R v H HC Auckland CRI 2006-019-8458 [2009] NZHC 161 (2 March 2009)

Last Updated: 27 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2006-019-8458}

THE QUEEN

v

H

Hearing: 13 February 2009

Appearances: D Johnstone and K Cato for the Crown

S Bonnar and J Cheng for Mr H

Ruling: 18 February 2009

Reasons: 2 March 2009

_{JUDGMENT OF WOODHOUSE J}

This judgment was delivered by me on 2 March 2009 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors:

Mr D Johnstone, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr S Bonnar, Barrister, Auckland

R V H HC AK CRI 2006-019-8458 18 February 2009

[1] Mr H faced seven charges of supplying methamphetamine. The Crown intended to adduce in evidence recordings of 64 intercepted telephone communications and transcripts of those communications. Most of the transcripts were translations from telephone discussions in Mandarin or Cantonese.

[2] In opening the Crown referred in some detail to the transcripts. Around three days into the trial, at the point where the Crown was about to formally produce this evidence, there was an objection to its admissibility by Mr Bonnar on behalf of Mr H .

[3] The objection was made in the absence of the jury. I received submissions in writing from Mr Bonnar supplemented by oral submissions, and oral submissions from Mr Johnstone on behalf of the Crown. I made a ruling that all of the challenged evidence is admissible. Because of delays that had already occurred in the trial, with interruptions for the jury, I advised that I would give my reasons in due course. These are my reasons.

[4] The defence submission was that the Crown failed to comply with some of the provisions of s 24 of the Misuse of Drugs Amendment Act 1978. This section is as follows, with the emphasis being that given by Mr Bonnar:

“Particulars of a private communication intercepted pursuant to an interception warrant or an emergency permit shall not be received in evidence by any Court against any person unless the party intending to adduce it has given to that person reasonable notice of his intention to do so, together with –

a) A transcript of the private communication where he intends to adduce it in the form of a recording, or a written statement setting forth the full particulars of the private communication where he intends to adduce oral evidence of it; and

b) A statement of the time, place (if known), and date of the private communication, and of the names and addresses of the parties to the communication, if they are known.”

[5] Because the Crown wished to adduce the recordings of the intercepted communications, there were three pre-conditions under s 24 to the admission of the evidence. These were expressed by Mr Bonnar as follows:

(1) The prosecution must given reasonable notice of the intention to adduce the evidence to the accused; AND

(2) Where the actual recording (in the present case the conversations recorded on the [magneto optical storage] Disc) is intended to be adduced, the prosecution must provide a transcript of the private communication to the accused, AND

(3) The prosecution must provide the accused with a statement of the time, place (if known), and date of the relevant private communication, and of the names and addresses of the parties to the communication, if they are known.

[6] The pre-conditions which Mr Bonnar submitted had not been met were the first and the third, although they were logically dealt with in reverse order. The third pre-condition concerns compliance with s 24(b). The essence of the submission under s 24(b) was that it had not been complied with because the full names and the addresses of the parties to the communications were not supplied in respect of each of 64 communications. No issue was raised by Mr Bonnar in relation to the statement of time, place and date required by s 24(b). The submission on the requirement that reasonable notice be given was that the defence had notice of 11 of the 64 communications around 10 days before the Crown opened and that this was not reasonable notice.

Background

[7] Mr H was arrested, with a number of others, in December 2006. Before depositions a police officer gave notice to all of the accused, including Mr H . This notice commenced as follows:

I hereby give you notice in terms of Section 24 of the Misuse of Drugs Amendment Act 1978 that the particulars of private communications intercepted pursuant to Interception Warrants will be given in evidence at your depositions hearing due to commence at the Auckland District Court on

19^th November 2007, and any subsequent proceedings in the Auckland High

Court.

The following is a statement of the date, time and place of the private communication and of the names and addresses of the parties to the communication, if they are known.

[8] Following this there was a schedule setting out details of a large number of intercepted communications including, in respect of each communication, the particulars required by s 24(b). Mr Bonnar accepted that this notice fully complied with s 24 in respect of the intercepted communications referred to in the schedule. I agree that this notice complies with s 24. I will refer to it as the “pre-depositions notice”.

[9] The parties to the communications in question before me, where they were known, are (with family names first in respect of Chinese people): Wei Zhong, H Chen-Wei, Xiao Pang, Zhou Ri Tong, and Alan Clinton McQuade. All of these people were parties, or allegedly parties, to communications recorded in the pre-depositions notice. They were therefore people whose names and addresses were supplied, in that notice, in conformity with s 24(b).

[10] A summary provided by Mr Bonnar indicated that, out of the total of 64 communications and related transcripts the Crown sought to adduce in this trial, only five were referred to in the pre-depositions notice. The Crown did not challenge this.

[11] On 12 March 2008 the Crown Solicitor wrote to counsel acting for the accused in what by then had become three separate trials. Mr H ’s trial, with three others, was to be the first trial. The letter from the Crown Solicitor went to Mr Bonnar as counsel for Mr H . The relevant parts of this letter are as follows:

Please find enclosed schedules of the conversations relevant to the counts in the indictments laid in respect of trials 1 and 2. ... The transcripts of intercepted communications have not yet been completed to an evidential standard. It is anticipated that the conversations identified in the schedule for trial 1 will be completed and disclosed within the week or so. ...

The enclosed schedules are provided in order to assist counsel to take instructions from their clients prior to callover. Whilst I expect that additional conversations may be transcribed for trial, this initial summary covers the relevant conversations identified thus far. The references will assist you to identify the content of relevant conversations on the disclosure summary.

...

(emphasis added)

[12] The schedule enclosed with this letter provided particulars of a large number of intercepted communications. The particulars in each case were the date of the telephone call (or text message), the time the call commenced, and the telephone (or in some cases telephones) that was being monitored identified with a surname and the telephone number.

[13] On 27 March 2008 the Police sent Mr Bonnar, on behalf of Mr H , various documents including transcripts of intercepted communications. The letter includes the following statements:

...

These transcripts are the final version of transcripts to be used during trial 1.

...

As this matter is on-going further disclosure will be made as it becomes available. Please do not hesitate to contact me if you require any further information.

(emphasis added)

[14] From another schedule helpfully provided by Mr Bonnar, and discussions I

had with both counsel, I have calculated that this letter would have sent transcripts of

53 out of the total of 64 communications sought to be adduced by the Crown, including the five in the pre-depositions notice. If there is an error in this calculation it is likely to be minor, and the precise number is not material.

[15] On 2 April 2008 the trial of Mr H and three co-accused was set down to commence on Monday 9 February 2009, with the trial estimated to take five weeks.

[16] I convened a pre-trial conference on 3 February 2009. By then two of the four co-accused had pleaded guilty. As a result it was anticipated that the trial would take approximately three weeks, but the start date of 9 February 2009 remained. The Crown advised that there were some further transcripts of intercepted communications still to be served. I directed that any further transcripts be provided to the defence by 5:00 p.m. on 4 February 2009. Eleven further transcripts relevant to the case against Mr H were served by the Crown. One was received by Mr Bonnar on 5 February 2009 at 11:50 a.m. and the remainder were sent by e-mails to Mr Bonnar just before 4:00 p.m. on 5 February 2009.

[17] A number of pre-trial applications arose which could not be dealt with before the commencement date of 9 February 2009. These matters were scheduled to be dealt with on 9 February 2009, but were deferred to 12 February 2009, with the trial then set down to commence on 13 February 2009. The pre-trial matters required to be dealt with included a late application by the Crown to amend the indictment against Mr H and the remaining co-accused, Mr Wu. In addition, Mr Wu had absconded while on bail and the Crown applied for an order that the trial proceed in his absence. The matters to be dealt with did not include an application by Mr H for further time to consider the transcripts provided on 4 and 5

February 2009, or any other defence application related to any of the communications or transcripts.

[18] Because Mr Wu had absconded, on 13 February 2009 both accused were arraigned, not guilty pleas entered on behalf of Mr Wu, the jury was selected, and the trial then adjourned to 10:00 a.m. on Monday, 16 February 2009, when the Crown opened.

Section 24(b)

[19] Mr Bonnar submitted that there was failure to comply with s 24(b) in respect of all of the communications, apart from the five referred to in the pre- depositions notice. This was because the Crown’s notice of intention to adduce the communications was not accompanied by a statement of “the full names and addresses of the parties to” these communications. Mr Bonnar accepted that the relevant information could have been contained in the transcripts themselves: see R v Johns [1987] 1 NZLR 136 at 141, (line 37 ff); (1986) 2 CRNZ 260. But in this case the transcripts simply record, except in the case of Xiao Pang, the surnames or family names of the parties involved in the conversations, where they were known. In Johns the Court of Appeal held that it is implicit in s 24(b) that if the Police know first names and surnames of parties, they must give both. As the pre-depositions notice makes clear, first names as well as surnames were known. The transcripts did not contain addresses of the parties to the communications.

[20] In my judgment, on the facts of this case, including the series of communications from the Police and Crown Solicitor to Mr Bonnar on behalf of Mr H , there was compliance with s 24(b). The pre-depositions notice, which was a fully complying notice, contained the full names and addresses of the parties to the communications relevant to the present issue. Mr Bonnar acknowledged that to be

the case. In consequence, the full names and addresses of all of the known parties to the communications in question could easily be ascertained, if there was any doubt, from the pre-depositions statement. Mr Bonnar did not submit that there was any doubt. The submission that there was failure to comply with s 24(b) was therefore dependent on the proposition that the full names and addresses had to be provided seriatim for each communication; either in a separate schedule listing each communication, as with the pre-depositions notice, or in the transcripts.

[21] There is no question as to the mandatory nature of the provisions of s 24; it is mandatory that reasonable notice be given and it is mandatory that the appropriate documents and information be given as prescribed by paragraphs (a) and (b) of s 24. But s 24 is not prescriptive as to form. In Johns the Court said, at 140 (line 12 ff);

263:

Although s 24 is clearly mandatory in its requirements it says nothing as to the manner in which notice shall be given except that it shall be reasonable notice of the party's intention to adduce the relevant evidence.

[22] Section 24 requires that the reasonable notice be given “together with” the transcripts and the s 24(b) statement. The meaning of the words “together with” has to be determined having regard to the purpose of this provision, and related statutory provisions, as well as the words actually used. The words actually used do not expressly require that the s 24(b) statement is to be delivered contemporaneously with the reasonable notice. And there is nothing in s 24, or elsewhere in the Act, which provides any support for Mr Bonnar’s submission that every communication sought to be adduced must have its individual itemisation of the s 24(b) particulars.

[23] The purpose of s 24 was stated in Johns at 140 (line 14 ff); 263 as follows:

Its purpose is obvious enough. It is to enable an accused to consider evidence proposed to be given against him before it is given; no doubt to check the legality of what has been done and the accuracy of the transcriptions made by the police.

The statement of particulars required by s 24 must obviously be given in a manner, and at a time, which enables these purposes to be met both in relation to time, and in relation to ability to identify individual conversations and parties to conversations so that inquiries can be made if necessary. As a matter of fact, these objectives have been met.

[24] The words “together with” can be given sensible meaning consistent with the purpose of the provision by conveying the different types of information and documents required by s 24 at different times. In Johns case it was accepted that all of the relevant s 24(b) information could be contained in the transcript. But the Court did not hold that, if there was not a separate s 24(b) statement for each communication, all of the information had to be contained in the transcript or transcripts.

[25] Mr Bonnar acknowledged that a notice containing all the s 24(b) particulars in advance of delivery of the transcripts, but accompanied by a statement that the transcripts would be coming in due course, would meet the requirements of s 24(b). In my judgment it would. This did not occur here in express terms. But all of the information required by s 24(b) said not to have been supplied in this case, was in fact supplied in the pre-depositions notice. The subsequent advice from the Crown Solicitor and the Police, and the transcripts subsequently sent, would not have left a reasonable doubt that the relevant full names and addresses were those originally provided. No question of doubt was raised with me. In addition, the advice from the Police and the Crown Solicitor to Mr H , through his counsel, made clear that there would be, or at the least there might be, additional communications which the Crown would seek to rely on. Had there been further communications between parties whose full names and addresses had not earlier been provided, s 24(b) would not have been complied with. But that did not occur.

[26] For these reasons I was satisfied that the mandatory requirements of s 24(b)

were met.

Reasonable notice

[27] The issue about reasonable notice was whether delivery of the further 11 transcripts by the Crown to Mr Bonnar on 4 and 5 February 2009 was reasonable having regard to the length of time available to consider the transcripts and related recordings before the trial commenced. The trial commenced in substance with the Crown opening on 16 February 2009.

[28] One aspect of the submission can be quickly disposed of. This concerned the Crown’s failure to comply with my direction that all further transcripts be supplied by 5:00 p.m. on 4 February 2009. Only one of the 11 was supplied as directed, with

the remainder coming about 24 hours later. The fact of failure to comply with the Court’s direction could not of itself result in the notice being unreasonable. It is the consequences for the defence, if any, that need to be addressed.

[29] What constitutes “reasonable notice” was discussed by the Court of Appeal in

Johns at 140, (line 50 ff); 264:

The section refers to “reasonable notice”. Reasonable notice is an expression much used by lawyers. The reasonableness of a notice must be assessed against its length (which relates to the time at which it is given), the circumstances in which it is given and its content. A notice under s 24 will not be a reasonable notice if it is given so close to the hearing at which it is intended to be adduced that the accused person or his legal advisers cannot check the accompanying transcript against the tape for the identification of voices and the circumstances in which they are said to be used.

There were further observations on aspects of reasonableness, but they are not relevant to this case.

[30] The assessment that is required here is one of fact. The essence of the submission, apart from the failure to comply with the timetable direction, was as follows:

[S]ervice in February of this year (a matter of days before the trial was due to commence) of transcripts of a large number of additional private communications sought to be adduced by the Crown does not constitute “reasonable” notice in all of the circumstances of this case.

[31] There was no evidence put before me of any particular difficulty. Nor did Mr Bonnar point to any specific difficulty encountered by him or his client. I can take account of my knowledge of what was occurring with the conduct of the case before the Court, some of which I have noted. I recognise that some added pressures were placed on Mr Bonnar and his client because of late disclosure by the Crown of new witness statements as well as the transcripts in question. And other new transcripts were delivered, but in the end not sought to be adduced in evidence. In addition, Mr H and his counsel had to contend with a very late application to amend the indictment which involved, in particular, the addition of a further significant count. Against this is the fact that, as matters developed, time became available to Mr H and Mr Bonnar which time was not going to be available when the transcripts were delivered. The amount of additional time that became available was, in my

judgment, sufficient to enable Mr H and his counsel to deal with the further communications before the Crown opened on 16 February 2009.

[32] This conclusion on the facts known or presented to me is reinforced by the following:

a) Mr Bonnar responsibly and candidly acknowledged that there were no material instructions that he could take, and by implication no information his client could provide, in respect of the 11 additional communications other than those allegedly involving Mr H himself.

b) Only three of the 11 conversations were said to involve Mr H as a party, with the other party in all three being Mr Wei. The total length of the three conversations was 2 minutes 18 seconds. (These are the conversations recorded at pages 122, 131, and 132 of the transcript bundle produced at the trial.)

c) There was no suggestion that there was need to make inquiries of any of the other parties to any of the 11 communications.

[33] For these reasons I was satisfied that reasonable notice was given.

[34] This conclusion does need to be accompanied by an observation about the disclosure of evidence by the prosecution. Mr H and his co-accused were arrested in December 2006. Depositions were in November 2007. The time from arrest to depositions was a long time. There was a further period of almost 15 months before the commencement of the trial. I am aware of the fact that the Police operation involved the interception of a large number of communications. There may be a range of other matters which presented difficulties in putting all the relevant evidence together for disclosure. But, on the face of it, the time that elapsed between arrest and the commencement of the trial should have meant that all transcripts sought to be relied on were provided months before the trial started.

A separate issue : was there implied consent by the defence to admit the evidence?

[35] For the Crown, Mr Johnstone raised an issue not so far dealt with. This was whether Mr H on an earlier date had effectively consented to admission in evidence of the recordings of the intercepted conversations and the transcripts. The foundation for this submission came from a pre-trial application made by the Crown and the response of Mr H in a notice of opposition.

[36] On about 20 June 2008 the Crown filed and served a notice pursuant to various provisions of the Evidence Act 2006. It included the following:

2. Notices pursuant to ss 135(1) & (3) of the Evidence Act

(a) s 135(1)

The Crown proposes to offer in evidence a document that purports to be a translation into English of a document in a language other than English.

(i) The document that purports to be a translation is that part of the 3 volumes of evidential transcripts/translations, which comprises translations of certain of the conversations intercepted and recorded during the course of the operation pursuant to interception warrants.

(ii) The document in a language other than English is the Magneto Optical storage disk and the information electronically stored upon it, namely non-English conversations intercepted and recorded during the course of the operation pursuant to interception warrants.

(b) s 135(3)

The Crown proposes to offer in evidence a document that purports to be a transcript of information that is recorded in a way that is capable of being reproduced as sound, namely that part of the 3 volumes of evidential transcripts/translations which comprises transcripts of English language conversations intercepted and recorded on the Magneto Optical storage disk during the course of the operation pursuant to interception warrants.

[37] On behalf of Mr H , Mr Bonnar filed a notice of opposition to these applications. The notice in respect of the applications under ss 135(1) and (3) was as follows:

2. Notices pursuant to ss 1351(1) & 3 Evidence Act 2006 (a) s 135(1)

The Respondent DOES NOT OPPOSE the Crown application to offer in evidence a document purporting to be a translation into English of non-English intercepted communications, HOWEVER the Respondent does not, at this time, accept the content of the translations as an accurate translation pursuant to section 135(2);

UPON THE GROUNDS that the Respondent has not yet had sufficient time and a fair opportunity to scrutinise the translations for accuracy. It is anticipated that the Respondent will have scrutinised the translations for accuracy prior to trial and will, if necessary, be in a position to call evidence to the contrary, pursuant to section

135(2);

AND UPON SUCH FURTHER GROUNDS as shall be advanced at the hearing of this application.

(b) s 135(3)

The Respondent DOES NOT OPPOSE the Crown application to offer in evidence a document purporting to be a transcript of information (the evidential transcripts/translations) recorded in a way that is capable of being reproduced as sound (the Magneto Optical storage disk and the information electronically stored upon it

– the intercepted communications) PROVIDED THAT the relevant sound recordings are played in Court during the trial, pursuant to

section 135(4);

UPON THE GROUNDS that the accuracy of the purported translations and transcripts is not accepted, the attribution of voices on the intercepted communications is at issue, and it will be for the jury to determine at trial whether the accused / respondent is a person speaking in the intercepted communications and to determine what was said by the participants in the intercepted communications.

AND UPON SUCH FURTHER GROUNDS as shall be advanced at the hearing of this application.

To the extent it is necessary to do so, the Respondent HEREBY APPLIES for a direction pursuant to s 145(4)(b) [sic] that the relevant sound recordings are played in Court during the trial upon the grounds set out above.

The reference to s 145(4)(b) in the final paragraph is an obvious slip. The relevant provision is s 135(4) as referred to earlier in the notice of opposition.

[38] The applications of the Crown were heard by Priestley J and dealt with in a judgment dated 27 August 2008. In respect of the applications under s 135 the Judge noted s 24 in passing, and the corresponding provision in s 312L of the Crimes Act

1961, simply as provisions which “relate to disclosure of the transcripts”. He dealt with a point of no present relevance and then recorded “three potential areas of critical concern to defence counsel”, who included Mr Bonnar on behalf of Mr H . These were issues of voice identification, whether transcriptions were accurate, and whether translations were accurate (at [40]-[41]). No particular directions were required to enable the Crown to proceed as proposed. This is because the structure of s 135 is to provide protective mechanisms for the defence as set out in ss 135(2) and 135(4). Subsections (2) and (4) are as follows:

(2) The translation is presumed to be an accurate translation, in the absence of evidence to the contrary.

(4) A party who offers a transcript of information or other matter in a sound recording under subsection (3) must play all or part of the sound recording in court during the hearing if—

(a) the sound recording is available; and

(b) the Judge so directs, either on the application of another party or on the Judge's own initiative.

There was a direction that the accused inform the Crown by 30 October 2008 of objections to accuracy and voice attributions. It is not clear whether the accused did give advice to the Crown by the date stipulated, but this is not relevant to the present matter.

[39] I have recorded this background in respect of this possible issue in case there is an appeal. However, for several reasons I do not intend to express any conclusion on the issue. First, my reasons for ruling against Mr Bonnar’s objection are those already recorded, and these did not include a conclusion that Mr H had already consented to the evidence being admitted. Second, because I have found that there are alternative grounds to overrule the objection, it is not strictly necessary to decide this point. Third, no argument was developed before me by reference to relevant principles and authorities. Amongst other things there would appear to be important issues having regard to the mandatory terms of s 24, its relationship to the provisions of s 135, and in particular s 135(4) of the Evidence Act 2006, whether the intended beneficiary of the mandatory provisions of s 24 could, for example, waive the statutory requirement, and whether there can be implied waiver. A further reason for not embarking on my own analysis of these issues is that, if the notice of opposition amounted to consent to recordings and transcripts being admitted in evidence, or

some form of effective waiver, this would not apply to the transcripts disclosed by the Crown on 5 February 2009 and the recordings from which those transcripts

_came.

Peter Woodhouse J