TOKI V R [2017] NZCA 533

TOKI V R [2017] NZCA 533 [21 November 2017]ORDER PROHIBITING PUBLICATION OF THE REASONS FORJUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHERPUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OFTRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA436/2017[2017] NZCA 533BETWEEN MALINA TOKIAppellantAND THE QUEENRespondentHearing: 13 November 2017Court: Harrison, Lang and Ellis JJCounsel: M N Pecotic for AppellantB D Tantrum and J V Angelson for RespondentJudgment: 21 November 2017 at 2 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Publication of the reasons for judgment in news media or on the internetor other publicly available database is prohibited until final disposition oftrial. Publication in law report or law digest is permitted.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] On 18 July 2017 Judge Gibson ruled that Mr Toki's previous conviction forpossession of methamphetamine for supply was admissible propensity evidence at MrToki's upcoming trial on a further charge of possession of methamphetamine forsupply.1 Mr Toki appeals that decision.[2] Leave to bring such an appeal is required. The Crown opposes the applicationfor leave on its merits but did not seek a separate leave hearing. We are satisfied thatMr Toki's application for leave to appeal the pre-trial order should be granted under s217(2)(b) of the Criminal Procedure Act 2011: the evidence is important to all partiesand the contest should be dealt with prior to trial.2BackgroundThe previous conviction[3] On 23 August 2015, the police executed a search at Mr Toki's Mt Eden homeand found an AK-47 firearm, ammunition, a small plastic box containing 19.5 gramsof methamphetamine, $1000 cash, cannabis utensils, and King Cobra gangparaphernalia. Mr Toki was not present at the time of the search. His finger printswere found on the methamphetamine container.[4] Mr Toki pleaded guilty to possession of a firearm and on 7 December 2015was sentenced to four months' home detention at a Kingsland address. He later alsopleaded guilty to possession of methamphetamine for supply and on 6 April 2016 wassentenced to eight months' home detention at the same address.The present charge[5] On 17 August 2016, while Mr Toki was still serving his sentence on the earliermethamphetamine charge, the police conducted a search of Mr Toki's home detentionaddress. On this occasion Mr Toki was present. Although not recorded in thesummary of facts, Mr Toki says that he and an acquaintance, Ms Karaka, were sitting1 R v Toki [2017] NZDC 15667 [Pre-trial ruling].2 Hohipa v R [2015] NZCA 73 at [25].together at a table in the living area. He says that as police entered the house each ofthem grabbed some items off the table and Ms Karaka also smashed amethamphetamine pipe on the floor.[6] When searched, Mr Toki was found to be in possession of a Gucci shoulderbag, whose contents included a Rothmans cigarette packet which had within it fivezip-lock bags containing a total over 4.342 grams of methamphetamine, together with$8,320 cash. Police also found $105 cash and a small quantity of cannabis in MrToki's pocket. Ms Karaka was also found to have a Rothmans cigarette packet in herpossession but hers contained cigarettes. The search of the house also revealed a setof electronic scales, a large number of zip-lock bags, King Cobra gang paraphernalia,and a handwritten list which the Crown will say is a "tick list" recording drug sales.When interviewed later that day, Mr Toki accepted the cannabis was his but deniedpossession or control of the methamphetamine. He says that in the heat of the momenthe mistakenly grabbed Ms Karaka's cigarette packet off the table (without knowingthat it contained methamphetamine) and she grabbed his.District Court decision[7] Judge Gibson noted both counsel's agreement that the principal issue at trialwill relate to the mental element of the possession offence, namely whether Mr Tokiknew he was in possession of the methamphetamine and, if so, whether he had themethamphetamine for the purpose of supply, given that the amount found was lessthan the statutory supply presumption threshold.3 The Judge referred to the decisionof this Court in Luang-Saysy v R,4 which the Crown had said was on all fours with MrToki's.5 He expressed the view that (as in that case) the probative value of Mr Toki'searlier conviction was high, and that any prejudice was not unfair and did not outweighthe probative value.6 An appropriate direction, he said, would ameliorate any concern.3 At [4].4 Luang-Saysy v R [2014] NZCA 301.5 Pre-trial ruling, above n 1, at [7].6 At [8].The appeal[8] Ms Pecotic for Mr Toki submitted that the Judge overstated the probativeweight of the previous conviction and understated its unfairly prejudicial effect.In terms of the former, she said that he failed (under s 43(3) of the Evidence Act 2006)properly to take account that:(a) the packaging and quantity of the methamphetamine found was quitedifferent as between the first and second occasions;(b) apart from the involvement of methamphetamine, there is no similaritybetween the two occasions and nothing unique or distinctive that mightlogically link the two; and(c) there is no relevant connection in time between the previous convictionand the current matter.[9] Conversely, Ms Pecotic submitted that Mr Toki had a good defence availableto him. It would be that he lacked knowledge that the drug was present and that it wasMs Karaka who was seen to be in possession of utensils and the scales were found inthe kitchen, near her cellphone. Ms Pecotic said that this defence would be unfairlyundermined by permitting the propensity evidence to be led; there was a real risk thatthe jury would be diverted by it and would (wrongly) reason that simply because MrToki has been involved in methamphetamine offending before, he has been so again.Discussion[10] Judge Gibson correctly identified the issue arising from Mr Toki's presentcharge to which the propensity evidence is relevant. It is whether he had possessionof the methamphetamine found in his house in the sense that he knew of its presence,that it was under his control and he intended to exercise that control. Even though therelevant evidence is of Mr Toki's conduct on only one previous occasion, we aresatisfied that it tends to show his propensity to possess methamphetamine.77 See R v Taea [2007] NZCA 472 at [38] citing R v Hanson [2005] 1 WLR 3169 (CA) at [9].[11] What then is the probative value of the propensity evidence? Although thefrequency with which a particular tendency is exhibited is necessarily relevant toprobative value, as s 43(3) of the Evidence Act makes clear, that is not the only factorin the mix.8 And here, we consider that:(a) there is a close, and therefore probative, temporal connection betweenthe two events; only 357 days separate the propensity offending andactive charges, four months of which Mr Toki spent in prison;(b) there are a number of similarities between the circumstances of theearlier offending and the present:(i) the presence of zip-lock bags;(ii) the cash that was found nearby ($1000 on the first occasion and$8,425 on the second);(iii) the electronic scales that were found at both premises; and(iv) the ammunition and gang paraphernalia which were locatedclose by.[12] In combination, we consider that these factors mean that the probative value ofthe earlier conviction is relatively high, notwithstanding that the quantity ofmethamphetamine found on the second occasion was considerably less than on thefirst.9 Indeed it is arguable that the respective quantities of methamphetamine foundwere in inverse proportion to the respective amounts of cash located. But in any event,these are jury points. And if a jury accepts that the Crown has proved possession byMr Toki, the quantity of methamphetamine involved on the first occasion will alsoundoubtedly assume considerable probative value in relation to the question ofwhether his possession on the second occasion was for the purposes supply.8 See for example Powle v R [2016] NZCA 410 at [10]; Patten v R [2014] NZCA 486; and Holdemv R [2014] NZCA 546.9 For example in Luang-Saysy v R, above n 4, at [8] it was accepted that the type of offending wassimilar notwithstanding the difference in scale.[13] As to prejudice, there is the commonly made point that probative value cannot,without more, give rise to the relevant unfairness. Nor are we able to accept MsPecotic's submission that the admission of the evidence will prevent Mr Toki testingthe prosecution case on other grounds. The propensity evidence will not, for example,prevent Mr Toki from offering his own explanation for having such a large amount ofcash (he says it had largely been collected by him from family members for a funeral).Moreover, his previous recent conviction arguably supports the point made by Mr Tokiduring his DVD interview, namely that the conviction had made him recently andacutely aware of the consequences of possessing methamphetamine, that he was tryingto move on with his life and would not therefore knowingly have possessedmethamphetamine for supply.[14] Accordingly we agree with Judge Gibson that any unfair prejudice that mightarise from the admission of Mr Toki's earlier conviction is outweighed by theprobative value of the evidence of the earlier conviction. And any such prejudice ismore than capable of being countered by the standard jury direction.Result[15] Leave to appeal is granted but the appeal is dismissed.[16] To protect Mr Toki's fair trial rights, publication of this judgment and any partof the proceedings (including the result) in news media or on the internet or otherpublicly available database is prohibited until final disposition of the trial. Publicationin law report or law digest is permitted.Solicitors:Crown Solicitor, Auckland for Respondent