F v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWild,Chisholm,Potter JJ
Judgment Date14 December 2011
Neutral Citation[2011] NZCA 645
Docket NumberCA630/2011
Date14 December 2011

[2011] NZCA 645



Wild, Chisholm and Potter JJ


The Queen

B L Sellars for Appellant

M D Downs for Respondent

Appeal from District Court ruling that inadmissible evidence from previous proceeding was admissible in present proceeding as propensity evidence — possession of Class A drug for supply and Class C drug for sale — evidence found in car that appellant (“A”) was driving in 2010 — A denied any knowledge of the drugs — charges also laid in 2009 in similar circumstances which were dropped when evidence ruled inadmissible (search that found the drugs improperly executed by police) — consideration of “once out always out” proposition after Fenemor v R — whether 2009 evidence admissible as propensity evidence.

At issue was whether the evidence that had earlier been ruled inadmissible was admissible as propensity evidence.

Held: The principles in Fenemor applied and defeated the “once out always out” submission. Assessment of evidence was proceeding specific. Applying Fenemor to this case:

  • 1.similar relevant prior acquittal evidence was admissible if it was propensity evidence, if s40(1) EA (propensity rule) and s43(4) EA (propensity evidence offered by prosecution about defendants) were satisfied;

  • 2.potential unfairness and prejudice were not applicable in this case;

  • 3.the probative value of evidence might be different in different proceedings;

  • 4.no question of double jeopardy arose; and

  • 5.prior acquittal did not logically diminish the probative value of the prior acquittal evidence.

The main issue to be decided at trial, as identified by the DC, was whether F had possession of the items found in a legal sense (mens rea). The evidence of what was found in F's possession in 2009 fell within the definition of propensity evidence in s40(1) EA as it concerned drugs/paraphernalia found in a vehicle being driven by F of which F claimed to have no knowledge. Assessed against the factors to take into account in s43 EA:

  • •the frequency was once;

  • •the connection in time was less than a year;

  • •the extent of similarity of the circumstances and explanations offered by F were significant.

It was therefore open to the DC to find that the probative value of the propensity evidence was relatively high and any dissimilarity could be presented to the jury. The details relating to the pistol might need to be excluded as being unfairly prejudicial unless the Crown could call evidence establishing that the police experience was that those involved in drugs frequently had firearms to protect themselves and their money, thus linking the pistol with the drug items. The propensity evidence did leave intact F's defence that he had no knowledge of the drugs found, although it weakened it.

In terms of the balancing exercise in s30 EA:

  • •although the right breached was an important one, an unlawful search of a motor vehicle was not as intrusive as a search of a person's body or home;

  • •no bad faith on the part of the police was alleged during the 2009 search.

  • •the propensity evidence would assist the jury to determine whether F had the requisite knowledge of the drugs;

  • •the charges faced by F were very serious; and earlier exclusion of propensity evidence was irrelevant (Fenemor).

On this basis the propensity evidence was admissible despite having been improperly obtained.

Appeal dismissed.

  • A Time for applying for leave to appeal is extended.

  • B The application for leave to appeal is granted.

  • C The appeal is dismissed.


(Given by Wild J)


The issue on this appeal is whether evidence, ruled inadmissible against Mr F in a previous criminal proceeding, is admissible against him in this criminal proceeding as propensity evidence.


The appeal is against a decision of Judge Andree-Wiltens, who ruled the propensity evidence admissible in a pre-trial ruling given in the Manukau District Court on 1 August 2011. 1


Mr F faces two charges of possession of the Class A controlled drug methamphetamine for supply, and one charge of possessing the Class C controlled drug cannabis for sale. His trial is scheduled, on a stand-by basis, for 31 January 2012.


The application for leave to appeal Judge Andree-Wiltens' ruling was filed on 19 September, well out of time. Unable to point to any resulting prejudice, the Crown does not oppose an extension of time for the application, which we grant. However, the Crown does oppose the grant of leave to appeal on the ground that the proposed appeal is without merit.


Ms Sellars' primary submission for Mr F was that the propensity evidence, having been ruled inadmissible in the previous criminal proceeding, should again be ruled out in this proceeding. Since the application for leave to appeal was filed, the Supreme Court's judgment in Fenemor v R2 has been delivered. In Fenemor the Court held that evidence that resulted in an acquittal in a previous criminal proceeding 3 is admissible as propensity evidence in a subsequent trial, its admissibility being determined under ss 7 and 43 of the Evidence Act 2006. Fenemor holds that the Evidence Act leaves no room for an absolute exclusionary rule. 4 Although the situation in Fenemor was different, the principle it establishes

has obvious relevance to Ms Sellars' primary submission, which we will deal with first.

We agree with Mr Downs that the logical approach is to consider next whether the evidence is admissible in terms of ss 40 and 43 of the Act. If it is, then to consider, in terms of s 30, whether exclusion of the propensity evidence in this proceeding is proportionate to the impropriety involved in the unlawful search by which it was obtained. That is the approach Judge Andree-Wiltens followed. Before dealing with those three questions, we outline the facts of this case, and the propensity evidence and its earlier exclusion.

The facts of this case

A car being driven by Mr F (he did not own it) was stopped by the police on 15 February 2010. The stopping was pursuant to s 317A of the Crimes Act 1961, so that the police could arrest Mr F's passenger, Ms Fonotia. A warrant for Ms Fonotia's arrest had been issued upon an interim order recalling Ms Fonotia to complete a prison sentence. Ms Sellars told us Ms Fonotia was one of several people the police had been investigating for some time, in connection with a suspected methamphetamine supply ring.


Having stopped the car the police searched it after invoking the search powers under s 18( 2) and (3) of the Misuse of Drugs Act 1975. On the rear seat the police found $705 cash in a purse, and four empty “point bags” in a shoulder bag. Concealed in the false bottom of an LPG gas bottle in the right rear passenger footwell, the police found:

  • (a) 38 grams of methamphetamine in plastic snaplock bags;

  • (b) 28.6 grams of cannabis plant material in a plastic bag;

  • (c) two cannabis cigarettes;

  • (d) small amounts of cannabis plant material in plastic bags; and

  • (e) $30,325 in bundles of cash.


Mr F told the police that he did not know that any of these items were in the car. Ms Fonotia accepted ownership of the items found concealed in the gas bottle. Together with Mr F, she was charged with possession of the illicit drugs found. She has since pleaded guilty.

The propensity evidence and its earlier exclusion

At 2 am on 10 March 2009 Mr F was stopped while driving on Mayoral Drive in Auckland. He was pulled over, at least ostensibly, for a licence, registration and warrant of fitness check. After stopping Mr F the police noticed that his passenger was attempting to hide an open bottle of beer, and they noticed an open carton of beer on the back seat of the car. Mayoral Drive is a “liquor ban” area. The police told Mr F that they were going to search his car pursuant to s 169 of the Local Government Act 2002, which applies in liquor ban areas.


After finding some suspicious items in the boot of the car, the police invoked the power of search under the Misuse of Drugs Act. They found these items in the car:

  • (a) Snaplock bags at Mr F's feet containing 0.3 grams of methamphetamine.

  • (b) A. 325 calibre pistol, loaded with six rounds of ammunition, in a shoulder bag on the rear passenger seat.

  • (c) A glass methamphetamine pipe also on the rear passenger seat.

  • (d) Two pyrex dishes, electronic scales, an electric fan (all with traces of methamphetamine on them), an electric hairdryer and three plastic flagons containing a total of 15 litres of acetone, all in the boot. Uponanalysis the acetone was found to contain methamphetamine, toluene, pseudoephedrine and chlorofeniramine.


Mr F did not own the car. He told the police he was test driving it with a view to buying it. He claimed that the pistol was in the car when he picked it up, so he had put it in his bag. He explained that the chemicals were for a barbecue.


Mr F faced six charges, all laid indictably, as a result of the search under the Misuse of Drugs Act. Four of those charges were drugs related: possession of a precursor substance to be used in the manufacture of methamphetamine; possession of equipment capable of being used for manufacturing methamphetamine; possession of a methamphetamine pipe; and possession of methamphetamine. The other two charges related to the loaded pistol.


In a pre-trial ruling on 23 December 2009, Judge Cunningham ruled out evidence of the items the police had found in the car. 5 The basis for that ruling was that the police had failed to comply with the provisions of s 170(1) of the Local Government Act, which obliged the police to give Mr F the opportunity either to remove the liquor from the car, or to move the car...

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