ character in respects not directly associated with the alleged offending in Manaia.[9]
[32] The remaining question is whether the Judge should have given a direction on the way in which the Christchurch evidence could and could not be used; in particular, whether the Judge should have directed the jury that they could not use the evidence as tending to show that Mr Williams was a person who dealt in methamphetamine.
[33] The Supreme Court made some general observations about directions in Wi v R as follows:[10]
[40] We are of the view that in principle mandatory directions should be reserved for cases in which they are essential to ensure the defendant has a fair trial. It is generally better to leave the extent and content of directions to the trial judge who has the feel of the case. We recognise it was said in Falealili that this approach might tend towards uncertainty and inconsistency. We are not, however, persuaded that this is likely to be a significant problem.
[41] Summings-up should be tailored to the particular case. Specimen directions are helpful when they are required. A very important part of a trial judge’s function is to give the jury as much help as possible by identifying the issues presented by the case and the evidence which is relevant to those issues. The summing up should also, to the extent necessary, explain to the jury in what way evidence should and should not be used. Directions 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.
[34] We are satisfied that a direction was not required because the Christchurch evidence was peripheral and there was no real risk that the jury would use the evidence in an inappropriate way.
[35] We agree with Mr Barr’s submission that little was made of this evidence in the closing addresses of the prosecutor and defence counsel. It was briefly touched on by the Crown in two short passages in a reasonably long closing address and in respect of matters unrelated to any form of propensity argument.
[36] In his summingup the Judge touched only briefly on this evidence. When outlining part of the Crown case against Mr Williams the Judge noted a reasonable number of points made by the Crown and included in his summary a single reference to Mr Mikaere’s boarding pass for a trip to Christchurch being found in the vehicle being used by Mr Williams. The Judge said that this, with the other matters he noted, were relied on by the Crown as showing “links to these men all operating together”. The Judge also noted that both Mr Williams and Mr Renata denied being part of a “drug run” to Christchurch.
[37] Finally, we note that there was no objection from Mr Williams, or the other defendants, to this part of Mr Mikaere’s statement being admitted. The objection had been to the admission of the entire statement, as part of the defence opposition to the Crown’s application to have Mr Mikaere declared hostile. There was ample opportunity for Mr Williams’ trial counsel (not Mr Allan) to raise any issue relating to the Christchurch evidence in the course of the discussions in chambers on the Crown’s hostile witness application. At that point it was highly likely that the video would be put in evidence.
[38] There was a substantial body of evidence against Mr Williams. Having regard to the way in which the case was presented by the Crown, the Christchurch evidence was not of much consequence. There was no miscarriage of justice from this evidence being available for the jury’s consideration without a specific direction from the Judge as to the way in which the evidence should and should not be used.
Ground four: Cross-examination of Mr Mikaere by the Crown
[39] Mr Allan submitted that, after Mr Mikaere had been declared hostile, the Judge failed properly to control the prosecutor’s cross-examination of Mr Mikaere in evidence-in-chief and in re-examination. In Mr Allan’s written submissions the cross-examination said to be objectionable was not identified and this ground of appeal was not developed orally.
[40] We are satisfied that there is nothing in this ground of appeal. Mr Allan responsibly acknowledged, at the outset, that it was accepted that Mr Mikaere was a compellable witness; that there was no error by the Judge in declaring him hostile; and that, as a result, the Crown was entitled to cross-examine Mr Mikaere.
[41] Section 94 of the Act provides that the Judge, on an application to crossexamine, may give the party applying permission to cross-examine the witness to the extent authorised by the Judge. There were no directions from the Judge limiting the scope of cross-examination, but that has not resulted in any unfairness for Mr Williams. There was no application by any defence counsel for directions on the extent of cross-examination by the Crown. That is understandable because the purpose of cross-examination by the Crown was clear — to seek to adduce directly from Mr Mikaere evidence along the lines of what was contained in the statement he made to police and, if he continued to refuse to answer questions, to put the recording into evidence with the transcript. That is what happened.
[42] There was nothing objectionable in the Crown’s questions in re-examination. The questions arose out of cross-examination of Mr Mikaere by defence counsel resulting in evidence which, in large measure, contradicted most of what Mr Mikaere had said in his statement to police and was favourable to Mr Williams and the other two defendants. In re-examination Mr Mikaere was challenged, through crossexamination, on that evidence, but that did not result in unfairness. Given the hostile witness ruling, and Mr Mikaere’s answers to defence questions, the prosecutor was entitled to cross-examine Mr Mikaere in re-examination.
Ground five: Warning under s 122 of the Act about Mr Mikaere’s evidence
[43] Mr Williams contended that the Judge erred by failing to give a warning to the jury under s 122 of the Act about the reliability of Mr Mikaere’s evidence coupled with a warning that Mr Mikaere had a motive to make a false statement to police. Mr Allan acknowledged that the warning about reliability had to be a warning in respect of all of Mr Mikaere’s evidence, not just in relation to what he said in the statement to police.
[44] The relevant provisions of s 122 are:
122 Judicial directions about evidence which may be unreliable
(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
...
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
...
(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4) It is not necessary for a Judge to use a particular form of words in giving the warning.
[45] Mr Allan submitted that an unreliability warning had to be given because there had been a very marked shift between what Mr Mikaere said in his statement to the police and what he said in his direct evidence in Court.
[46] A warning is not mandatory. Section 122(1) reads that “the Judge may warn the jury”. As stated by the Supreme Court in Wi v R, in the passage cited above, what is required in each case is exercise of judgment by the trial Judge having regard to the circumstances.
[47] We are satisfied that a reliability warning was not required. None of the defence counsel sought such a warning. The competing positions of the prosecution and the defence had been made abundantly clear to the jury, as Mr Allan acknowledged. There was no contention for Mr Williams that the Judge’s summingup in respect of Mr Mikaere’s evidence was inadequate or inappropriate in any way other than the absence of formal directions under s 122. The Judge’s directions, relating to Mr Mikaere and to his evidence, include the direction recorded above at [15], where the Judge directed the jury to treat Mr Mikaere like any other witness. This was followed by observations that Mr Mikaere’s evidence presented difficulties for the jury because of the conflict between his statement to the police and his direct evidence in Court and that “the two could hardly be more diametrically opposite”. The cases for the Crown and Mr Williams (and the other defendants) were outlined. Towards the end of this summary, after a reference to Mr Mikaere, the Judge said:
[40] However, again they are the competing matters that you will have to contend with but I simply mention his [Mr Mikaere’s] evidence because you are going to have to make a call on his credibility. Do you believe him? If you do, what part do you believe ... [?]
[48] We are satisfied that s 122(2)(c) did not require a warning to be given. The defence contention that Mr Mikaere had a motive to lie was before the jury. A warning from the Judge that Mr Mikaere had a motive to lie would also have been a two-edged sword for the defence. This is because a balanced direction on this would have required a suggestion that he might have had a motive to lie when he gave evidence favourable to the defendants.
Result
[49] For these reasons we are satisfied that none of the grounds of appeal are made out. The application for an extension of time to appeal is granted, but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Williams DC Hamilton CRI-2013-019-5001, 11 December 2014.
[2] Section 27(1) was amended by s 9(1) of the Evidence Amendment Act 2016, which came into force on 8 January 2017.
[3] R v Mata [2009] NZCA 254 at [6]–[26]; and Pekepo v R [2011] NZCA 305 at [16]–[31].
[4] Interpretation Act 1999, s 5(1).
[5] Law Commission Evidence: Reform of the Law (NZLC R55(1), 1999) (emphasis added).
[6] At [115].
[7] Evidence Bill 2005 (256-2) (select committee report) at 4 (emphasis added).
[8] See Evidence Amendment Bill 2007 (129-1) (explanatory note) at 1–2, which became the Evidence Amendment Act 2007; and Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at 60–67, which led to the Evidence Amendment Act 2016.
[9] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [91].
[10] Wi v R [2009] NZSC 121, [2010] 2 NZLR 11.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2017/176.html