Waterworth v R Coa

• Jurisdiction: New Zealand
• Judge: Randerson J)
• Judgment Date: 02 March 2012
• Neutral Citation: [2012] NZCA 58
• Docket Number: CA408/2011
• Court: Court of Appeal
• Date: 02 March 2012

BETWEEN

John Francis Waterworth

Appellant

and

The Queen

Respondent

[2012] NZCA 58

Court:

Randerson, Potter and Simon France JJ

CA408/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

P H B Hall and K H Cook for Appellant

K Raftery and S C M Waalkens for Respondent

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Randerson J)

Introduction

1 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.

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

3 He now appeals against both conviction and sentence.

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

The conviction appeal

5 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

6 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.

7 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

8 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

9 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.

10 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.

11 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

12 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 would engage in impermissible propensity reasoning.

13 Finally, Mr Hall submitted that the Judge had failed to consider several of the matters identified in s 43(3) of the Evidence Act, namely frequency; connection in time; the extent of similarities; and the extent to which the conduct in question was unusual.

14 The principles relating to the admission of propensity evidence are well-settled and are not in dispute. 4 We accept the submission made by Mr Raftery on behalf of the Crown that the propensity evidence was highly probative of the key trial issue. We were referred to two recent decisions of this Court in which decisions admitting propensity evidence of a similar nature were upheld. In Crown v R, 5 the appellant was charged with dealing in class A, B and C drugs. The defence was that the drugs were for personal use. This Court upheld the admission of evidence of the appellant's prior convictions for dealing in class A and C drugs two years before. And in Brown v R, 6 this Court declined to grant leave to appeal against a refusal to sever charges the appellant was facing for drug importation in 2001 from charges for drug dealing in 2006 and 2007. The evidence of the 2001 offending was treated as

propensity evidence which demonstrated a tendency on the appellant's part to engage in the importation of controlled drugs

15 The most obvious factor here is that the appellant had been convicted of supplying ecstasy sourced from Auckland on a number of occasions as recently as 2005. Then, within a short period after his release on parole for that offending, he was again involved in the admitted supply of drugs. The Judge's conclusion that the propensity evidence was highly probative of the identity of the drugs at issue was supported by the fact that the appellant was again sourcing drugs from Auckland, his familiarity with the market and sale prices for ecstasy and his admitted connection with Mr Whittle (who had pleaded guilty as a party to the conspiracy to supply ecstasy). Put simply, it was evidence tending to show that the appellant had a propensity to engage in the sale of ecstasy sourced from suppliers in Auckland.

16 We agree with the Judge that the probative value of the evidence clearly outweighed any unfairly prejudicial effect. The evidence was unlikely to predispose the jury against the appellant. We note in particular that the jury was told at the outset that the appellant admitted selling class C drugs. The careful directions and warning the Judge gave 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.

17 We conclude that the propensity evidence was properly admitted.

Second ground: the admission of evidence under s 12A of the Evidence Act

18 The Crown sought to lead evidence of intercepted conversations involving drug dealings between Mr Whittle and various witnesses. The intercepted conversations showed that Mr Whittle was discussing with a number of persons the sale of a variety of drugs including ecstasy. Mr Hall also accepted that the intercepted conversations showed that Mr Wilkes was a party to a conspiracy with Mr Whittle to supply ecstasy. It is common ground that the appellant was not a party to any of these conversations. The Crown relied on s 12A of the Evidence Act which preserves the common law exception to the rule against hearsay for statements made by co-conspirators.

19 We observe at the outset that it may have been unnecessary for the Crown to rely on s 12A since two of the appellant's co-accused (Messrs Whittle and Wilkes) admitted conspiring to sell ecstasy and the appellant admitted knowing Mr Whittle and discussing drugs and related matters with him. Nevertheless, we consider whether the evidence of the intercepted conversations between Mr Whittle and others was properly admitted under s 12A.

20 The admission of evidence under s 12A arises where the Crown seeks to adduce evidence of conversations between co-conspirators against another accused who is alleged...