Waterworth v R Coa

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson J)
Judgment Date02 March 2012
Neutral Citation[2012] NZCA 58
Date02 March 2012
Docket NumberCA408/2011

[2012] NZCA 58



Randerson, Potter and Simon France JJ


John Francis Waterworth
The Queen

P H B Hall and K H Cook for Appellant

K Raftery and S C M Waalkens for Respondent

Appeal against conviction and sentence — appellant convicted of conspiracy to supply ecstasy (Class B) and was sentencedto three years six months imprisonment — offending committed while on parole — whether previous convictions for supplying ecstasy should have been admitted under s43 Evidence Act 2006 (propensity evidence) — whether hearsay evidence of co — conspirator should have been admitted under s12A (statements of co-conspirators) — whether Judge ought to have directed jury thatCrown's failure to call co-accused meant they were entitled to infer he would not have assisted the Crown's case — whether sentence excessive given appellant had been recalled to prison for previous offending.

The issues on appeal were: whether W's previous convictions should have been admitted under s43 EA; whether hearsay evidence of Whittle's intercepted conversations should have been admitted under s12A EA; whether the DC Judge ought to have directed jury that the Crown's failure to call Whittle meant they were entitled to infer he would not have assisted the Crown's case; and, whether the application of the nine month uplift for offending while on parole meant that the sentence was excessive.

Held: The propensity evidence was highly probative of the identity of the drug at issue and tended to show that W had a propensity to engage in the sale of ecstasy sourced from suppliers in Auckland. The probative value clearly outweighed any unfairly prejudicial effect. The jury had been told at the outset that W had admitted selling class C drugs and the directions and warnings given to the jury were sufficient to avoid the risk the jury might engage in impermissible propensity reasoning or give disproportionate weight to the prior convictions. This evidence was properly admitted.

Statements of co-conspirators were not hearsay to the extent they were received as evidence of the state of mind of the person speaking and their purpose and intention at that time. Before declarations of one alleged conspirator could be admitted as evidence against another accused, three threshold issues had to be determined by the judge ( R v Messenger).

  • • it had to be established that there was a conspiracy of the type alleged;

  • • the accused was a member of that conspiracy; and

  • • that the statements were made in furtherance of the conspiracy.

It was sufficient for the Crown to show there was reasonable evidence that there was a conspiracy. Reasonable evidence was evidence which of itself would not sustain a guilty verdict but which was considered safe to admit.

The intercepted communications showed Whittle was dealing in various drugs, including ecstasy, he had pleaded guilty and there was direct evidence from a number of witnesses who had purchased ecstasy from Whittle.

W had argued that in order to establish that he was a member of the conspiracy, there had to reasonable evidence of an agreement between W and one or more of the alleged co-conspirators and that the agreement had to proved from evidence that was independent of the hearsay evidence in the intercepted conversations.

There was reasonable evidence to infer that W was a party to the conspiracy, including the propensity evidence of his convictions for dealing in ecstasy and he had acknowledged he knew Whittle and discussed drugs with him. Given the independent evidence demonstrating W's participation in a conspiracy it was not strictly necessary to determine, as a threshold issue, whether it was necessary for the Crown to show reasonable evidence of W's agreement to supply ecstasy.

However, while not expressing a final view on this, at the threshold level it was sufficient if the Crown showed reasonable evidence of a conspiracy to supply controlled drugs even if it was not possible to show W's agreement to participate ina conspiracy to supply the particular drug charged. The Crown was not obliged to prove every detail of the conspiracy when considering the threshold issue of admissibility. It was enough to show an agreement (express or implied) of the kind alleged and what in general terms, the conspirators intended to achieve.

here was no authority for the proposition that the prosecution was bound to call a co-accused who had pleaded guilty prior to the trial of another accused. W had not requested the Crown to call Whittle and there was no evidence Whittle would have agreed to give evidence as asked.

W was equally culpable with Whittle. The fact that an offender had been recalled to prison for previous offending did not mean that no account should be taken in subsequent offending of the fact that the further offending had been committed while on parole. A nine month uplift was proper. The end sentence was within the range and not manifestly excessive.

Appeal dismissed.


(Given by Randerson J)

Randerson J)

The appellant was convicted after jury trial in the District Court before Judge Doherty of one count of conspiracy to supply the class B controlled drug MDMA (ecstasy) between 1 August 2008 and 25 June 2009. 1 He was charged along with four others: Messrs Whittle, Wilkes, David and Dillon. Both Mr Whittle and Mr Wilkes had pleaded guilty prior to trial. Mr David and Mr Dillon were acquitted.


The appellant was subsequently sentenced to three years six months imprisonment. 2


He now appeals against both conviction and sentence.


Leave to appeal out of time is not opposed by the Crown. Leave is granted accordingly.

The conviction appeal

The appeal against conviction raises three grounds:

  • (a) Wrongful admission of propensity evidence of the appellant's prior convictions for drug dealing;

  • (b) Wrongful admission of hearsay evidence under s 12A of the Evidence Act 2006; and

  • (c) The Judge ought to have directed the jury that the Crown's failure to call Mr Whittle meant they were entitled to infer he would not have assisted the Crown's case against the appellant.

First ground: propensity evidence

The appellant admitted conspiring to sell the class C drug BZP, but denied conspiringto sell ecstasy. The jury was told this at the outset of the trial. The jury was also told that Messrs Whittle and Wilkes admitted conspiring to sell ecstasy. The sole issue for the jury to determine was whether the drugs the appellant was conspiring to sell were ecstasy or whether he was conspiring to sell only BZP.


The Crown sought to lead evidence of the appellant's previous convictions for supplying ecstasy in 2005. It proposed to call formal evidence of the convictions along with a statement of admitted facts. The admitted facts showed that the appellant sold ecstasy on a number of occasions in June and July 2005 to a range of purchasers. The evidence also showed, amongst other things, that the appellant was

familiar with the price of the ecstasy tablets; negotiated deals with the purchasers; used a “tester kit” to test the content and quality of the ecstasy; used a variety of code names for the tablets; and that he was sourcing the ecstasy from Auckland.

The appellant was convicted for the 2005 offending on 2 November 2006. He was sentenced to four and a half years imprisonment and was released on parole in 2008. The offending which is the subject of this appeal occurred while the appellant was on parole. He was recalled to prison in June 2009 and served a further nine months.

The Judge's ruling on propensity evidence

Judge Doherty ruled on 18 January 2011 that the propensity evidence was admissible. 3 He correctly identified the trial issue to be whether the appellant was involved in selling ecstasy as distinct from class C drugs. He considered the evidence to be relevant for four principal reasons: the drugs were sourced from Auckland where the appellant had had previous dealings in commercial quantities of ecstasy; he knew where to access the quantities required; he utilised test equipment and accepted “promo” quantities for testing purposes; and he was versed in the terminology of the drug trade.


The Judge did not think it material that the code words alleged to have been used might be generic to various classes of drugs, nor that the tester kits could be used to test for both class B and C drugs. Those matters were not seen to be determinative. Rather, the Judge considered them to be possibilities the jury might acceptwhen considering the evidence as a whole.


The Judge concluded that the probative value of the propensity evidence was high and was not outweighed by any unfairly prejudicial effect upon the appellant. In that respect, since the appellant was to admit dealing in class C drugs, the evidence of the prior convictions was unlikely to predispose the jury against him nor cause the jury to give disproportionate weight to the previous convictions. As well,

the Judge proposed to give the usual directions and warning to the jury with regard to propensity evidence and did so in his summing up at trial.
Propensity evidence — discussion

Mr Hall for the appellant submitted that the probative value of the propensity evidence was diminished because it was accepted that the appellant may have been sourcing drugs, particularly in Auckland; that he was using code words and tester kits in relation to drugs; and that he knew Mr Whittle and discussed drugs and related matters with him. He further submitted that propensity evidence did not materially assist the jury in determining the trial issue (the identity of the drugs being sold). There was, in the circumstances, an unacceptable risk that the jury...

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