WILLIAMS v R [2017] NZCA 176

WILLIAMS v R [2017] NZCA 176 [11 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA81/2016[2017] NZCA 176BETWEEN RICHARD NATHAN WILLIAMSAppellantAND THE QUEENRespondentHearing: 16 March 2017Court: Cooper, Woodhouse and Collins JJCounsel: D J Allan for AppellantS K Barr for RespondentJudgment: 11 May 2017 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)[1] Following a trial in the District Court at Hamilton before Judge Ruth and a jury, the appellant, Richard Williams, was found guilty on one charge of manufacturing methamphetamine and three charges of possessing equipment, materials or precursor materials for the manufacture of methamphetamine.11 R v Williams DC Hamilton CRI-2013-019-5001, 11 December 2014.[2] Mr Williams appeals against his conviction. He contends that there was a miscarriage of justice because the Judge erred in:(a) admitting evidence from Edward Mikaere, who had been jointly charged with Mr Williams;(b) failing to limit cross-examination of Mr Mikaere by the Crown, who had called him as a witness, after Mr Mikaere had been declared hostile; and(c) failing to give a warning about the reliability of Mr Mikaere'sevidence.Extension of time to appeal[3] The notice of appeal was filed over a year out of time. An extension of time to appeal is sought.[4] We are satisfied that an extension should be granted. There is some explanation for the delay, although not particularly persuasive. More importantly, one ground of appeal raises a point of interpretation of s 27 of the Evidence Act 2006 (the Act), which does not appear to have earlier been considered.Factual background[5] In September 2014 police received information that people were manufacturing methamphetamine in a shed at Manaia in the Coromandel. When police arrived at the property they found Mr Williams and John Wilson walking away from a shed. Mr Mikaere was found inside the shed. A fourth man, Johnson Renata, hid and was later arrested fleeing from the shed as it caught fire. Police found evidence that pseudoephedrine extraction and methamphetamine manufacture had taken place in the shed.[6] The four men were jointly charged with manufacture of methamphetamine and three charges of possessing equipment, materials or precursor substances for the manufacture of methamphetamine.[7] Mr Mikaere was interviewed by two police officers the same day. The interview was digitally recorded. Mr Mikaere admitted involvement in manufacture of methamphetamine and made statements incriminating the three othermen.[8] Mr Mikaere pleaded guilty to the four charges and was sentenced. This occurred before the trial of Mr Williams and the two other defendants commenced.[9] Mr Mikaere was called as a witness by the Crown. At the outset he acknowledged that he had pleaded guilty to the charges faced by the three defendantsand that he was a sentenced prisoner. He then declined to answer questions from theprosecutor. The Crown made an application under s 94 of the Act for Mr Mikaere tobe declared hostile to enable the Crown to cross-examine Mr Mikaere.[10] The Crown's application was opposed by the three defendants on twogrounds. The first appears to have been based on a possibility that Mr Mikaere'spolice statement might become evidence without Mr Mikaere being available forcross-examination. It is difficult to see how that could have happened. In any event,the Crown made it clear that Mr Mikaere would be available for cross-examinationby defence counsel. The second ground of opposition was that, if Mr Mikaerecontinued to refuse to answer questions, as he had done in the preliminaryquestioning by the Crown, the defendants would be unable to effectivelycross-examine Mr Mikaere on those parts of the statement that incriminated thedefendants. The Judge recorded that he accepted that the defendants would beunfairly hampered in presenting their defences if that happened, but concluded thatas matters stood at that point the Crown was entitled to the declaration of hostility itsought and that the Crown would be entitled to have the recording of Mr Mikaere'sinterview played to the jury as part of the evidence if Mr Mikaere continued to refuseto answer questions.[11] Mr Mikaere was then cross-examined by the Crown; his statement to policewas put in evidence by playing the recording; he was cross-examined by defencecounsel, and provided a number of answers favourable to the defendants; and hisevidence concluded with re-examination by the Crown involving cross-examination.A transcript of the police interview was put in evidence with copies provided to thejury.Grounds of appeal[12] There were, in substance, five grounds of appeal:(a) Ground one: Mr Mikaere's statement to police was admitted asevidence against Mr Williams (and the two other defendants) inbreach of s 27(1) of the Act. This was advanced as Mr Williams'primary ground of appeal. The remaining grounds were argued asalternative grounds, to be assessed cumulatively, if the primaryground was rejected.(b) Ground two: Mr Mikaere's statement to police was unfairlyprejudicial to Mr Williams and should have been excluded pursuant tos 8(1)(a) of the Act.(c) Ground three: Part of Mr Mikaere's statement, relating to drug dealingin Christchurch, should have been excluded because it was irrelevantto the charges against Mr Williams and it had not been admitted aspropensity evidence.(d) Ground four: After Mr Mikaere was declared hostile, the Judge erred by failing to limit the cross-examination of Mr Mikaere by the prosecutor in examination-in-chief and in re-examination.(e) Ground five: The Judge erred by failing to give warnings to the jury under s 122 of the Act about the reliability of Mr Mikaere's evidenceand that he had a motive to make a false statement to police.EvaluationGround one: The application of s 27(1) of the Act[13] Section 27(1) of the Act, in force at the relevant time, was as follows:227 Defendants' statements offered by prosecution(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.[14] Mr Allan's argument for Mr Williams was that Mr Mikaere's statement topolice was not admissible against Mr Williams because Mr Williams was a"co-defendant" of Mr Mikaere. The foundation for this proposition was the fact thatMr Williams and Mr Mikaere were jointly charged. The unstated premise of thisargument was that Mr Mikaere remained a co-defendant of Mr Williamsnotwithstanding the fact that Mr Mikaere had been convicted and sentenced.[15] Mr Allan referred to the following passage in Judge Ruth's summing-up,which related to Mr Mikaere and his evidence:Firstly, he was charged of course with these other three initially and he pleaded guilty and has been dealt with as you heard. The fact that he has pleaded guilty has no bearing at all on the guilt or innocence of these three men. He pleads guilty. He accepts his part in this matter. That does not mean that therefore any or all of these three men is guilty as well. The pointabout Mr Mikaere's status in this matter is that because he is a sentencedperson who has pleaded guilty it was competent for the Crown to bring him as a witness and that is all he is in this case, a witness.(Emphasis added by Mr Allan.)[16] Mr Allan used the emphasised part of this passage to seek to illustrate his argument of error by the Judge. Mr Allan submitted that, although Mr Mikaere was compellable to give evidence against Mr Williams, pursuant to s 73 of the Act, hisstatement nevertheless remained subject to s 27(1). Mr Allan submitted thatMr Mikaere was not, as the Judge said, simply a witness; he was a witness in respectof whom Mr Williams was a co-defendant.2 Section 27(1) was amended by s 9(1) of the Evidence Amendment Act 2016, which came into force on 8 January 2017.[17] Mr Allan did not cite any authority in support of his proposition. Mr Barr, forthe Crown, advised that he was not aware of Mr Williams' point having been raisedin any other appellate case. Mr Barr did refer to two decisions of this Court with comparable facts.3 The point now advanced by Mr Williams was not advanced for the defendants on appeal in the two other cases. In those cases this Court did notfind any impediment to the prosecution calling evidence from a witness who hadpreviously been convicted of the offences for which the defendants were on trial and,upon that witness being declared hostile, producing that witness's out-of-courtstatement.[18] For the reasons that follow, we are satisfied that s 27 did not apply to Mr Mikaere's statement to police and that the statement was admissible in evidenceagainst Mr Williams.[19] The words used in s 27(1) appear to have no application to Mr Mikaere'sstatement. Mr Allan's focus was on the word "co-defendant" coupled with theproposition earlier recorded that Mr Williams was a co-defendant of Mr Mikaerebecause they had originally been charged jointly. There is no definition of"co-defendant" in the Act. The meaning is to be ascertained from the text and in thelight of the purpose of the provision.4 Regard must be had to all of the words used ins 27(1). The critical words are "a co-defendant in the proceeding". Mr Williamswas not a co-defendant in the proceeding with Mr Mikaere. That conclusion seemsso obvious that it is, perhaps, not surprising that the interpretation now beingadvanced has not been advanced in earlier cases with comparable facts. The word"proceeding" is defined in the Act, but this does not alter the plain meaning ofs 27(1).[20] If the enquiry extends beyond the relevant words used in s 27(1) this conclusion is reinforced. Section 73(2) of the Act is the provision which enabled the Crown to call Mr Mikaere and the Court to compel him to give evidence. It providesthat "an associated defendant" is not compellable to give evidence for or against thedefendant in a criminal proceeding unless the associated defendant is being tried3 R v Mata [2009] NZCA 254 at [6]–[26]; and Pekepo v R [2011] NZCA 305 at [16]–[31].4 Interpretation Act 1999, s 5(1).separately from the defendant or the proceeding against the associated defendant hasbeen determined. "Associated defendant" is defined in s 73(4) and applied toMr Mikaere. The provision is as follows:(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; or(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.[21] The use of the expression "associated defendant" assists in interpreting theexpression "co-defendant". They have different meanings. This was explained inthe Law Commission's report which led to the Act:5[340] The Code rule dealing with the compellability of co-defendants uses the term "associated defendant" ... . An "associated defendant" is a person who has been charged with an offence that is the same as or related to the offence for which a defendant in a criminal proceeding is being prosecuted. Associated defendants may be tried jointly or separately. The term"associated defendant" is therefore wider than the term "co-defendant".This explanation of purpose, coupled with the text of s 73 when compared with the text of s 27, supports the conclusion that the words "defendant" and "co-defendant"as used in s 27 refer to people who are being tried together.[22] These conclusions are consistent both with the reasons for the rule now reflected in s 27(1) and the legislative history of s 27. The Law Commission had recommended reform of the law relating to the admissibility of out-of-courtstatements of one defendant against another defendant in a joint trial, by allowingsuch statements to be admissible for the prosecution against all defendants in a jointtrial, or against none.6 At the Select Committee stage of the passage of theEvidence Bill 2005, this proposal was rejected. The reasons were recorded asfollows:75 Law Commission Evidence: Reform of the Law (NZLC R55(1), 1999) (emphasis added).6 At [115].7 Evidence Bill 2005 (256-2) (select committee report) at 4 (emphasis added).Defendants' statements offered by prosecutionWe recommend that clause 23 [now s 27] be amended so that a defendant'sstatement would be inadmissible against a co-defendant in joint criminal trials. A statement made by a defendant would be admissible only against that defendant. This would maintain the current law relating to statements by co-defendants. In our view the admission of such a statement against a co-defendant would unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and complexity of many joint trials.[23] Section 27 has been amended twice, but neither of the amendments, and explanatory notes or commentary leading to the amendments, indicate that s 27(1) was intended to apply beyond joint trials.8[24] The primary reason for the protection afforded to a co-defendant in s 27(1) isthat the co-defendant would have no means of challenging the out-of-court statementunless the defendant who made the statement chose to give evidence, something overwhich a co-defendant has no control. What occurred in the present case, with alldefendants being able to cross-examine Mr Mikaere, illustrates in a practical sensewhy s 27(1) had no application and why there was no unfairness to Mr Williams.The Judge's direction to the jury that Mr Mikaere was simply a witness, criticised byMr Allan, was entirely accurate.Ground two: Mr Mikaere's statement to police was unfairly prejudicial[25] The submission in support of this ground was simply that the Judge made anerror by failing to rule that Mr Mikaere's statement to police was unfairly prejudicialand that it should have been excluded under s 8(1)(a) of the Act. The argument wasnot developed.[26] We are satisfied that this ground has no merit. Mr Mikaere's statementsaffecting Mr Williams were undoubtedly prejudicial to Mr Williams but, subject toconsideration of one part of the statement, discussed next under ground three, theevidence was not unfairly prejudicial.8 See Evidence Amendment Bill 2007 (129-1) (explanatory note) at 1–2, which became the Evidence Amendment Act 2007; and Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at 60–67, which led to the Evidence Amendment Act 2016.Ground three: The Christchurch evidence[27] In the police interview Mr Mikaere said that Mr Williams had required him to take methamphetamine to Christchurch. He said there were three trips, with Mr Williams going with him on the first trip. He said quantities of between two and five ounces were transported on each occasion and sold for $16,000 an ounce. He made other statements incriminating Mr Williams in these alleged transactions.[28] Mr Allan submitted that this evidence should not have been admitted forthree reasons: it was irrelevant to the charges Mr Williams faced, which related onlyto manufacture and possession of items in Manaia; there had been no application forthe evidence to be admitted as propensity evidence; and the evidence was unfairlyprejudicial. In respect of the four alternative grounds — grounds two to five —Mr Allan advanced this ground as the strongest point.[29] Mr Barr submitted that, although there was no evidence that themethamphetamine Mr Mikaere said was taken to Christchurch had come from themanufacture of methamphetamine in Manaia, the evidence was nevertheless relevantand admissible as background evidence in respect of the charges of manufacture atManaia to show that there was an ongoing criminal association between the grouparound the time that Mr Williams purchased a distiller which was the same as adistiller found in the shed at Manaia. This distiller had been purchased byMr Williams on 9 August 2013 and a boarding pass for a flight from Christchurch,dated 15 August and in Mr Mikaere's name, was found in a vehicle associated withMr Williams. It was also submitted that the evidence "bolstered" Mr Mikaere'sevidence that his role in the group was secondary.[30] We consider that this evidence was of limited probative value and had thepotential to be unfairly prejudicial. We are nevertheless satisfied, for the reasons thatfollow, that there was no miscarriage of justice as a result of the evidence beingconsidered by the jury because this did not create a real risk that the outcome of thetrial was affected or render the trial unfair.[31] The Christchurch evidence, to the extent that Mr Mikaere's statement referredto alleged conduct of Mr Williams, comes within the definition of propensityevidence. But a propensity evidence direction was not required. This is because the Crown, in respect of this evidence, did not rely on propensity reasoning and theevidence did not involve aspersions on Mr Williams' character in respects not directly associated with the alleged offending in Manaia.9[32] The remaining question is whether the Judge should have given a direction on the way in which the Christchurch evidence could and could not be used; in particular, whether the Judge should have directed the jury that they could not use the evidence as tending to show that Mr Williams was a person who dealt in methamphetamine.[33] The Supreme Court made some general observations about directions inWi v R as follows:10[40] We are of the view that in principle mandatory directions should be reserved for cases in which they are essential to ensure the defendant has a fair trial. It is generally better to leave the extent and content of directions to the trial judge who has the feel of the case. We recognise it was said inFalealili that this approach might tend towards uncertainty and inconsistency. We are not, however, persuaded that this is likely to be a significant problem.[41] Summings-up should be tailored to the particular case. Specimen directions are helpful when they are required. A very important part of a trial judge's function is to give the jury as much help as possible by identifyingthe issues presented by the case and the evidence which is relevant to those issues. The summing up should also, to the extent necessary, explain to the jury in what way evidence should and should not be used. Directions should not be mandatory unless, without them, there is a real risk that the jury will approach the matter in an inappropriate way or in a way which does not do the defendant's case justice.[34] We are satisfied that a direction was not required because the Christchurch evidence was peripheral and there was no real risk that the jury would use the evidence in an inappropriate way.[35] We agree with Mr Barr's submission that little was made of this evidence inthe closing addresses of the prosecutor and defence counsel. It was briefly touched9 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [91].10 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11.on by the Crown in two short passages in a reasonably long closing address and in respect of matters unrelated to any form of propensity argument.[36] In his summing-up the Judge touched only briefly on this evidence. Whenoutlining part of the Crown case against Mr Williams the Judge noted a reasonablenumber of points made by the Crown and included in his summary a single referenceto Mr Mikaere's boarding pass for a trip to Christchurch being found in the vehiclebeing used by Mr Williams. The Judge said that this, with the other matters henoted, were relied on by the Crown as showing "links to these men all operatingtogether". The Judge also noted that both Mr Williams and Mr Renata denied beingpart of a "drug run" to Christchurch.[37] Finally, we note that there was no objection from Mr Williams, or the otherdefendants, to this part of Mr Mikaere's statement being admitted. The objectionhad been to the admission of the entire statement, as part of the defence opposition tothe Crown's application to have Mr Mikaere declared hostile. There was ampleopportunity for Mr Williams' trial counsel (not Mr Allan) to raise any issue relatingto the Christchurch evidence in the course of the discussions in chambers on theCrown's hostile witness application. At that point it was highly likely that the videowould be put in evidence.[38] There was a substantial body of evidence against Mr Williams. Havingregard to the way in which the case was presented by the Crown, the Christchurchevidence was not of much consequence. There was no miscarriage of justice fromthis evidence being available for the jury's consideration without a specific directionfrom the Judge as to the way in which the evidence should and should not be used.Ground four: Cross-examination of Mr Mikaere by the Crown[39] Mr Allan submitted that, after Mr Mikaere had been declared hostile, theJudge failed properly to control the prosecutor's cross-examination of Mr Mikaere in evidence-in-chief and in re-examination. In Mr Allan's written submissions thecross-examination said to be objectionable was not identified and this ground of appeal was not developed orally.[40] We are satisfied that there is nothing in this ground of appeal. Mr Allanresponsibly acknowledged, at the outset, that it was accepted that Mr Mikaere was acompellable witness; that there was no error by the Judge in declaring him hostile;and that, as a result, the Crown was entitled to cross-examine Mr Mikaere.[41] Section 94 of the Act provides that the Judge, on an application to cross-examine, may give the party applying permission to cross-examine the witness to the extent authorised by the Judge. There were no directions from the Judge limiting the scope of cross-examination, but that has not resulted in any unfairness for Mr Williams. There was no application by any defence counsel for directions on the extent of cross-examination by the Crown. That is understandable because the purpose of cross-examination by the Crown was clear — to seek to adduce directly from Mr Mikaere evidence along the lines of what was contained in the statement hemade to police and, if he continued to refuse to answer questions, to put therecording into evidence with the transcript. That is what happened.[42] There was nothing objectionable in the Crown's questions in re-examination.The questions arose out of cross-examination of Mr Mikaere by defence counselresulting in evidence which, in large measure, contradicted most of what Mr Mikaerehad said in his statement to police and was favourable to Mr Williams and theother two defendants. In re-examination Mr Mikaere was challenged, throughcross-examination, on that evidence, but that did not result in unfairness. Given thehostile witness ruling, and Mr Mikaere's answers to defence questions, theprosecutor was entitled to cross-examine Mr Mikaere in re-examination.Ground five: Warning under s 122 of the Act about Mr Mikaere's evidence[43] Mr Williams contended that the Judge erred by failing to give a warning to the jury under s 122 of the Act about the reliability of Mr Mikaere's evidencecoupled with a warning that Mr Mikaere had a motive to make a false statement topolice. Mr Allan acknowledged that the warning about reliability had to be awarning in respect of all of Mr Mikaere's evidence, not just in relation to what hesaid in the statement to police.[44] The relevant provisions of s 122 are:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.(4) It is not necessary for a Judge to use a particular form of words in giving the warning.[45] Mr Allan submitted that an unreliability warning had to be given becausethere had been a very marked shift between what Mr Mikaere said in his statement tothe police and what he said in his direct evidence in Court.[46] A warning is not mandatory. Section 122(1) reads that "the Judge may warnthe jury". As stated by the Supreme Court in Wi v R, in the passage cited above, what is required in each case is exercise of judgment by the trial Judge having regard to the circumstances.[47] We are satisfied that a reliability warning was not required. None of the defence counsel sought such a warning. The competing positions of the prosecutionand the defence had been made abundantly clear to the jury, as Mr Allanacknowledged. There was no contention for Mr Williams that the Judge'ssumming-up in respect of Mr Mikaere's evidence was inadequate or inappropriate inany way other than the absence of formal directions under s 122. The Judge'sdirections, relating to Mr Mikaere and to his evidence, include the direction recorded above at [15], where the Judge directed the jury to treat Mr Mikaere like any other witness. This was followed by observations that Mr Mikaere's evidence presented difficulties for the jury because of the conflict between his statement to the policeand his direct evidence in Court and that "the two could hardly be morediametrically opposite". The cases for the Crown and Mr Williams (and the otherdefendants) were outlined. Towards the end of this summary, after a reference toMr Mikaere, the Judge said:[40] However, again they are the competing matters that you will have to contend with but I simply mention his [Mr Mikaere's] evidence because youare going to have to make a call on his credibility. Do you believe him? Ifyou do, what part do you believe [?][48] We are satisfied that s 122(2)(c) did not require a warning to be given. The defence contention that Mr Mikaere had a motive to lie was before the jury. A warning from the Judge that Mr Mikaere had a motive to lie would also have been a two-edged sword for the defence. This is because a balanced direction on this would have required a suggestion that he might have had a motive to lie when he gave evidence favourable to the defendants.Result[49] For these reasons we are satisfied that none of the grounds of appeal are made out. The application for an extension of time to appeal is granted, but the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent