PAEWHENUA v R [2018] NZCA 86

PAEWHENUA v R [2018] NZCA 86 [10 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA328/2017[2018] NZCA 86BETWEEN CHEYENNE RAHIRI PAEWHENUAAppellantAND THE QUEENRespondentHearing: 26 and 28 February 2018Court: Brown, Brewer and Collins JJCounsel: J K W Blathwayt for AppellantP D Marshall for RespondentJudgment: 10 April 2018 at 4.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] While executing a search warrant at the appellant's mother's home inMasterton, the police found a backpack containing a locked safe. Inside the safe wasa plastic container holding 14.6 grams of methamphetamine, $3,000 in cash, digitalscales and empty zip-lock bags.[2] The appellant was charged with possession of the methamphetamine forthe purpose of supply. The Crown case rested on circumstantial evidence, includingthe appellant's links to the property, admissions which he made when interviewed bythe police, the discovery of his fingerprints on insulation tape wrapped aroundthe plastic container and the content of recorded telephone calls betweenthe appellant's father, Wayne Rimene, and a male whom it was accepted was theowner of the drugs.[3] Following a trial by jury in the District Court at Wellington, the appellant wasfound guilty of one charge of possession of a Class A controlled drug, namelymethamphetamine, for the purpose of supply. He was convicted by Judge Harropand sentenced to three years and five months' imprisonment.1[4] The notice of appeal against conviction specified four grounds:(a) The verdict was unreasonable and not supported by the evidence.(b) The Judge failed to give an adequate warning to the jury in relation tovoice identification.(c) The recorded telephone calls ought not to have been admitted.(d) In all the circumstances the appellant did not receive a fair trial.[5] The focus of the appeal was on the recorded telephone conversations whichthe Crown claimed were between the appellant and his father in prison. AsMr Blathwayt's submissions noted:The critical issue is whether in terms of the conversation the person speakingto Wayne Rimene on four of those calls was the appellant. If it was thenclearly the dealer's kit belonged to the appellant and he was guilty of thecharge he faced.[6] Mr Blathwayt did not press the second ground of appeal relating to thealleged failure of the trial judge to provide a warning pursuant to s 126 of theEvidence Act 2006. That was entirely understandable. The Crown did not call voiceidentification evidence and the need for such a warning did not arise.21 R v Cheyenne Rahiri Paewhenua [2017] NZDC 11296.2 Evidence Act 2006, s 46 and the definition of "voice identification evidence" in s 4(1).[7] With reference to the third ground the appellant had unsuccessfullychallenged the telephone call evidence prior to trial3 on the grounds that, in theabsence of evidence proving the appellant was the recipient of the calls, the evidencewas hearsay. On appeal the challenge to admissibility was renewed, the contentionbeing that, as the Crown did not obtain expert evidence identifying the voice asbelonging to the appellant, it was not entitled to play those calls at all.[8] We agree with the Crown that this submission is misconceived. It was notnecessary for the Crown to lead such evidence. The probative value of thetelephone-call evidence did not depend on the sound of the person's voice. Ratherthe Crown's contention was that the probative value of the calls flowed from theircontent and their surrounding circumstances.[9] The nub of the appeal as presented concerned the first and fourth grounds. Itturned on the appellant's proposition that it could not fairly be concluded that theother participant on the calls was the appellant for the reason that Wayne Rimene hadnot two but three sons.[10] In summing-up, the Judge said that the reality of the case was that if the jurywere sure that the appellant was called by Mr Rimene in each of the first four calls,then the jury would inevitably find the appellant guilty. The Judge then directed thejury that Mr Rimene only had two sons by Janine Paewhenua, namely the appellantand his brother Chevi. The participant in the telephone call was clearly not Chevibecause he was discussed by the two participants in the calls. Hence the Crown'scontention that the appellant was the other participant on the calls.[11] In the course of cross-examination of a police witness, the followingexchange occurred:3 R v Cheyenne Rahiri Paewhenua [2017] NZDC 4796.Q Do you know how many children Wayne Rimene and JaninePaewhenua have?A I do not.Q I'm going to put it to you that amongst other children who haven'tbeen mentioned there is a son, Tawhiti, Tawiti, aged about 22 or 23?Can you refute that?A I cannot.[12] Mr Blathwayt challenged the accuracy of the statement in the summing-upthat Mr Rimene had only two sons, maintaining that there was a third son namedTawhiti. He argued that it was not proven that Tawhiti was not the other telephoneparticipant. Much of the hearing was focused on this issue, which resulted in anadjournment in order for the transcripts of discussions between the Judge andcounsel in chambers, two documents recording information relating to the childrenof Wayne Rimene and the children of Janine Paewhenua, and transcripts of theJudge's comments to the jury with reference to those two documents to be obtained.[13] At the resumption of the appeal on 28 February 2018, in support of hisargument that Tawhiti could have been the other party on the telephone calls,Mr Blathwayt sought to pray in aid a s 9 admission of facts which contained a list ofthe children of Janine Paewhenua.4 However that document did not advancethe appellant's case because, by contrast with the appellant and Chevi, it did notidentify Tawhiti as a son of Wayne Rimene.[14] Further, on one of the calls Mr Rimene indicated that he could obtain aUnited Kingdom passport via the other participant's grandmother. The otherparticipant stated: but if you went and got yours, then I can get mine, can't I?We agree with the Crown's submission that that exchange strongly suggested a closebiological link between the two men.[15] There was no evidence concerning the whereabouts of Tawhiti at relevanttimes and in particular no evidence of his presence either at the Masterton address4 Evidence Act 2006, s 9.where the backpack was found or at the home of the appellant's grandfather at thetime the telephone calls were received there. In addition the only fingerprints whichwere identified on the container, albeit on insulation tape wrapped around it, werethe appellant's.[16] In our view there was ample evidence pointing to the appellant's guilt.Applying the test in Owen v R, we reject the submission that there was insufficientevidence to permit the jury to be satisfied beyond reasonable doubt that the appellantwas guilty of the charge.5Result[17] The appeal is dismissed.Solicitors:WCM Legal, Carterton for AppellantCrown Law Office, Wellington for Respondent5 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].