DENNIS HAUNUI v R [2019] NZCA 679

DENNIS HAUNUI v R [2019] NZCA 679 [19 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA49/2019[2019] NZCA 679BETWEEN DENNIS HAUNUIAppellantAND THE QUEENRespondentHearing: 26 September 2019Court: Clifford, Ellis and Peters JJCounsel: A J Bailey for AppellantD G Johnstone and S A Rankin for RespondentJudgment: 19 December 2019 at 3 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Haunui, appeals against his conviction on several chargesfollowing a jury trial in January 2019 before Judge Kellar in the District Court atChristchurch.[2] The issues on appeal are whether the Judge erred in holding that text messageswhich Mr Haunui sought to adduce were inadmissible and, if so, whether that errorcreated a real risk the outcome of the trial was affected, so that a miscarriage of justicehas occurred.1Background[3] Mr Haunui was convicted of possession of a class A drug (methamphetamine)for the purpose of supply; possession of an offensive weapon (knuckle dusters); andpossession of a class C drug (cannabis). He was acquitted on a charge of possessionof a utensil for the purpose of the commission of an offence, namely a pipe used tosmoke methamphetamine.[4] On 8 February 2019 the Judge sentenced Mr Haunui to eight months'imprisonment, cumulative on an existing sentence of imprisonment.2 Although theJudge did not identify the sentence imposed on each offence, it is apparent fromMr Haunui's criminal history that the Judge attributed eight months to themethamphetamine offending, and one month (concurrent) to each of the other charges.[5] The principal focus at trial, and on appeal, is the conviction for possession ofmethamphetamine for the purpose of supply. The appeal against the other convictionsstands or falls with that charge. We record also that the issue at trial was the elementof "possession". Mr Haunui did not dispute he had been offering to supplymethamphetamine "for the September period", and so might have been guilty of thatoffence had he been so charged.[6] The charges arose in this way.[7] At approximately 12.30 am on 4 September 2016, Constables Kingi and Sollittstopped the vehicle Mr Haunui was driving and in which Ms Jacquelene Edmonds,Mr Haunui's then partner, was the front seat passenger. The vehicle belonged to afriend of Ms Edmonds. The police IT system showed the vehicle's registration hadexpired. When speaking to Mr Haunui, Constable Kingi observed the knuckle dustersin the vehicle, adjacent to the hand brake. Constable Kingi detained Mr Haunui,1 Criminal Procedure Act 2011, s 232(2)(c).2 R v Haunui [2019] NZDC 2095.indicating he was invoking the police's search and seizure power. The search of thevehicle located:(a) A black leather bag, in the driver's footwell, partially under the driver'sseat. The bag contained a makeup bag holding $1,750 in cash, a bottlecontaining two point bags, holding a combined weight of 0.94 grams ofmethamphetamine, and another point bag holding 1.68 grams ofcannabis.(b) A first aid kit in the front seat passenger footwell which contained pointbags.(c) A set of digital scales, and a sunglasses case containing the pipe, eachof which Constable Kingi thought had been in the first aid kit.(d) A notebook containing notes and telephone numbers.[8] Constable Kingi asked Mr Haunui to whom the various items belonged.Mr Haunui said they were his and that he would "take the rap for everything in thecar". Constable Kingi later asked Mr Haunui what he meant by that, to whichMr Haunui did not respond. Mr Haunui did say, however, that the knuckle dusterswere not his and were in the car when he and Ms Edmonds borrowed it.[9] Mr Haunui was charged with the various offences the following day.Ms Edmonds was not charged.[10] Subsequent analysis revealed Ms Edmonds' fingerprints on the scales, and onand in the notebook. It was accepted that the notebook was not a "tick" book, so littleturns on it. Mr Haunui's fingerprints were not, however, found on any of the items.[11] An agreed statement of facts recorded that Mr Haunui had a conviction foroffering to supply methamphetamine, evidenced by text messages in March and April2016, and Ms Edmonds convictions for possession of methamphetamine for supplyand of utensils for consuming methamphetamine. Ms Edmonds' convictions were inrespect of offending in August 2017, so post-dated the vehicle stop.[12] The police obtained production orders in respect of the cellphones inMr Haunui's and Ms Edmonds' possession on 4 September 2016 (Haunui phone andEdmonds phone respectively). At trial the Crown adduced in evidence both theMarch/April 2016 texts, on which Mr Haunui's previous conviction for supplyingmethamphetamine was based, and the texts recovered from his phone seized on4 September 2016, covering the period 31 August to 4 September 2016.[13] The Crown did not produce any texts from the Edmonds phone. On the faceof it, Ms Edmonds sent the occasional text from the Haunui phone but nothing turnson that.Trial[14] To establish possession, the Crown was required to prove that Mr Haunui knewof the presence of the methamphetamine and that it was a controlled drug, thatMr Haunui had control of the methamphetamine or the ability to exercise control, andthat he intended to exercise control.[15] The Crown case seems principally to have been that Mr Haunui was in solepossession of the methamphetamine (and other items). The Crown did not, however,rule out that Mr Haunui and Ms Edmonds may have been in joint possession. Jointpossession would require that Mr Haunui intend to exercise control in conjunctionwith Ms Edmonds. Mr Haunui would be "in possession" in either case.[16] Mr Haunui in effect admitted offering to supply (the same offence for whichhe was convicted earlier in the year). But Mr Haunui sought to advance a defence thatthere was a reasonable possibility the methamphetamine was in Ms Edmonds' solepossession.[17] Coming to the ruling under appeal, the Crown called Detective Sergeant (DS)Geoffrey Rudduck to give evidence as to methamphetamine dealing generally, and toassist the jury to "decode" the texts. In his evidence in chief, DS Rudduck referred toseveral of the March/April 2016 texts for general purposes associated with drugdealing, for example to explain the use of the phrase "a Nike" as referring to a purchaseon credit: credit — tick — the Nike "swish".[18] DS Ruddock commented more specifically on the significance of a number ofthe 31 August–4 September 2016 texts for the charges Mr Haunui was facing at trial:(a) 31 August 2016 at 21.11.20: to Mr Haunui: "See you about six cuz?Just bring a Q. Chur my bro".DS Ruddock said "a Q" was slang for a quarter of a gram ofmethamphetamine which the sender was asking Mr Haunui to bringwith him.(b) 1 September 2016 commencing 04.22.44: from and to Mr Haunui:Mr Haunui says "Got sum ladys". Mr Haunui is then asked where heis, he tells the person he will be home in an hour and the person says hewill see him then.DS Ruddock said a "lady" is a reference to a quarter of a gram ofmethamphetamine which, by this text, Mr Haunui has indicated he hasfor sale.(c) 2 and 3 September 2016: to and from Mr Haunui:At 09.10.42 on 2 September 2016 Mr Haunui is asked: "Got lady?".On 3 September 2016 at 11.29.57: Mr Haunui is asked by the samephone number: "Do you want to do the same az yesterday bro", and at15.02.24 that day: "Should I come to you bro?"At 17.05.19 Mr Haunui replies: "Up 2s bruv got 2 ladys an one 2 go".DS Ruddock said Mr Haunui is saying in this text, some seven and ahalf hours before the stop and search, that he has two quarter grams ofmethamphetamine, and one is for sale.(d) Late on the evening of 3 September 2016, from 19.49.17 to 23.18.41(approximately an hour before the stop and search), Mr Haunui and a"Bute" exchange voice calls, messages and texts. DS Ruddock did notcomment on the texts in detail. It appears he may have intended to, butthe transcript shows Mr Bailey, counsel for Mr Haunui at trial (and onappeal), objecting to this, following which Ms Boshier moved toanother topic. These texts appear to reflect "Bute" telling Mr Haunuiat 19.56.13 where he was, after which the exchange includes thefollowing communications:21.48.00 To Mr Haunui Hey brava it Bute let me know ifalgud again to come c u likebefore if can21.50.27 To Mr Haunui Swt as bruv jst c da uncle swt21.51.20 To Mr Haunui How long you think brava21.56.13 To Mr Haunui Probably want same as beforebrav23.08.18 To Mr Haunui Where u at brava23.10.16 To Mr Haunui U far brav23.18.41 To Mr Haunui Sori g already sorted brother butI'll be in touch my brava[19] In her closing address Ms Boshier submitted, with reference to those texts: You might think Bute is pretty keen for Mr Haunui to come over and whymight that be? Well he referred to the order he had in with Mr Haunui at9.56 pm. "Probably want same as before bruv." How do we know that is anorder? Because he cancels it later on in the night at 11.18 pm after Mr Haunuihas taken too long to deliver. "Sorry G, already sorted bro' but I'll be in touchmy brother." What's Mr Haunui selling that night? 5.05 pm, "Ladies."[20] Mr Bailey sought to cross-examine DS Rudduck on particular texts derivingfrom the Edmonds phone. These texts (Edmonds texts), sent on 1 and 3 September2016, were from third parties to Ms Edmonds, and from Ms Edmonds in response.[21] There is no dispute that, on their face, some of the Edmonds texts (which arelisted below) evidence third parties seeking supply of methamphetamine, andMs Edmonds responding in a way consistent with a willingness to do so. By way ofexample, the sender of the first text listed asks " what's cheapest you can do a wholefor?" to which Ms Edmonds responds " i think 85 a litre paint ". Crown counselon appeal, Mr Johnstone, acknowledged these texts concerned the supply ofmethamphetamine.[22] Ms Boshier objected to Mr Bailey's cross-examination of DS Rudduck on thebasis that the Edmonds texts were "hearsay statements" as defined in s 4 of theEvidence Act 2006 (Act), and inadmissible accordingly. In accepting Ms Boshier'ssubmission, the Judge appears to have been satisfied the texts were hearsay statements,and inadmissible as Ms Edmonds was not to be called as a witness.[23] On appeal, Mr Bailey submits the Judge's ruling was in error, as the Edmondstexts were not hearsay statements: alternatively they were admissible under s 18 of theAct.Edmonds texts[24] The Edmonds texts are as follows:3Date Time From To Text Message01.09.16 21.10.48 DB JE II just come grab coin haha cause I needaa puff lol hahah but what's cheapest youcan do a whole for?01.09.16 21.14.28 JE DB yep algud an sorry i didnt mean muck uround that never happens im gutterd; ithink 85 a litre paint; txt wen u 2 minsaway k03.09.16 00.34.19 JE MM its jakz;r u algud or u need03.09.16 07.07.12 JE S hi sarah its jacque hey can u get anygreen?03.09.16 07.11.32 JE ST cuz u got gold or bud?03.09.16 08.57.24 JE UKP fuk all; i was jus txtn to c if u had anygunj; ive got 2 ladis if u knw any1 25;03.09.16 09.27.15 DB JE Can you tick a. Till tomorrow?03.09.16 13.42.21 JE DB sorry we been busi; did u still want?03.09.16 19.04.23 DB JE Can you do like a dot n half or somethingtill tomorrow night?3 "JE" is a reference to Ms Edmonds and "UKP" to an unknown person.Date Time From To Text Message03.09.16 19.16.00 JE DB hw u gna pay it tmra its sun?03.09.16 19.17.06 DB JE Il sort money03.09.16 19.22.48 JE DB i cant nike cse wont b able 2 reload anprobli gna need 2 2nyte; sort ur paper2nyte man!!03.09.16 19.22.52 DB JE I'm getting some coin tomorrow if yacan do it can ya drop to me at mine justoff Bower03.09.16 19.33.21 DB JE Aw I can tonight only got fidHearsay statements[25] Section 17 of the Act provides that a hearsay statement is inadmissible subjectto any contrary provision. Accordingly, the first issue to be considered on appeal iswhich, if any, of the Edmonds texts was a "statement" and, if so, whether that text wasa "hearsay statement". If so, it would be admissible only in the circumstances of s 18of the Act, to which we refer shortly. A text which was not a hearsay statement wouldbe admissible if relevant and not unfairly prejudicial.4[26] "Statement" and "hearsay statement" are defined in s 4 of the Act:statement means—(a) a spoken or written assertion by a person of any matter; or(b) non-verbal conduct of a person that is intended by that person as anassertion of any matterhearsay statement means a statement that—(a) was made by a person other than a witness; and(b) is offered in evidence at the proceeding to prove the truth of itscontents4 Evidence Act 2006, ss 7 and 8.Submissions[27] Mr Bailey submitted the texts to Ms Edmonds did not contain assertions andso were not statements.5 Mr Bailey also submitted the texts from Ms Edmonds werenot statements for the same reason.[28] Alternatively, Mr Bailey submitted any text that constituted a statement wasnot a hearsay statement, in that it was not to be relied on to prove the truth of itscontents but as circumstantial evidence from which the jury could infer Ms Edmondshad offered to supply methamphetamine close to the time at which the police stoppedthe vehicle.[29] Mr Johnstone accepted a text-by-text analysis would be required to determinewhether each constituted a statement within the definition in the Act and, if so, thepurpose for which it was adduced. Mr Johnstone did not seek to undertake thatanalysis but submitted that, even if the Edmonds texts were not hearsay statementsand so were admissible, there was no real risk the outcome of the trial was affected asa result of the Judge's ruling.Discussion[30] The texts to Ms Edmonds were not statements, as they did not containassertions. Nor were they hearsay, as they were not to be offered to prove the truth oftheir contents.[31] Likewise the texts from Ms Edmonds, with the exception of her text at 8.57 amon 3 September 2016 (8.57 am text), saying:fuk all; i was jus txtn to c if u had any gunj; ive got 2 ladis if u knw any1 25;[32] The content of this text is similar to one sent from the Haunui phone later thatday. As noted, in discussing that text, DS Ruddock gave evidence that a "lady" or"ladies" is code for quarter of a gram of methamphetamine. If so, the 8.57 am textdoes contain an assertion, to the effect "I am in possession of methamphetamine and I5 R v Holtham [2008] 2 NZLR 758 (HC) at [44]; and Preston v R [2016] NZCA 568.am able to supply". The text would also be hearsay, as it would be offered to provethe truth of its contents. Accordingly, it would be admissible only if s 18 of the Actwere satisfied.[33] We add that the Judge identified this text in particular as a hearsay statement.We agree. Subject to this, however, the Edmonds texts were admissible as they werenot hearsay statements, and were relevant and not unfairly prejudicial.Unavailable as a witness[34] As a hearsay statement, the 8.57 am text would only be admissible in thecircumstances of s 18, which provides:18 General admissibility of hearsay(1) A hearsay statement is admissible in any proceeding if—(a) the circumstances relating to the statement provide reasonableassurance that the statement is reliable; and(b) either—(i) the maker of the statement is unavailable as a witness;or(ii) the Judge considers that undue expense or delaywould be caused if the maker of the statement wererequired to be a witness.(2) This section is subject to sections 20 and 22.[35] Section 16(2) provides:16 Interpretation(2) For the purposes of this subpart, a person is unavailable as a witnessin a proceeding if the person—(a) is dead; or(b) is outside New Zealand and it is not reasonably practicablefor him or her to be a witness; or(c) is unfit to be a witness because of age or physical or mentalcondition; or(d) cannot with reasonable diligence be identified or found; or(e) is not compellable to give evidence.[36] Mr Bailey submitted to us that Ms Edmonds was unavailable as a witness forthe purposes of s 18(1)(b)(i) because, prior to trial, her solicitor had advised she wouldrefuse to answer any questions put to her on the ground that such might incriminateher. Mr Bailey submitted this was sufficient to bring Ms Edmonds within s 16(2)(e),because she could not be compelled to give evidence.[37] Sections 71 to 76 of the Act address the eligibility and compellability ofwitnesses. None of these provisions render Ms Edmonds ineligible or uncompellable.Mr Bailey submitted, however, these provisions are not exclusive, and a witness maybe unavailable for the purposes of s 18 if he or she cannot be compelled to give theevidence sought, as would be the case if Ms Edmonds declined to answer questionswhen giving evidence.[38] In support of his submission, Mr Bailey referred us to the following passage inthis Court's judgment in King v PFL Finance Ltd:6[49] Mr Chesterman submitted Mr Ellis was not "unavailable as a witness"for the purposes of s 18(1)(b)(i). We do not accept that submission. By reasonof s 16(2)(e) of the Evidence Act, a person is "unavailable as a witness" if theperson "is not compellable to give evidence". We do not considercompellability for the purposes of s 16(2)(e) to be wholly defined by ss 71 to75 of the Act. Rather, we agree with the commentary in The Evidence Act2006: Act and Analysis that s 16(2)(e) "may also result in the Court's treatingwitnesses who are excused from testifying as 'unavailable'".[39] Mr Bailey submitted the present case was on "all fours" with King asMs Edmonds was entitled to assert privilege against self-incrimination and her lawyerhad said she would do so.[40] The situation in King was different from this case. In King, the defence hadsummonsed a solicitor who had previously acted for the plaintiff, seeking to have thesolicitor give evidence of his communications with the plaintiff. When counsel forthe defendant sought to call the solicitor at trial, the plaintiff asserted his privilege in66 King v PFL Finance Ltd [2015] NZCA 517 (footnote omitted).his communications with the solicitor, pursuant to s 54 of the Act. The Judge (Peters Jas it turns out) upheld the plaintiff's objection and declined to allow the solicitor togive evidence. As appears from the passage quoted, this Court was satisfied that inthose circumstances the solicitor was "unavailable".[41] The important distinction between this case and King is that the defendant hadsummonsed the solicitor. The decision as to the solicitor's availability or otherwisefollowed from events occurring at the trial itself. The client asserted privilege.The Judge upheld it.[42] In this case, there can be no certainty as to how matters would have developedhad Ms Edmonds been summonsed to appear at trial. Mr Bailey submitted it shouldnot be necessary for a party to take this step in a case where the outcome is a foregoneconclusion, that is Ms Edmonds would refuse to answer questions.[43] We do not accept this submission. We do not consider Ms Edmonds could betreated as unavailable as a witness only on the basis of her lawyer's advice prior totrial. In our view, at the very least it would be necessary to have summonsedMs Edmonds, with her availability or otherwise to be determined by reference toevents thereafter, as in King.[44] As we do not consider Ms Edmonds was unavailable as a witness, the 8.57 amtext was inadmissible. References to the Edmonds texts from hereon exclude the8.57 am text.Real risk[45] We must allow the appeal if satisfied the Judge's error in excludingthe Edmonds texts has created a real risk the outcome of the trial was affected, andwhether there is a reasonable possibility another verdict would have been reached butfor their exclusion.77 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [29]; and Misa v R [2019] NZSC 134 at [48].[46] Mr Bailey submitted there was such a risk. Mr Bailey submitted thatMr Haunui's conviction bordered on inevitable in the absence of the Edmonds textsbut there was a reasonable possibility of an acquittal had the Edmonds texts beenbefore the jury, as they would have added considerable weight to other evidencepointing to Ms Edmonds being in possession, and on which Mr Bailey could make asubmission to the jury there was reasonable doubt as to whether Mr Haunui was inpossession, even joint possession. This other evidence comprised Ms Edmonds'fingerprints alone being on the scales, the location of the scales and point bags in herfootwell, the fact the cash was in a make-up bag and, on Mr Bailey's submission, thelarger bag containing the drugs and cash was of a kind more likely to be used by awoman than a man. Ms Edmonds' conviction for possession for supply was also themost relevant of those in the agreed statement of facts. Mr Bailey submitted that hadthe jury had all, rather than just some, of this evidence, it might have considered itreasonably possible Ms Edmonds alone was in possession of the methamphetamine.[47] Mr Bailey also submitted that the Crown would not have objected, let alone sostrongly, to the Edmonds texts if it thought their admission would have no effect onthe outcome of the trial. In our view, nothing turns on the fact the Crown objected tothe admission of the evidence at trial. Crown counsel is entitled to object to evidencehe or she considers inadmissible, regardless of how admission of the evidence mightbe expected to affect the verdict.[48] So we turn to the question as to whether there is a reasonable possibilityanother verdict would have been reached, that is a verdict that Mr Haunui was notguilty of the possession of the methamphetamine found during the stop and search forthe purposes of supply, if the evidence comprising the content of the Edmonds texts,and the inferences that could fairly be drawn from them, had been before the jury.[49] In our view, albeit without the benefit of expert evidence as to the meaning ofthe Edmonds texts, but with the benefit of considerable exposure at trial to such texts,we think the Edmonds texts provide evidence of similar dealing in methamphetamineas do the texts and messages to and from Mr Haunui in the days and hours prior to thestop and search. We have given one example in [21] above. Another is Ms Edmonds'reference to "nike" in response to an obvious request for supply of methamphetamineon credit (see the text on 3 September 2016 at 19.24.28).[50] In addition to showing a similar pattern of involvement in drug dealing, actualor attempted, we note two following aspects of the evidence.[51] The first is the reference at 13.42.21 on 3 September to "we been busi". In ourview a reasonable and obvious inference is that "we" is Ms Edmonds and Mr Haunui.[52] Secondly, there is no evidence suggesting Ms Edmonds was offering to supplymethamphetamine at a point when Mr Haunui was not, or had said he could not. Suchevidence would have provided some support for the proposition the methamphetaminefound in the car was Ms Edmonds' alone. Its absence tends to suggest the contrary.[53] Nor do we think the admission of the Edmonds texts would have materiallyaltered the case, in terms of its strengths or weaknesses, against Mr Haunui made bythe Crown on the basis of the rest of the evidence. In particular, we note the defenceplaced considerable reliance on the absence of any fingerprint or other forensicevidence linking Mr Haunui to the methamphetamine and other objects found in thecar. Indeed, at the trial, by far the largest part of the evidence was expert fingerprintevidence given by both Crown and defence witnesses. The availability of theEdmonds texts would not have altered the task the jury faced in determining thesignificance of that evidence, in particular as it was relied on by the defence as tendingto exculpate Mr Haunui.[54] The Crown acknowledged from the outset that joint possession was a realisticpossibility, notwithstanding that Ms Edmonds had not been charged. Accordingly,even if the Edmonds texts had been in evidence we do not think there is a reasonablepossibility a different verdict against Mr Haunui would have been reached,notwithstanding that we accept the jury would most likely have done so on the basisof an implicit finding of joint possession.Result[55] The appeal against conviction is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent