R v Scanlon [2018] NZHC 2664 (8 November 2018)

Last Updated: 12 September 2019

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-063-3068 [2018] NZHC 2664

THE QUEEN

v

IRENE MARGARET SCANLON

Hearing:	15 October 2018
Counsel:	L Dunn for Crown M W Ryan for Defendant
Judgment:	15 October 2018
Reasons:	8 November 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 November 2018 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Almao Douch (Hamilton) for Crown

R v SCANLON [2018] NZHC 2664 [15 October 2018]

Introduction

[1] Ms Scanlon was arraigned on 15 October 2018 and given in charge of the jury on two charges. The one with which I am concerned now is a charge of wilfully attempting to obstruct the course of justice.¹ I gave a results decision on two applications: to admit evidence of an intercepted telephone call against Ms Scanlon and to order specific disclosure against the Crown. I granted the former and refused the latter. I now give my reasons.

Background

[2] Mr Rollie Heke was in a motor vehicle which ran out of petrol and stopped while being chased by Police. This was at about midnight on 13 August 2017. Mr Heke got out of the car and fired at least 15 shots in the direction of police officers using an AK47 military style semi-automatic rifle. Mr Heke fled the area on foot and he was the subject of an intensive Police search which ended on 25 August 2017 when he was located at 10 Daniel Street, Kaingaroa, and arrested. Mr Heke has since pleaded guilty to a charge of using a firearm against law enforcement officers and is awaiting sentence.

[3] The Crown’s case was that over the period of some 12 days during which Mr Heke was at large, he was given help by a number of people so as to avoid arrest. He needed food, shelter and transport.

[4] Ms Scanlon knew Mr Heke well and had been in a domestic relationship with him. The Crown alleged she conspired with Mr Heke for the purpose of assisting him to avoid arrest. Others were part of the conspiracy. The Crown has intercepted communications it wished to call in the trial of Ms Scanlon. Some are between Mr Heke and Ms Scanlon and directly provide evidence of her involvement with him. All but one of the intercepted communications took place on 24 August 2017.

¹ The jury found Ms Scanlon guilty on this charge on 19 October 2018.

Section 22A, Evidence Act 2006

[5] There is one intercepted communication which was in contention. It is the second communication on 24 August 2017, being a conversation between Mr Heke and a Mr Glen Smyth which took place from 09:14:20 to 09:17:50. Ms Dunn for the Crown contended the conversation was admissible against Ms Scanlon pursuant to what is known as the co-conspirators rule which is now codified by s 22A of the Evidence Act 2006. Mr Ryan for Ms Scanlon had a number of objections to the admissibility of the communication. The section provides:

22A Admissibility of hearsay statement against defendant

In a criminal proceeding, a hearsay statement is admissible against a defendant if—

(a) there is reasonable evidence of a conspiracy or joint enterprise; and

(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and

(c) the hearsay statement was made in furtherance of the conspiracy or joint enterprise.

[6] Ms Dunn accepted the Crown had not given written notice of its intention to call evidence of the intercepted communication within a reasonable period before the trial.² The notice was filed and served only on Friday, 12 October 2018. Ms Dunn told me the Crown simply overlooked the matter and it falls within the heading of inadvertent failure. Her submission was I should dispense with the written notice requirements because, given the nature and contents of the conversation, no party has been substantially prejudiced.

[7] I accept there was no substantial prejudice (other than to the jury which had to be sent away while I resolved this matter), and Mr Ryan did not argue to the contrary. To the extent necessary, I waived compliance with s 22 and looked at the matter on its merits.

[8] The Crown had evidence that Ms Scanlon provided Mr Heke with assistance to avoid arrest, and this included purchasing and supplying him with a silver Ford

² Evidence Act 2006, s 22.

Mustang motor vehicle. In the conversation in question, Mr Heke and Mr Smyth discuss a female who is never named. The female’s identity is obviously known to both men. The conversation includes the following passage:

RH What colour’s that Ford brother?

GS I think it was a sil, I I don’t actually see it but I think it was a silver one cause they were talking about, she was talking about that, getting the tools and she didn’t like the fucken cars a piece of shit and doesn’t drive Fords you know. I think it was a silver one but I’m not 100 percent.

RH Yeah like the fucken, the first of the EA ones aye, or or EPS.

[9] There is a further part of the conversation in which Mr Heke talks about the female coming and getting money, even though he never told her to. Mr Smyth assures Mr Heke that the female did not spend any of Mr Heke’s money on “it” and he does not know where she got the money from.

[10] It is clear the jury could draw an inference that Mr Heke and Mr Smyth are involved in an ongoing conspiracy to help Mr Heke avoid arrest, and that the female who got a silver Ford is a part of that.

[11] Ms Dunn accepted the probative value of this conversation is not crucial given the other evidence the Crown has of Ms Scanlon’s involvement with Mr Heke in the period he was evading the Police. However, her submission was that the telephone conversation is relevant and its probative value is bolstered by an intercepted conversation at 4:00 am on 25 August 2017 when, having heard that Mr Heke had been arrested, Ms Scanlon telephoned Mr Smyth and advised she was now stranded in Te Awamutu because Mr Heke had her car. Ms Scanlon confirmed the car she was referring to was the silver Mustang.

[12] Mr Ryan submitted the conversation is inadmissible against his client because s 18 of the Evidence Act has not been complied with. That is to say, there is no evidence that either Mr Heke or Mr Smyth is unavailable as a witness. Hence the conversation is simply inadmissible hearsay.
[13] The issue became whether s 22A operates independently of s 18. I decided that it does.

[14] Section 22A came into effect on 8 January 2017, displacing the common law exception to the hearsay rule for co-conspirators’ statements.³

[15] The rationale for the common law exception was set out by the Court of Appeal in B v Messenger:⁴

[10] The rationale for the admission of evidence of the acts or words of one member of a criminal conspiracy or joint enterprise against another member is that the joint enterprise to commit a crime is considered as implying an authority to each of the members of that enterprise to act or speak in furtherance of the common purpose on behalf of the others ...

[16] Similarly, in Qiu v R the Supreme Court said:⁵

[24] The juristic rationale for the admission of what would otherwise be hearsay is that statements made by one member of a joint criminal enterprise in furtherance of the common criminal purpose are attributed to all members on the basis that there is implied authority in each to speak on behalf of the others. Logically, the existence of the enterprise, and the complicity of anyone whose statement in furtherance of the common intention is sought to be admitted, must be proved before the attribution can be made...

[17] It can be seen that the rationale for admitting evidence under s 22A is quite different to that underlying s 18. The former, once the evidential threshold of the existence of a conspiracy of which the defendant is a member has been crossed, treats statements as being adopted by the defendant. The latter allows evidence of statements to be given where to call the maker of the statements as a witness is impossible or unduly difficult and there is reasonable assurance of the reliability of the statements.

[18] I note there are many decisions where s 22A, or its common law predecessor, have been applied without reference to s 18.⁶ Moreover, the Court of Appeal in the

3. The common law exception had been expressly preserved to that point by s 12A of the Evidence Act.

⁴ R v Messenger [2008] NZCA 13; [2011] 3 NZLR 779.

⁵ Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1.

6. See, for example, R v Hines [2017] NZHC 437; R v Keil [2017] NZHC 2221; R v Britton [2017] NZHC 883; R v Bublitz; D (CA425/2016) v R [2016] NZCA 566; O’Carroll v R [2016] NZCA 510; R v Ali [2016] NZHC 2223; Bailey v R [2015] NZCA 37; Kayrouz v R; McKenzie v R [2013] NZCA; Yu v R [2013] NZCA 169.

recent decision of De Soto v R suggested in obiter that evidence could be admitted under either section, as opposed to having to satisfy the requirements of both:⁷

[41] In our view, the messages... were admissible and properly put to the jury, under s 18 of the Evidence Act. Only threshold reliability, a “reasonable assurance”, is required under s 18(1)(a). In that regard we note that both [vendor and purchaser] believed they were communicating using a secure and encrypted platform. Alternatively, the messages were admissible under s 22A (as a co-conspirator’s statement) because:

(a) there is reasonable evidence of the existence of a joint enterprise to import MDMA which Mr De Soto participated in...; and

(b) the messages from [the vendor] are part of the natural process of making arrangements to carry out that joint enterprise.

(Citations omitted and emphasis added)

[19] The combined effect of these authorities makes it clear that s 22A is treated as an exception to the rule against hearsay, and one that stands alone from the general exception contained in s 18. That is why in R v Keil I said:

[7] Statements contained within such communications are admissible against the people who made them. But, normally, what people communicate to each other cannot be used as evidence against somebody who is not a party to the communications. That is because the communications are hearsay statements and are inadmissible unless certain conditions going to reliability and the unavailability of the maker of the statements are satisfied.

[8] There is an exception relevant to this case known as the ‘co- conspirators’ rule...

(Citations omitted and emphasis added)

[20] Section 22A was enacted after the Law Commission recommended that the common law exception preserved by s 12A be formally codified.⁸ The Law Commission said nothing to suggest that evidence that is admissible under the co- conspirators’ rule should also have to pass the hurdle of s 18. Similarly, in an issues paper released this year, the Law Commission considered the interplay between ss 22A and 27(1), but no mention was made of the relationship between ss 22A and 18.⁹ Nor

⁷ De Soto v R [2018] NZCA 366.

8. Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at 3.111 to 3.119.

⁹ Law Commission Second Review of the Evidence Act 2006 (NZLC IP42, 2018) at 14.1 to 14.22.

is the matter broached in the leading evidence texts.¹⁰ That is because, I consider, the Courts’ current approach to s 22A, treating it entirely independent of s 18, is the correct one.

[21] This approach aligns with the natural reading of the statutory provisions. Section 17 provides that a hearsay statement is not admissible except “as provided by this subpart”. Both ss 18 and 22A fall within the subpart to which s 17 refers. Section 18 begins, “A hearsay statement is admissible in any proceeding if...” Section 22A begins, “In a criminal proceeding, a hearsay statement is admissible against a defendant if...” There is no suggestion that one provision is to be subservient to or dependent on the other, or that the two are to be linked in any way. A natural reading of the Act confirms that both provisions simply carve out exceptions to the hearsay rule.

[22] Moreover, I consider that the purpose of s 22A would be undercut if co- conspirator’s hearsay statements also had to satisfy the requirements of s 18. The juristic rationale for the admission of such statements is that in the context of a criminal enterprise, the statements made by one participant are attributable to the others.¹¹ In such circumstances, the requirements of s 18 lose their applicability. The high threshold for admissibility under s 18 protects against the prejudice inherent in hearsay statements arising from the inability of opposing counsel to cross-examine the maker of the statement. However, hearsay statements are admissible under s 22A on the basis they are attributable to the other members of the conspiracy, including the defendant. There is therefore less prejudice arising from the lack of ability to cross-examine the maker of the statement.

[23] Mr Ryan submits further there is insufficient link between the conspiracy disclosed by the statement and the substantive charge against Ms Scanlon of wilfully attempting to obstruct the course of justice. I disagree. The linkage is with the silver Ford Mustang. Further, in context, the conversation can be said to be in furtherance

¹⁰ See Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [EA22A.01] and Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at 128-134.

¹¹ See the comments of the Supreme Court in Qiu v R cited at [9].

of the conspiracy and not just a passing of information by Mr Heke to Mr Smyth. Mr Smyth could be taken to be actively involved with assisting Mr Heke.

[24] Mr Ryan submits there is nothing in the conversation to identify Ms Scanlon as the female being discussed. Again, in my view there is an inference properly available that she is identified because of the link to the silver Ford Mustang.

[25] I ruled the conversation is admissible in the trial of Ms Scanlon on the charge of wilfully attempting to obstruct the course of justice. Of course, the weight to be given to the conversation was for the jury having heard all of the evidence in the trial and having heard Mr Ryan’s criticisms of it.

Section 30, Criminal Disclosure Act 2008

[26] Mr Ryan applied for an order for the disclosure of information held by Police on their National Intelligence Application (NIA) database relating to drug dealing events at the address of 89 St Marys Avenue, Te Awamutu. This is the address at which Ms Scanlon was arrested. It is the address from which the second charge against her (possession of methamphetamine for supply) arose.¹²

[27] Mr Ryan understood the address is well known for drug-dealing activities. His client’s defence was that the methamphetamine found was not hers. Mr Ryan obtained disclosure of the criminal records of the others who were present in the house. Insofar as these show drug-related offending, the Police accepted them and Mr Ryan could lead details through a suitably briefed police officer. Likewise, Ms Dunn conceded the reputation of the house, and that also could be led through a police officer. Ms Dunn objected to the NIA printout being given to Mr Ryan because of the need for much of the information and the way in which it has been accumulated to be kept confidential. Section 16 of the Criminal Disclosure Act 2008 is cited.

[28] Ms Dunn, at my request, provided me with a copy of the NIA printout so I could see whether there is anything of relevance to Mr Ryan’s case. First, the printout has many references to the address. There are references to methamphetamine in

¹² The jury found her not guilty on this charge.

2016, 2017 and 2018. I do not see anything else of direct relevance. I note there are many references to persons who might or might not be associated with the address, but I decided that s 16 applies and there is nothing of apparent relevance in their names. It seemed to me that Mr Ryan could achieve his purpose through the Crown’s concessions which I have set out above.

[29] Accordingly, I dismissed the application under s 30 for disclosure of the NIA data.








Brewer J