HENDERSON v R [2016] NZCA 428

HENDERSON v R [2016] NZCA 428 [10 August 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA364/2016[2016] NZCA 428BETWEEN JOHN PERRY MORGAN HENDERSONAppellantAND THE QUEENRespondentHearing: 10 August 2016Court: Winkelmann, Williams and Collins JJCounsel: J M Miller and H G de Groot for AppellantM A Corlett QC for RespondentJudgment: 10 August 2016 at 4 pmReasons: 9 September 2016JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] Mr Henderson sought leave to appeal a pre-trial ruling made by Judge Barry in the Wellington District Court on 18 July 2016. In his ruling Judge Barry granted the Crown's application to join two sets of charges against Mr Henderson.1 As the1 R v Henderson [2016] NZDC 13761.trial commenced on 15 August 2016, we gave a results judgment on 10 August 2016in which we granted Mr Henderson's application for leave to appeal but dismissedhis appeal.2[2] This judgment explains the reasons for our decision. In summary, we agreewith Judge Barry's conclusion that the two sets of charges should be heard togetherbecause evidence relating to the second set of charges is relevant propensity evidence in relation to the first set of charges.3BackgroundFirst set of charges[3] The first set of charges arises from incidents in May and October 2015. At about 6.00 am on 29 May 2015, the police executed a search warrant at 27 Astrolabe Street in Porirua. The Crown says Mr Henderson was using the living room of that house as his bedroom. The police witnesses say that as they approachedthe property a person who fitted Mr Henderson's general description was seen to besmoking cannabis in the backyard. The person then ran towards the back of the property and leapt over the rear fence. The absconder left his shoe in a compost heap in the neighbouring property. The absconder also dropped three bags, each containing approximately 28 grams of methamphetamine, and six bundles of cash. The police seized from the living room of 27 Astrolabe Street methamphetamine, digital scales, glass pipes, cannabis plant material, a quantity of diazepam, a grinder,empty "point bags", three cellphones and $312,000 in cash. In total 136 grams of methamphetamine was recovered during the execution of the search warrant. Mr Henderson faces three charges of possessing Class A, B and C controlled drugs for the purpose of supply in relation to the events of 29 May 2015.4[4] Two further charges in the first set of charges arise from events several months later on 8 October 2015 in which the police pursued Mr Henderson and his son, John Henderson Jr, in a vehicle driven from 27 Astrolabe Street. Mr Henderson was apprehended and found to have 1.28 grams of methamphetamine and $2,550 in2 Henderson v R [2016] NZCA 394.3 R v Henderson, above n 1, at [47].4 Misuse of Drugs Act 1975, s 6(1)(f).cash in his possession. Mr Henderson faces a charge of possession of a Class A controlled drug for the purpose of supply5 and a charge of resisting police in relation to the events of 8 October 2015.6Second set of charges[5] The second set of charges arises from the execution of a search warrant at about 6.00 am on 30 March 2016 at 17 Puketai Place, Pukerua Bay. The Crown says Mr Henderson was staying there at the time. On this occasion the police found Mr Henderson in a bedroom at that property. The police located in that bedroom 2.23 grams of methamphetamine, approximately 40 grams of cannabis, electricscales, snaplock bags, four cellphones, glass pipes, a notepad said to be a "tick list"of people who owed Mr Henderson money and $49,000 in cash. Mr Henderson faces four charges arising from the events of 30 March 2016, namely two charges of possession of Class A and Class B controlled drugs for the purpose of supply,7cultivation of cannabis8 and possession of a Class C controlled drug for sale.9[6] Mr Henderson's son, Wiremu Henderson, faces charges arising from the events of 29 May 2015. Mr Henderson's other son, John Henderson Jr, faces chargesin relation to the events of 8 October 2015. The Crown alleges they live at 27 Astrolabe Street together with a fourth defendant, who has pleaded guilty to charges she faced arising from the events of 29 May 2015.[7] Since Judge Barry issued his ruling the Crown has obtained further evidence relating to the shoe located on 29 May 2015 in the compost heap. The Crown says DNA samples taken from that shoe include a DNA match for Mr Henderson.District Court decision[8] In the District Court the Crown submitted the two sets of charges should be joined because the evidence in relation to one set of charges was "cross-admissible"propensity evidence in relation to the other set of charges. Judge Barry recognised5 Misuse of Drugs Act, s 6(1)(f).6 Summary Offences Act 1981, s 23(a).7 Misuse of Drugs Act, s 6(1)(f).8 Section 9(1).9 Section 6(1)(f).that the quantities of methamphetamine and cash involved in the second set of charges were significantly lower than the quantities of methamphetamine and cash found in relation to the first set of charges.10 He concluded, however, "the evidenceof both sets of charges [was] cross-admissible as propensity evidence" and that thejury should have the benefit of all the evidence, rather than an "artificially constricted and redacted understanding of the dynamics of the cases" againstMr Henderson.11Legal principles[9] The Crown may bring an application proposing that two or more charges against a defendant be heard together.12 The charges must then be heard togetherunless the court "thinks it is in the interests of justice to [sever them]".13[10] A principle governing the joinder and severance of charges is that offending unrelated in time or circumstances should not be tried together unless the evidence of one incident is relevant to another to an extent that its probative value outweighs its prejudicial effect.14 Evidence in relation to one charge may be relevant to another charge where the facts are similar or the allegations are interconnected to such a degree that it would be artificial to present the charges separately.15[11] A second relevant principle is that where evidence in relation to one charge is admissible propensity evidence against another charge, it will usually be in the interests of justice to require the charges be heard together.16Appeal[12] In this Court Mr de Groot submitted that Judge Barry erred when he directed the two sets of charges be heard together. Mr de Groot submitted the evidence in relation to the second set of charges does not have any legitimate probative value in10 R v Henderson, above n 1, at [25].11 At [47].12 Criminal Procedure Act 2011, s 138(1).13 Sections 138(3)(b) and 138(4).14 Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257 at [28(a)].15 At [28(a)].16 See Banks v R [2011] NZCA 469; and Joblin v R [2016] NZCA 287 at [47].relation to any issue in dispute in relation to the first set of charges, or vice versa, and that the two sets of charges should therefore not be heard together. Even if it does, he submitted Mr Henderson will be unfairly prejudiced because "the jury willbe captivated by the presence of money and drugs in tandem and adopt a circular andunfair" method of reasoning that will risk a miscarriage of justice if Mr Henderson isconvicted.IssuesLeave[13] This appeal is governed by s 217(2)(f) of the Criminal Procedure Act 2011. The leave of this Court is therefore required before the appeal can proceed. The first issue we therefore had to consider was whether leave should be granted.Merits[14] The Crown has now conveniently refined the approach it took in the District Court. As a consequence, the substantive issues before us involved two questions:(a) Does the evidence in relation to the second set of charges have probative value in relation to an issue in dispute in the first set of charges?If so,(b) Does the probative value of the evidence concerning the second set of charges outweigh any risk that it may have an unfairly prejudicial effect on Mr Henderson?AnalysisLeave[15] The Crown does not concede leave to appeal should be granted. The Crown recognises, however, the appeal raised bona fide issues. We are satisfied this is acase in which leave should be granted so as to enable us to fairly consider the issues raised by the appeal. For this reason we granted leave to appeal on 10 August 2016.Merits[16] We commence our consideration of the merits by identifying the issue in dispute.17 The Crown now recognises that, for the purposes of admitting propensity evidence, the issue in dispute relates only to the charges arising from the events of 29 May 2015. The issue in dispute is whether Mr Henderson was the person who occupied the lounge of 27 Astrolabe Street and was the person who fled from the scene when the police arrived at that address at about 6.00 am on 29 May 2015.[17] We then consider whether the evidence relating to the second set of charges is propensity evidence that is probative to the issue in dispute.[18] We are satisfied that the methamphetamine, cash and drug-related equipmentfound in Mr Henderson's bedroom at 17 Puketai Place on 30 March 2016 is evidence that tends to show he is a methamphetamine dealer. It is therefore propensity evidence as defined in s 40(1)(a) of the Evidence Act 2006.[19] In assessing the probative value of this evidence in relation to the issue in dispute, we have considered the following factors:(a) The extent of the similarities18 between the evidence found on 29 May 2015 and 30 March 2016. We consider it significant that the police located at both addresses, in rooms where the Crown says Mr Henderson was staying, items which suggest Mr Henderson was dealing in methamphetamine. In reaching this conclusion we are mindful that there is a significant difference between the quantities of methamphetamine and cash located at the two properties. The other items located in the rooms said to be occupied by Mr Henderson suggest, however, that methamphetamine was being supplied by the person who occupied those rooms.17 Evidence Act 2006, s 43(1).18 Section 43(3)(c).(b) The connection in time19 between the events of 29 May 2015 and 30 March 2016. The two events were 10 months apart and there was a related intervening event on 8 October 2015 when Mr Henderson fled the police and was found to be in possession of methamphetamine and $2,550 in cash. We believe the events in issue are materially connected in time.[20] Contrary to Mr de Groot's submissions, we do not accept that Mr Hendersonwill suffer unfair prejudice by allowing the propensity evidence. There are two factors that have led us to this conclusion, namely:(a) The person who fled 27 Astrolabe Street on 29 May 2015 fitted Mr Henderson's general description. He was, according to the Crown's witnesses, living at that address at the time.(b) The DNA evidence linking Mr Henderson to the shoe found in the compost heap of the property adjoining 27 Astrolabe Street is consistent with the propensity evidence.[21] In summary, we are satisfied the jury considering Mr Henderson's chargescould reasonably conclude the evidence relating to the second set of charges demonstrates a propensity for Mr Henderson to deal in methamphetamine and that an inference can reasonably be drawn he was also dealing in methamphetamine from 27 Astrolabe Street on or about 29 May 2015. The evidence from the second set of charges therefore has strong probative value in relation to the issue in dispute within the first set of charges.[22] The strong probative value of the evidence relating to the second set of charges, concerning the identity of the offender in the first set of charges, outweighs any risk of unfair prejudice to Mr Henderson because the jury will be instructed on the limits to which this evidence can be used. In particular, the jury will be instructed on not engaging in illegitimate reasoning in relation to this evidence.19 Evidence Act, s 43(3)(b).It is also relevant there is evidence other than propensity evidence to link Mr Henderson to the scene on the May occasion.[23] For similar reasons we are also satisfied that any risk the jury would tend to give disproportionate weight to the propensity evidence when considering Mr Henderson's guilt or innocence can be addressed by an appropriately constructed direction to the jury about the purpose of the propensity evidence and warning the jury not to engage in illegitimate reasoning when considering the propensity evidence.[24] We have therefore concluded that Judge Barry was correct when he ruled that the two sets of charges should be heard together.Conclusion[25] For these reasons we granted leave to appeal but dismissed the appeal.Solicitors:John Miller Law, Wellington for AppellantCrown Law Office, Wellington for Respondent