Baillie v The Queen
[2021] NZCA 458
•10 September 2021
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA597/2019 [2021] NZCA 458 |
| BETWEEN | TYLER BAILLIE |
| AND | THE QUEEN |
| CA611/2019 | ||
| BETWEEN | ROSANA MARIO MORGAN | |
| AND | THE QUEEN | |
| Hearing: | 12 May 2021 |
Court: | Miller, Venning and Peters JJ |
Counsel: | R M Mansfield and S R Lack for Appellant CA597/2019 |
Judgment: | 10 September 2021 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeals against conviction are dismissed.
BThe sentence appeals are allowed in part. The minimum periods of imprisonment of 17 years for murder are set aside. Minimum periods of 14 years imprisonment are substituted for both appellants.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Table of Contents
The Crown case against the appellants [7]
Events leading up to the murder [7]
The evidence against Ms Morgan [10]
The evidence against Mr Baillie [19]
The trial [22]
The conviction appeals [36]
Evidence sufficient if admissions accepted [44]
Incentivised witnesses [45]
Admissibility of prison informant and other incentivised secondary confession evidence [46]
Reliability directions for prison informant evidence [56]
The reliability warning for the two cellmates of Mr Baillie [61]
The reliability warning for Mr Harmon [65]
Was a reliability warning required for other secondary admissions
witnesses? [67]
Crown case based on Mr Baillie’s statements [71]
Co-defendant’s statements [80]
Lies direction [81]
The sentencing [82]
The appeals [88]
Was s 104 engaged? [90]
What MPI would be imposed but for s 104? [93]
Was a 17-year MPI manifestly excessive? [107]
Disposition [108]
Tracey-Anne Harris died in her home at Stoke on or about 7 February 2016. The appellants were found guilty at trial of her murder. The trial Judge, Thomas J, found at sentencing that it was a case of murder for hire; the appellants, Tyler Baillie and Rosana Morgan, acted at the request of a Vicky Brookes, whose husband had left her for Ms Harris, and they did so for payment in the form of cash and methamphetamine.
The Crown case was that Ms Morgan administered a cocktail of methamphetamine, methadone and GHB, which was intended to kill Ms Harris but failed because her tolerance for drugs was high. After she lost consciousness Mr Baillie smothered her with a pillow.
Decomposition was advanced when the body was found several days later and the pathologist could not find evidence of asphyxiation. Death was attributed to multiple-drug toxicity. For that reason the Crown alleged in the alternative that by administering the drugs Ms Morgan may have caused Ms Harris’s death, with Mr Baillie acting as a party. In that case, the Crown was prepared to accept that Ms Morgan would have been guilty of manslaughter only. The verdicts establish that the jury must have found Mr Baillie suffocated Ms Harris and Ms Morgan assisted him, knowing he intended to kill.
The case rested on circumstantial evidence and admissions made by the appellants to a substantial number of witnesses, some of whom had incentives to give false evidence.
On appeal, both appellants say that the trial Judge gave what are, in light of the subsequent Supreme Court decisions in W (SC38/2019) v R[1] and Roigard v R,[2] inadequate warnings about admissions witnesses who were incentivised to give evidence for the Crown. Both say the evidence did not sufficiently exclude the possibility that Ms Harris overdosed herself. Mr Baillie contends that the Judge wrongly refused to warn the jury that the Crown case against him was based entirely on reports of what he had said. Ms Morgan says the evidence did not establish that she knew of any plan to kill Ms Harris and intentionally assisted Mr Baillie, that the lies direction was unfairly prejudicial, and that the jury were not given an adequate warning against relying on a co-defendant’s out-of-court statement.
[1]W (SC38/2019) v R [2020] NZSC 93, [2020] 1 NZLR 382.
[2]Roigard v R [2020] NZSC 94, [2020] 1 NZLR 338.
The appellants were sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years, the Judge drawing no distinction between them.[3] She found, for purposes of s 104 of the Sentencing Act 2002 and beyond reasonable doubt, that the murder was committed for money and was especially callous.[4] The appellants contend on appeal that s 104 was not engaged and the MPIs were manifestly excessive.
The Crown case against the appellants
Events leading up to the murder
[3]R v Morgan [2019] NZHC 2718 [Sentencing notes] at [46]–[48]. Mr Baillie was also sentenced on three charges of supplying GHB and Ms Morgan on five charges of supplying methamphetamine, one charge of offering to supply that drug, and one charge of supplying GHB. In each case the person supplied was not Ms Harris. The appellants had pleaded guilty before trial to all of these charges except, in Ms Morgan’s case, that of supplying GHB and one charge of supplying methamphetamine. The sentence appeals do not address these sentences.
[4]At [41]; and Sentencing Act 2002, s 104(1)(b) and (e).
The victim, the appellants and many of the witnesses were members of the Nelson drug scene, known to one another, and some of them were related. Ms Harris was Mr Baillie’s aunt. The Crown case was that Ms Brookes fell out with Ms Harris over her husband Ricky Brookes’s behaviour, and shortly before Ms Harris’s death the two women came to blows. The Crown alleged that Ms Brookes had access to methamphetamine and both appellants were users of that drug, as was Ms Harris.
Mr Baillie stayed at Ms Morgan’s house in Nelson. The Crown alleged that in the weeks leading up to Ms Harris’s death both appellants had access to GHB and administered it to a revolving cast of young people who frequented Ms Morgan’s house. The Crown contended that the appellants were interested in how much GHB it might take to kill a person. This offending was the subject of separate drugs charges against them.
Ms Harris had a teenage daughter, Mr Baillie’s cousin. Several days before Ms Harris died, Mr Baillie encountered the daughter with a boy who was driving her in Ms Harris’s unregistered car. Neither of them had a driver’s licence. He confiscated the keys and took her back to Ms Morgan’s house. The Judge found at sentencing that the appellants took the opportunity to keep the daughter away from home while Ms Harris was killed. Ms Harris repeatedly asked Mr Baillie to return her daughter and the girl herself was fobbed off by both appellants when she asked to go home.
The evidence against Ms Morgan
The Crown case was that Ms Morgan began texting Ms Harris just after 7.00 pm on the evening of Saturday 6 February 2016. Later that evening Ms Morgan came around to Ms Harris’s place and they spent the rest of the night there. Ms Morgan and Mr Baillie exchanged texts during the evening; the Crown alleged that in these texts they agreed to proceed. At 2.16 am she texted Mr Braillie “U better luf me 4 eva” and he replied affirmatively. At 2.32 am she texted him saying they had just went for a drive and “its kicked it fken fast”. At 4.10 am she texted Ms Harris offering to have a shot together.
At about 5.30 am Ms Morgan arranged to be picked up from Ms Harris’s home. It appears she met Mr Baillie, who told her to “bring a measuring thing”. She set about sourcing drugs. She is said to have made admissions to two witnesses about this time. She told one, Stephanie Fulcher-Poole, that she had been feeding Ms Harris up on “rinse” (GHB) and that Ms Brookes was paying her 11 g of methamphetamine to do it. To the witness, Jacob Harmon, she said she had just injected someone who would probably not be around for much longer. Mr Harmon deposed that on the morning of 7 February 2016 Ms Morgan and Mr Baillie had four bags of methamphetamine between them, and estimated the value of one bag to be at $5,000. The Crown contended that this was payment from Ms Brookes. Ms Harris was still alive at this time; she had been seen having a cup of tea with Ms Morgan on Sunday morning and she was in contact with several people, including Mr Baillie whom she again asked to return her daughter. Later that day Ms Morgan told Mr Harmon that the lady whom she had been injecting was suffocating but still alive so she “gave her a hand”.
The Crown contended that Ms Morgan visited Ms Harris several times on 7 February 2016, administering what was described in evidence as a “hot shot” of drugs. There were texts between her and Ms Harris arranging to meet. In the morning Ms Morgan sourced pills with an acquaintance, Cheyanne Case-Connor. At 12.27 pm she texted Ms Case-Connor asking her to tell Mr Baillie “it jst bout finished will be well dne in a hour i love home kill”. Ms Case-Connor read that text to Mr Baillie. The overdose did not kill Ms Harris, so Ms Morgan set about obtaining methadone. There is evidence that she did obtain it at about 2.47 pm. The Crown contended that she administered it to Ms Harris, who eventually lost consciousness.
Ms Harris sent her last text at 4.46 pm. At 5.47 pm, Ms Morgan texted Mr Baillie three times, urgently seeking to make contact. At 6.11 pm she texted him saying “I FELL SICK”. At 7.01 pm she texted him saying “WE GO TO UR AUNTIES NW” and he replied “I js getn dogroll met u hme”. It appears that by 7.49 pm Ms Morgan was at home.
The Crown contended that during the period since Ms Harris’s last text, Mr Baillie joined Ms Morgan at Ms Harris’s house and held a pillow over her face to suffocate her.
There was expert evidence that methadone, methamphetamine and GHB were detected in Ms Harris’s blood. The level of methadone was sufficient to cause death. There was no evidence that Ms Harris sourced that drug from anywhere, or was a user of it at the time, but she had been on a methadone programme in the past and the possibility that she had accidentally overdosed could not be excluded. Methamphetamine was detected at a level which could have been fatal. GHB was also present in significant quantities, but it occurs naturally in the body and is produced after death, and the possibility that it resulted from post-mortem production could not be excluded. There was no evidence that Ms Harris’s body had been injected, and none of suffocation, but as noted Ms Harris had been dead for some days by the time of the autopsy and there is evidence, in the form of a claim by Ms Morgan, that Ms Harris had been injecting between her toes.
The police found a syringe cap in Ms Harris’s room. The cap carried Ms Morgan’s DNA. The Crown alleged that the appellants had left it behind after cleaning up. The body was lying face down, covered with a blanket and with no evidence of violence. The Crown alleged that the house had been staged to look like a burglary; items were strewn about the place.
Mr Brookes entered Ms Harris’s house after not hearing from her for several days and found the body. Ms Morgan was interviewed within a few days. The Crown contended that she lied about her dealings with Ms Harris, claiming that the last time she had seen Ms Harris was on 4 February 2016 or earlier. She further lied when interviewed again nearly two years later, on 14 February 2018. We return to the topic of lies below.
Ms Morgan is said to have made admissions to a witness, Blair McNaughton. He deposed that on the morning of 7 February 2016 he received a text from Ms Morgan saying she needed him, and when he went to her place she told him they had made up a hot shot but the person’s body started to handle it so “we had to suffocate her”, referring to a pillow. She wanted him to go to the victim’s house, wipe down the door handles and check Ms Harris’s mouth to ensure there were no fibres or anything obvious. She also asked him to put the needle or syringe back in Ms Harris’s arm to make it look like she had done it herself. Mr McNaughton said he refused to assist.
The evidence against Mr Baillie
The background and circumstantial evidence against Ms Morgan also tended to implicate Mr Baillie, as did the texts between him and Ms Morgan. There was also evidence of his communications with Ms Brooke around the time of Ms Harris’s death. There was evidence that he and Ms Morgan both had substantial quantities of methamphetamine on 7 February 2016. However, whereas Ms Morgan’s cellphone polled the network in the vicinity of Ms Harris’s home around the time of her death, Mr Baillie’s did not.
Mr Baillie was said to have made admissions to a number of witnesses: Nicole Fearnley, Mr McNaughton, Shannon Mosen-Taku, Dion Cumming, William Hayes, and Ms Case‑Connor:
(a)Ms Fearnley deposed that Mr Baillie turned up at her house, said Ms Harris was dead and stated that he “fuckin did it”, adding that he and Ms Morgan had been involved with a hot shot and he had to phone another man to come and suffocate her with the pillow because he could not do it himself.
(b)Mr McNaughton said that he was with Mr Baillie when he met Ms Brookes at a Nelson address and Mr Baillie asked when he was getting the rest of his money, saying he was waiting for $8,000 and half an ounce of “crack” (methamphetamine) for the job he did for his auntie, which he described as an overdose. Mr McNaughton also said that when he and Mr Baillie happened to be in custody together on 26 September 2016, Mr Baillie said that he acted at Ms Brookes’s instigation, it was all over her husband sleeping around, and he had spent the money.
(c)Mr Mosen-Taku also deposed to statements made by Mr Baillie when the two men were in custody in September 2016. He deposed that Mr Baillie said he and Ms Morgan had been in Ms Harris’s bedroom and that Mr Baillie had held Ms Harris while Ms Morgan injected her with methamphetamine. The dose was not enough and Mr Baillie held a pillow over Ms Harris’s head until she stopped breathing. He did it for payment.
(d)Mr Cumming said that he was with Mr Baillie after Ms Harris’s body was discovered. He accompanied Mr Baillie to the police station and then to Ms Brookes’s house. On the way, Mr Baillie began crying and admitted strangling “her”, which Mr Cumming interpreted to mean Ms Harris. When they arrived at Ms Brookes’s house, Mr Baillie told Ms Brookes that Ms Harris was dead and they hugged.
(e)Mr Hayes deposed that Mr Baillie told him that he and Ms Morgan had poisoned Ms Harris with a hot shot.
(f)Ms Case-Connor deposed that Mr Baillie told her he hated Ms Harris but could not kill her.
Mr Baillie was spoken to by the police on 14 February 2016, giving his account of coming across Ms Harris’s daughter and taking her back to Ms Morgan’s house.
The trial
Just before trial the appellants pleaded guilty to charges of supplying drugs; in Ms Morgan’s case, supplying methamphetamine to various people on 7 February 2016, and in Mr Baillie’s to supplying GHB in the days preceding 7 February 2016. These charges formed part of the factual narrative at trial. At trial Ms Morgan was found guilty of supplying methamphetamine on 9 February 2016 and of supplying GHB in February 2016.
We have outlined the Crown case at [1]–[3] above. The case for Ms Morgan was that the Crown had failed to prove culpable homicide. Ms Harris was a drug addict who had been known to use methadone and methamphetamine, and she died of a self-administered drug overdose. Counsel emphasised evidence that tolerance for methadone falls when a person is not using it regularly, so the risk of accidental overdose is high. Ms Harris was also using a prescription antidepressant and she had serious health conditions. Ms Morgan did not go to Ms Harris’s house after leaving there on Sunday morning; there was evidence that she was elsewhere in Nelson that day. Ms Morgan did not admit to killing Ms Harris; the witnesses who deposed to those admissions were unreliable and were not telling the truth. Counsel emphasised that some of them had a motive to lie, such as a desire for leniency on other charges of their own. The DNA found on the syringe cap was a trace quantity which could have got there in a number of ways; counsel pointed out that Ms Morgan had been in the house with Ms Harris and had been seen having a cup of tea with her on her bed on Sunday morning.
Counsel for Mr Baillie also contended that the Crown had failed to prove culpable homicide; rather, death resulted from a drug overdose, which may have been accidental or self-inflicted having regard to Ms Harris’s mental state at the time. Methadone was the most likely cause, and Ms Harris must have had her own supplier of that drug. There was no evidence of restraint or defensive injuries as one might expect had she been smothered or forcibly injected. Counsel emphasised that Mr Baillie was a family member whom Ms Harris had cared for. The evidence positively disproved Mr Baillie’s participation in her murder; not only were there no texts implicating him, but the cell site data showed he was nowhere near Ms Harris’s home at any relevant time. Not one of the 425 communications through Mr Baillie’s phone during the relevant period connected with a cell site anywhere near Ms Harris’s home. There was no DNA of Mr Baillie’s on the pillow and it is highly unlikely that anyone who smothered Ms Harris would then turn her over onto her stomach. The police did not initially treat it as a suspicious death.
Mr Baillie further contended there was no reliable evidence of a contract to kill Ms Harris; his communications with Ms Brookes were unremarkable. Drug use at Ms Morgan’s house weeks before Ms Harris died was probative of nothing. Mr Baillie did not engineer the daughter’s absence from Ms Harris’s house; he stumbled across her when she was out in a car when she should not have been, and he kept her with him because everyone thought Ms Harris was on a binge. None of the witnesses who gave evidence of admissions could be believed; they came forward because they were incentivised, and their evidence was self-serving. Two of them said that admissions were made in a day room at the Nelson police station, but other prisoners who were in the room at the time observed no such conversations.
The admissions witnesses were subjected to cross-examination, and to specific criticism in the defence closings. All were said to be unreliable for a range of reasons, including their own drug use and the passage of time, and some were accused of being incentivised or of relying on rumour rather than what the defendants had said to them:
(a)Mr McNaughton was challenged by counsel for both appellants. Counsel for Ms Morgan suggested he tried to “tax” Ms Morgan by extorting drugs from her because she had given him a car that turned out to have been stolen and that his account was based on rumours in the Nelson drug community. Counsel established that Mr McNaughton was in custody in September 2016 because of a domestic incident for which he had been denied bail, and knew he was going to prison. He spoke to the police after writing a letter saying he knew something about Ms Harris’s death and seeking help with his charges. He was accused of making up details because he realised he would get no concessions from the police unless he offered them something they did not already know. He was then interviewed and made a statement. Counsel for Mr Baillie suggested that he hoped to be bailed in exchange.
(b)Mr Mosen-Taku was arrested in Nelson in September 2016 and deposed that he spent several weeks in the police cells there before being transferred to Christchurch Men’s Prison. He was held on drugs and rape charges. He denied receiving any incentives and said he had already been denied bail when he spoke to the police. (He was in fact remanded in custody and later acquitted at trial on the rape charge.) Mr Mosen‑Taku knew Mr Baillie and had contact with him in a day room which prisoners share when not in their cells. He said that other prisoners made reference to Mr Baillie facing a murder charge, but no charge had yet been laid at that time. By reference to security footage of the room Mr Mosen-Taku identified other prisoners who were in the room at the time, but they were interviewed and denied hearing such a conversation. It was put to Mr Mosen-Taku that the complainant on the rape charge was a former partner of Mr Baillie.
(c)Ms Fearnley was a drug user. She made a statement long after Ms Harris’s death and was accused of doing so at the instigation of Ms Harris’s son.
(d)Mr Cumming’s cross-examination focused on what was said to be the implausibility of his account and his own drug use at the time. It was suggested that he saw Mr Baillie’s arrest as an opportunity to recover a debt, and that he was familiar with rumours about what had happened to Ms Harris.
(e)Mr Hayes, who had said he approached Mr Baillie because his own name was being bandied about in connection with Ms Harris’s death, was accused of being a fantasist who needed to be the object of attention.
(f)Ms Case-Connor was a drug user and concerned that she might get into trouble for helping Ms Morgan source drugs. Her cross‑examination focused on the impact on her recall her own drug use at the time had.
(g)Mr Harmon, whose evidence against Ms Morgan and Mr Baillie we mentioned at [11] above, was one of the people staying at Ms Morgan’s house. He was a daily drug user. He made a statement to the police on 8 April 2016 but did not sign it until 26 September 2017, and it was suggested he signed it because he had been charged with aggravated robbery in July 2017 and his lawyer negotiated a substantial sentencing discount for his cooperation. It was put to him that his evidence was based on rumour.
(h)Ms Fulcher-Poole was a drug user, and it appears a supplier, who dealt with Ms Harris. Ms Fulcher-Poole was also a methadone user. It was put to her that she was repeating rumours she had heard from others.
In her summing-up, Thomas J took the jury through the charges then summarised the forensic evidence of the pathologists and ESR witnesses, and the parties’ cases on cause of death. She drew attention to circumstantial evidence relied on by both sides about the events leading up to, on and around 7 February 2016. She took the jury through the timeline evidenced by the text messages in some detail, noting what the parties said about them.
The Judge reminded the jury that, as she had said when the relevant evidence was called, the evidence from witnesses as to what the defendants allegedly said to them after Ms Harris’s death could be used only when considering the case against the defendant who allegedly made that statement. She then turned to statements the appellants allegedly made to other people. She dealt with the two appellants separately.
First the Judge dealt with each of the witnesses who deposed to admissions made by Mr Baillie. After summarising the evidence of Mr Mosen-Taku and Mr McNaughton, the Judge gave a warning to the jury about what Mr Baillie allegedly said to them when they were all being held in the Nelson police station:
[228] You need to treat this evidence with caution. You need to look at it carefully to determine whether Mr Mosen-Taku and Mr McNaughton are reliable and credible. Consider these factors:
•Any incentives they may have been offered or advantages they thought they might receive if they gave evidence against Mr Baillie. This might include assistance with bail, a shorter sentence or any other advantage. If you think there were any such incentives or advantages, then you need to treat the particular witness’ evidence with particular caution because he would have had an incentive to give evidence which may be untrue.
• You need to be satisfied any statements Mr Baillie allegedly made were genuine and not some form of bragging or showing off.
• The statements were obviously not recorded in writing.
• And you need to consider whether Mr McNaughton and/or Mr Mosen-Taku may have obtained the details from some other source, for example, they were repeating gossip.
[229] It is entirely for you how you treat this evidence. You can accept all of it, you can reject all of it, or you can accept some of it or reject some of it. If you do accept some or all of Mr McNaughton’s evidence and/or Mr Mosen‑Taku’s evidence, you need to consider carefully the weight you give to that evidence in the context of all the evidence you have heard. So please bear in mind the need for caution in relation to this evidence.
The Judge separately summarised the evidence of the witnesses who deposed to admissions made by Ms Morgan. She gave a warning in relation to the evidence of Mr Harmon, reminding the jury of the evidence about his sentence discount and directing them to approach his evidence with “particular caution” in that case. She said that:
[253] Similar to the warning I gave you in respect of Mr Mosen-Taku and Mr McNaughton, you need to consider any incentive Mr Harmon may have been offered or advantages he thought he would receive if he gave evidence against Ms Morgan, including a shorter sentence. And if you think there were such incentives, then you need to treat his evidence with particular caution because he may have had an incentive to give evidence which was untrue.
When dealing with Mr McNaughton’s evidence of admissions made by Ms Morgan, the Judge reminded the jury of the warning she had given them about his evidence of admissions made by Mr Baillie and directed that they should treat the evidence with great care.
The Judge did not give a specific reliability warning about evidence of other witnesses who deposed to admissions by Mr Baillie or Ms Morgan. She did remind the jury that the defence contended the witnesses were unreliable, that the statements were never made or were the product of gossip and speculation, and that some of the witnesses had motives to lie or some sort of incentive from the police to do so. She summarised the defence criticisms in relation to each of them.
The Judge reminded the jury that, as she had said when Ms Morgan’s police interviews were played, Ms Morgan’s statements to the police were relevant only to her trial and nothing she said there was evidence to be considered in relation to Mr Baillie. Nor was Mr Baillie’s statement admissible against Ms Morgan.
The Judge summarised Ms Morgan’s statements to the police and gave the jury a lies direction:
[287] Now you heard the Crown say that Ms Morgan lied a number of times in her various interviews with the police. For example, about the last time she had seen Ms Harris and whether she had gone to Ms Harris’ place that weekend, whether she had ever been into Ms Harris’s spare room, and that she claimed she did not know what Rinse was.
[288] If you are satisfied Ms Morgan lied about these or any other matters, the fact she lied is something you can take into account, just like all the other evidence. But it is important not to think that just because she lied about where she was, for example, that she is necessarily guilty. People in such circumstances can lie for reasons other than because they are guilty. It can be to protect someone, to cover up something, or because they panicked and said something stupid. It is over to you what weight you place on any lie, but consider it carefully before placing weight on it, and remember it is just one piece of evidence to consider in deciding if the Crown has proved its case.
After the summing-up, Mr Mansfield, counsel for Mr Braillie, invited the Judge to give a direction under s 122(2)(b) of the Evidence Act 2006, which provides that a trial judge must consider giving such a direction where an admission by the defendant is the only evidence implicating that defendant. Mr Mansfield submitted that a direction was required for all the alleged admissions by Mr Baillie. The Judge declined to do so, stating that she considered there was other evidence implicating him.
The conviction appeals
Both appellants contended before us that the Judge’s directions on incentivised confession evidence were inadequate and occasioned a miscarriage of justice. Counsel submitted that the Supreme Court judgments in W (SC38/2019) and Roigard demonstrate the need for very strong directions to dissuade juries from making the “fundamental error” of attributing the behaviour of a witness to dispositional factors, such as the desire to tell the truth, rather than situational ones, such as an incentive to give false evidence. A jury must be told of this risk and warned to guard against it; simply noting that the witness had an incentive is not enough. A court should also be aware that the benefits to a witness, such as a sentence reduction or favourable parole outcome, may not necessarily be obvious to a jury. And a court should be conscious of the risk, recognised in W (SC38/2019), that juries may not follow instructions to exercise care when considering such evidence.[5]
[5]W (SC38/2019) v R, above n 1, at [84].
Counsel submitted that such a direction should not be limited to “cell-mate confession” evidence. The Supreme Court left open the approach to other witnesses who may be incentivised in some way by the criminal justice system, perhaps simply by having a better relationship with the police. That kind of incentive arguably extended to the other admissions witnesses, each of whom had their own agenda and bias. All were methamphetamine users and most had previous convictions. The police knew of their activities and they preferred that the police not take an interest in them. All of this should have been explained to the jury.
Further, counsel submitted, the Judge ought to have directed the jury to consider whether rumours were the source of the information that the witnesses obtained, and whether there was any independent corroboration of their accounts. The jury ought to have been cautioned against treating the accounts of the incentivised witnesses as mutually supportive and relying on the weight of numbers; we take this to be a submission that the witnesses’ evidence was not independent but ultimately had the same source in rumours in the Nelson drug community.
For Mr Baillie, Mr Mansfield argued that the judge was wrong to refuse to make a s 122(2)(b) direction. Counsel submitted that there is no evidence implicating Mr Baillie beyond the admissions evidence. Peripheral evidence such as the type identified by the Judge — the text messages, his actions in removing Ms Harris’s daughter, and the quantities of methamphetamine he had afterwards — will always be present, and Parliament must be taken to have intended that a judge should focus on the primary evidence. Counsel submitted that the texts referred to at [12]–[13] above do not indicate knowledge of or involvement in Ms Harris’s death; they are readily explicable by the drug-involved lifestyle that the appellants lived. Mr Mansfield emphasised that the polling data showed Mr Baillie was never at Ms Harris’s address at any relevant time. It cannot reasonably be inferred that Mr Baillie intentionally isolated Ms Harris’s daughter for four days. She could have returned home had she wanted to. The evidence that Mr Baillie possessed methamphetamine as a reward for killing Ms Harris is very limited; he regularly consumed that drug and any others available to him, and regularly shared them with others. The evidence that he supplied GHB to others before Ms Harris died is not related to her death, and in any event the evidence at trial tends to suggest that the GHB found in her body was caused through post-mortem production.
For Ms Morgan, Ms Aickin submitted that the Judge erred by failing to warn the jury specifically about the inadmissibility against Ms Morgan of statements made by Mr McNaughton and Mr Mosen-Taku at the Nelson police station. Their statements implicated Ms Morgan.
Counsel also argued that there was insufficient evidence adduced at trial to support the conviction; the jury could not find to the requisite standard that Mr Baillie deliberately suffocated Ms Harris and that Ms Morgan administered a fatal overdose or encouraged or assisted Mr Baillie to kill.
Counsel submitted that the lies direction was unfairly prejudicial to Ms Morgan because it created an impression that the only inference to be drawn from her inconsistencies in her police interviews was that she was lying. She may have been mistaken or telling the truth in part.
Counsel also argued that the Judge’s direction regarding the admissibility of co-defendants statements were insufficient and confusing, highlighting a passage in which the Judge said that “while the out-of-court statements by one defendant are inadmissible against the other, the Crown says their alleged admissions were to similar effect”. This was said to invite the jury to consider the out-of-court statements made by each defendant as evidence against the other.
Evidence sufficient if admissions accepted
We can deal very shortly with the contention that there was not sufficient evidence to convict Ms Morgan. There was, if evidence of the admissions she made to others was admissible against her. If accepted along with the circumstantial evidence, that evidence sufficiently established how Ms Harris died, who killed her, and why.
Incentivised witnesses
Section 122 of the Evidence Act provides:
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:
(a)hearsay evidence:
(b)evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d)evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:
(e)evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(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.
(5)If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6)This section does not affect any other power of the Judge to warn or inform the jury.
Admissibility of prison informant and other incentivised secondary confession evidence
There was no pre-trial challenge to the admissibility of the admissions made by Mr Baillie when in police custody, or the evidence of admissions made to other incentivised witnesses. In Hudson v R the Supreme Court had held that “prison inmate” evidence requires careful scrutiny but is not presumptively inadmissible under the scheme of the Evidence Act, which rather points to a legislative intention that reliability decisions ought to be made by a properly cautioned jury.[6] The Court in that case declined to adopt a standard form direction broadly along the lines of that adopted for identification evidence, reasoning that the Evidence Act did not require it and in any event the terms of the direction must always be tailored to the facts of the case.[7]
[6]Hudson v R [2011] NZSC 51, [2011] 3 NZLR 289 at [35]–[36].
[7]At [41].
In W (SC38/2019), which was delivered on 14 September 2020, the Supreme Court declined to revisit Hudson.[8] W (SC38/2019) was a pre‑trial admissibility decision.[9] The Court considered admissibility through a different lens which had been foreshadowed in Hudson: whether “prison informant” evidence was so inherently unreliable, and hence lacking in probative value, that it ought to be excluded under s 8 of the Evidence Act.[10] Rejecting this ambitious argument, the majority noted that a reliability warning is not mandatory and no particular form of words is prescribed under s 122, in contrast to the warning required for visual or voice identification evidence in s 126.[11]
[8]W (SC38/2019) v R, above n 1, at [101], citing the leave judgment in W (SC38/2019) v R [2019] NZSC 64 at [2]. In Roigard v R, which was delivered at the same time as W (SC38/2019) v R, the Supreme Court adopted the framework developed in W (SC38/2019) v R: Roigard v R, above n 2, at [108]–[111].
[9]The appeal in Roigard v R followed conviction.
[10]Hudson v R, above n 6, at [36].
[11]W (SC38/2019) v R, above n 1, at [52] per Glazebrook, O’Regan and Ellen France JJ.
The majority briefly surveyed the position in cognate jurisdictions and concluded that under the statutory scheme the trial judge has a gatekeeping role in assessing the probative value of prison informant evidence.[12] Such evidence requires “careful scrutiny” under s 8.[13] Generally, the judge should not adopt any artificial limits such as a requirement that the evidence be taken at its highest; all its weaknesses may be considered. The majority instanced inconsistencies, chain of evidence difficulties, “circumstances in which the evidence arises” and inherent implausibility, along with incentives to lie.[14] Exclusion need not be exceptional. However, the exercise should not become a mini trial and it must be borne in mind that it can be difficult to assess evidence of this kind before trial, without the full context.[15] The constitutional role of the jury as fact-finder must be respected, and clear judicial directions should be used to overcome the generic risk of unfair prejudice.[16]
[12]At [65]–[69].
[13]At [58] and [86], citing Hudson v R, above n 6, at [33] and [36].
[14]At [70].
[15]At [71] and [88(d)].
[16]At [88(e)].
Focusing on the witness as prison informant, the majority held that the judge will consider any applicable concerns about the witness’s credibility as an informant, any incentives or expectations of preference at play, and the likely weight to be attached to the evidence.[17] The majority undertook a survey of social sciences literature pointing to a linkage between prison informant evidence and miscarriages of justice and held that concerns of the sort raised in the literature surveyed may be considered when a court is deciding admissibility.[18]
[17]At [88(c)].
[18]At [75]–[85] and [88(c)].
The majority recognised a risk that juries will give unjustified weight to prison informant evidence, referring to studies indicating that juries find prisoner informant evidence similarly persuasive to primary confessions. Some studies, though not all, demonstrate that jurors are vulnerable to the so-called “fundamental attribution error”, meaning:[19]
… the tendency to attribute the behaviour of others (here, the witness) to dispositional factors such as the desire to be a good person rather than situational factors like the receipt of an incentive for the evidence to be given.
The majority noted that there is limited evidence as to whether judicial directions, or other additional information such as expert evidence, can protect against the problem of jurors finding incentivised witnesses unduly reliable.[20]
[19]At [80] (footnote omitted).
[20]At [84]–[85].
The majority limited the heightened “careful scrutiny” requirement to incentivised witnesses who are prison informants, expressly declining to extend it to other witnesses who experience incentives associated with the criminal justice system.[21]
[21]At [86]–[87] and n 139.
We observe that most of the witnesses whose evidence was in issue in W (SC38/2019) gave evidence of statements made while they were in prison with one of the defendants. Section 122(2)(d) of the Evidence Act accordingly applied to them. However, most were not what the majority called “classic” prison informants, in that while they had a history of dishonesty there was no evidence they were incentivised to give evidence for the Crown or they deposed to statements made when they were not in prison.[22] The majority held that witnesses who were not incentivised or not in prison at the time should be assessed in the usual way, not subjected to heightened scrutiny.[23] The witnesses in Roigard were “classic” prison informants who deposed to admissions made while they were held on remand with the defendant and received a sentence discount for their assistance.[24]
[22]At [103] and [115].
[23]At [103].
[24]Roigard v R, above n 2, at [57].
The minority, Winkelmann CJ and Williams J, adopted the majority’s “careful scrutiny” requirement but would have extended it to “incentivised secondary confession evidence”, meaning the evidence of witnesses who were not involved in the offending but depose to confessions made to them by the defendant and who give evidence in return for some advantage or benefit that operates within the criminal justice context.[25] Criminal justice incentives are not confined to witnesses who are in custody. The minority added that the incentives are powerful but may be loose or informal and hence difficult to detect and evaluate.[26] Because the Crown controls criminal justice incentives, “the imbalance between the Crown and the defence is acute” when the Crown deploys such witnesses.[27] The minority agreed with the majority that there is a need for a system for checking the reliability of prison informant evidence, which is easily manufactured but difficult to refute.[28]
[25]W (SC38/2019) v R, above n 1, at [201] and [253] per Winkelmann CJ and Williams J. For the minority’s framework, see [254]–[270].
[26]At [202].
[27]At [214].
[28]At [214] and [218].
The minority also proposed a framework to guide trial judges’ scrutiny under s 8.[29] The framework encompassed: the significance of the evidence to a matter at issue, indications the evidence is unreliable or false, the nature and timing of any incentives and the jeopardy faced by the witness at the time the incentives are given, whether the witness had other motives to lie or a record of lying, other circumstances relevant to the collection of the evidence (such as any risk that the witness obtained details from interaction with the police), and the risk of collateral and cumulative prejudice. The last of these referred to any risk that a jury may think multiple incentivised witnesses corroborate one another, when if properly assessed they do not.[30]
[29]At [254]–[270]. The minority also differed on the admissibility of some of the specific evidence: at [285] and [404].
[30]At [267].
The majority held that this framework should not be used.[31] In Roigard the same majority considered that the minority’s use of the framework in that case had the effect of requiring independent corroboration of the informant evidence, which was not appropriate, and further required a court to consider whether the evidence had been constructed by the witness to fit facts they had acquired from other sources. The majority saw these as matters for trial and cross-examination.[32]
Reliability directions for prison informant evidence
[31]At [87] per Glazebrook, O’Regan and Ellen JJ.
[32]Roigard v R, above n 2, at [54] per Glazebrook, O’Regan and Ellen JJ.
Counsel for the appellants in this appeal did not argue that the evidence of the two cellmates, Mr McNaughton and Mr Mosen-Taku, or that of the other admissions witnesses, was inadmissible in light of the Supreme Court judgment in W (SC38/2019). As noted, they argued rather that the trial Judge’s directions were inadequate in light of what the Supreme Court said in W (SC38/2019).
For the Crown, Mr Carruthers submitted that W (SC38/2019) and Roigard deal with the admissibility of cellmate confession evidence generally, and admissibility is not in issue here. The considerations that may inform an admissibility assessment should not be elevated automatically to factors that juries must be warned about. Reliability warnings are discretionary and need not follow a formula. To hold otherwise would be to fetter the statutory discretion vested in trial judges. The adequacy of a warning cannot be assessed in isolation; it must be examined against the summing-up as a whole and may take into account the extent to which any defence concerns about the evidence were made apparent to the jury.
We do not accept that the Supreme Court decisions are relevant only to the admissibility of prison informant evidence. We hold rather that the considerations justifying careful scrutiny of prison informant evidence may also call for judicial directions, where prison informants are called at trial. That must be so, since one of those considerations was the extent to which careful judicial directions can eliminate or mitigate the risk that a jury will too readily find prison informant evidence reliable.[33] We have noted that the majority in W (SC38/2019) rejected the admissibility framework proposed by the minority on the ground, in part, that the matters addressed there should be dealt with at trial.[34] Scrutiny at trial should extend, where and to the extent that is appropriate, to the considerations that the majority found relevant to the threshold assessment of reliability.
[33]W (SC38/2019) v R, above n 1, at [64]. See also at [88(e)], cited in Roigard v R, above n 2, at [53].
[34]W (SC38/2019) v R, above n 1, at [87].
It bears repetition that s 122 does not require that a court single out prison informants or distinguish them from other incentivised witnesses when considering a reliability direction. However, the Supreme Court has distinguished prison informants as a class, requiring “careful scrutiny” of their evidence.[35] For such witnesses a trial judge should consider whether to direct the jury:
(a)to consider any promises or expectations of preference that may operate on the witness, and how powerful any such incentive may be in the witness’s circumstances;
(b)to consider whether any disclosure to the police by the witness was delayed or was connected in time to an incentive;
(c)to pay attention to any identified weaknesses in the evidence, such as (by way of example) inherent implausibility and inconsistency with other evidence that the jury accepts;
(d)to be aware of any risk that details in the informant’s evidence may have been acquired not from the defendant but through the informant’s involvement in the police investigation or dealings with other witnesses. Where such risk exists, it may be appropriate to caution against treating the accounts of several such witnesses as mutually supportive;
(e)to be aware of a risk that juries may mistakenly attribute the evidence of a prison informant to a desire to tell the truth rather than an incentive to give evidence that may gain the witness some advantage within the criminal justice system; and
(f)that the ultimate assessment of reliability is theirs to make, but they must exercise caution when deciding whether to accept the evidence. Consistent with W (SC38/2019), it may be appropriate in some cases to warn the jury of a risk that prison informant evidence may lead to miscarriages of justice.[36]
[35]At [58] and [86]–[87], citing Hudson v R, above n 6, at [33].
[36]See [76]–[79].
It remains the case that directions are not mandatory. The Supreme Court envisaged in Hudson that in practice the evidence of prison informants will normally call for a direction, but as the Court was at pains to point out, s 122 requires only that judges consider giving a direction and any direction that is given should be tailored to the circumstances of the case.[37] In particular, there is no general requirement that juries be warned that prison informant evidence may lead to miscarriages of justice.[38] The point we are making is that it is permissible for a trial judge to give the directions we have mentioned, in appropriately strong terms if the circumstances warrant. Indeed, as the majority stated in W (SC38/2019), it may be appropriate to direct the jury to ignore the evidence of a witness whom the judge considers unreliable.[39]
The reliability warning for the two cellmates of Mr Baillie
[37]Hudson v R, above n 6, at [41].
[38]See generally at [40]–[43].
[39]W (SC38/2019) v R, above n 1, at [89].
We accept that Mr McNaughton and Mr Mosen-Taku should be treated as prison informants in connection with the statements they made while in police custody. We do not think it matters that neither was in prison at the time they made their statements. Mr McNaughton had just been denied bail and was being remanded to Corrections custody. He sought concessions from the police in return for his statement. Mr Mosen-Taku was being held in custody and faced a long remand until trial, but he denied that he was offered any incentive for his statement. He said that he hoped for bail, but later that his first application had been denied by the time he made his statement. It does not appear that any police witness was questioned about an inducement. We are prepared to accept for present purposes that the timing of both witnesses’ statements, relative to their charges, provides some circumstantial evidence of an incentive and the jury might treat them as prison informants.[40]
[40]The Supreme Court’s definition appears to require both that the witness be in prison when his or her disclosure is made and that he or she has been shown to be subject to a criminal justice incentive at that time.
As noted at [29] above, the Judge did give the jury a reliability warning in relation to both men. It should be considered with her summary of the defence criticisms of their evidence. She told the jury that their evidence must be treated with caution, and with “particular caution” if they thought the witnesses had been offered incentives or believed they might receive advantages. She reminded the jury that the statements were not recorded and might amount to bragging, and told them to consider whether the witnesses might have obtained details from some other source such as gossip. She told the jury that if they accepted any of the evidence they should consider carefully the weight they gave to it. When dealing with Ms Morgan’s case the Judge repeated the warning for Mr McNaughton and said the jury must treat his evidence with great care.
The Judge need not have gone further on the law as it stood at the time, but the question is what was required having regard to the law as since stated by the Supreme Court.
We have evaluated against the list at [59] above the directions that were given in this case for the evidence of Mr McNaughton and Mr Mosen-Taku.[41] The Judge did not specifically list the incentives or ask the jury to consider how powerful they might be in the witnesses’ circumstances, but she did instance assistance with bail and a shorter sentence and tell the jury to exercise “particular caution” if they found there were any incentives. She did not tell the jury to consider the timing of disclosures relative to any incentives, but she did remind them that Mr McNaughton had expressly offered to trade information for leniency and she mentioned what Mr Mansfield had said about timing in Mr Mosen-Taku’s case. She referred to other weaknesses in the evidence, including the absence of any corroboration from other people in custody at the same time, and told the jury to consider whether the witnesses might have obtained their information from sources other than the appellants. She did not warn them of a generic risk that jurors will think prison informants give evidence from sincere motives. But she did repeatedly direct the jury to exercise caution when considering the reliability of the evidence. In our view these directions were adequate.
The reliability warning for Mr Harmon
[41]It will be recalled that the Judge told the jury to apply her directions regarding Mr McNaughton’s evidence to both appellants. See above at [32].
We have referred to the evidence of Mr Harmon at [11] and [26(g)] above. He gave evidence against both appellants. He was not a “classic” prison informant, because he was not in custody when he made his statement in April 2016. The prosecutor emphasised that fact. However, it appears from the evidence that he was in custody when he agreed to sign the statement in September 2017. He had, and consciously exploited, a powerful incentive to assist the Crown; it secured him an immediate and substantial sentence reduction. We accept that a reliability warning was required in his case.
The Judge did give the jury a warning with respect to Mr Harmon’s evidence. We have referred to it at [30] above. It was given when she was dealing with Ms Morgan’s case, although she referred to both appellants in that part of the summing-up. The warning was less extensive than that given for Mr McNaughton and Mr Mosen-Taku, but it referred the jury to that warning. The Judge had already summarised what counsel had to say about the incentive. We consider that the nature and value of the incentive was clearly identified, along with its timing. The Judge did not remind the jury that Mr Harmon may have sourced his information from gossip, but that may have been because he made his statement at an early stage. She did not warn them of a risk that jurors may think the evidence was given from sincere motives, but she did tell them to use particular caution. We find the direction adequate.
Was a reliability warning required for other secondary admissions witnesses?
Mr Mansfield argued that a reliability warning was also required for Ms Fearnley, Mr Cumming and Mr Hayes, whose evidence was variously inconsistent and implausible, affected by drug use and memory problems, and influenced by incentives of their own. He extended the criticism generally to all the secondary admissions witnesses who were drug users with conviction histories and a keen interest in not getting offside with the police. The Judge ought to have warned the jury against the risk that the admissions witnesses might appear to corroborate one another when in fact their evidence was mutually inconsistent and based on gossip they had shared. Given the risk that juries will too readily accept such evidence and pay too little attention to what judges say about it, the directions ought to have been given in strong terms.
The Judge did not give a reliability warning for these witnesses, but she did draw the jury’s attention to what counsel said about them and she concluded her discussion of the secondary admissions witnesses by saying:
[258] So in respect of all these admissions, you need to think very carefully about relying on them. Think about any motives or incentives to anyone to give the evidence and think carefully about their reliability and credibility. It is entirely a matter for you whether you accept the evidence, reject it, accept parts of it or reject parts of it. But please bear in mind the need for caution.
We do not take up Mr Mansfield’s invitation to extend the class of incentivised secondary admissions witnesses whose evidence demands careful scrutiny. That issue should be reserved for another day and more extensive argument. We do make two points about it. The first is that there are difficulties in defining the class to be subjected to careful scrutiny. Even the definition of a “prison informant” is open to debate, as Mr Harmon’s example illustrates, and the wider the class the more extensive the range of incentives and more debateable their effects. The second is that, for purposes of this case at least, it is not necessary to define a wider class. We accept that considerations identified in the judgments in W (SC38/2019) and Roigard may sometimes affect secondary admissions witnesses who are not prison informants, and where applicable they may call for a reliability direction under s 122, on a case‑by‑case basis.
We consider that the directions adequately drew to the jury’s attention the reliability issues affecting the other secondary admissions witnesses in this case. None of them was incentivised by the State in the powerful way that Mr McNaughton, Mr Mosen-Taku and Mr Harmon were. We do not consider that a specific warning was required against treating the witnesses as mutually supportive; the jury were made well aware that each witness may have relied on information shared in the Nelson drug community during the long period before the appellants were charged. In these circumstances it was not necessary to warn against the so-called “fundamental attribution error”.[42]
Crown case based on Mr Baillie’s statements
[42]W (SC38/2019) v R, above n 1, at [80].
We have referred to Mr Mansfield’s submissions on this point at [39] above. The argument rests on the proposition that, his own admissions aside, there was no reliable evidence against Mr Baillie and, that being so, the Judge ought to have given a warning under s 122(2)(b) of the Evidence Act.
As noted at [35] above, the Judge considered giving such a warning but concluded that there was evidence to implicate Mr Baillie independent of his admissions. She appears to have accepted that this evidence comprised the texts, the GHB (presumably meaning the evidence about Mr Baillie administering it to others), Ms Harris’s daughter’s account of being kept with the appellants, and the quantities of methamphetamine in Mr Baillie’s possession afterwards. Mr Mansfield’s argument was that the Judge was wrong in her characterisation of this evidence, and hence mistaken in her conclusion that s 122(2)(b) was inapplicable.
Section 122(2)(b) applies when a defendant’s statement “is the only evidence implicating the defendant”. It plainly supposes that a confession may be unreliable. Its presence in the Evidence Act can be traced to several Law Commission reports.[43] The Commission ultimately recommended that there be provision for such a warning because of the real possibility that defendants may confess to crimes they did not commit.[44]
[43]Law Commission Evidence Law: Principles For Reform (NZLC PP13, 1991) at [63]; Law Commission Criminal Evidence: Police Questioning (NZLC PP21, 1992) at [149]; and Law Commission Evidence: Reform of the Law (NZLC R55, 1999) at [474].
[44]Law Commission Evidence: Reform of the Law, above n 43, at [474].
At one time the common law was suspicious of confessions. As Blackstone memorably put it:[45]
… even in cases of felony at the common law, they are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other evidence.
[45]William Blackstone Commentaries on the Laws of England, in Four Books (Thomas B. Wait & Co, Portland, 1807) at 356.
By the time that the Court of Criminal Appeal decided R v Baldry in 1852, the common law had come to recognise that a confession which is “well proved”[46] is the best evidence, but it must be perfectly voluntary and would be vitiated by any inducement or threat held out by a person in authority.[47] A confession so tainted was not because it was presumed to be false, but because it was thought dangerous to leave such evidence to the jury.[48]
[46]R v Baldry (1852) 16 JP 276, 169 ER 568 at [446] per Erle J, as cited in Rupert Cross (ed) Evidence (New Zealand ed, Butterworths, Wellington, 1963) at 511.
[47]R v Baldry, above n 46, at [445]–[446]. The alleged threat in Baldry was a constable’s advice that “he need not say anything to criminate himself, what he did say would be taken down and used as evidence against him”: at [444].
[48]At [442] and [446].
In New Zealand, legislation has long modified the common law rule. Section 20 of the Evidence Act 1908 provided that an induced confession was admissible if the court was satisfied that the means by which it was obtained were not in fact likely to cause an untrue admission of guilt to be made. Rules to broadly similar effect are now found in ss 27–30 of the Evidence Act 2006. The presence of s 122(2)(b) in the Evidence Act 2006 is recognition that the finder of fact may need a reliability warning although the statement concerned is admissible under those rules. To that extent, the legislation appears to reflect a concern, traceable to the common law, that juries may too readily assume that a confession must be reliable.[49]
[49]Cross, above n 46, at 511.
The statutory language is not confined to statements which may have been induced by someone in authority.[50] It applies to defendants’ statements that are unreliable for any reason. A statement’s unreliability may be a product of the circumstances in which it was made, or of some attribute of the person to whom it was made.[51]
[50]Law Commission Evidence: Reform of the Law, above n 43, at [94].
[51]Law Commission Criminal Evidence: Police Questioning, above n 43, at [25]–[27]; Law Commission Evidence: Reform of the Law, above n 43, at [102]–[103].
Where the person to whom the statement was made has an incentive or motive of their own to give false evidence, a reliability warning under s 122(2)(c) may be required. In this case the incentivised secondary admissions witnesses were the source of the risk that the reported statements of Mr Baillie might be unreliable. We have held that the warnings given regarding the incentivised secondary admissions witnesses in this case were adequate.
A warning under s 122(2)(b) might still be appropriate if Mr Baillie’s reported statements were indeed the only evidence implicating him. There might remain a risk that the jury would too readily accept that his admissions must be true, or some reason, other than their incentives, to doubt the reliability of the witnesses’ accounts. But we think the Judge was right to conclude that the circumstantial evidence she mentioned implicated Mr Baillie in the murder, such that s 122(2)(b) was not engaged. In our view the text messages we have mentioned at [10], [12] and [13] above implicate him, suggesting knowledge and encouragement of what Ms Morgan was doing. We add that Mr Carruthers submitted that the evidence implicating Mr Baillie was more extensive than that listed by the Judge. The Judge might also have mentioned Mr Baillie’s relationship with Ms Brookes and his siding with her against Ms Harris, his agreeing with Ms Morgan to go to Ms Brookes’s house afterwards, and his visiting and hugging Ms Brookes on learning Ms Harris’s body had been found. Some of this evidence was reported by an admissions witness but it is evidence of conduct rather than a statement. We agree generally that this evidence also tended to implicate Mr Baillie.
Co-defendant’s statements
We can dispose of this ground of appeal shortly. We do not agree that the Judge’s directions allowed the jury to rely on each defendant’s statements to the police when considering the case against the other defendant. On the contrary, the Judge made clear that the jury could not do so. Nor did she allow the jury to consider statements made by one defendant to secondary admissions witnesses as evidence against the other defendant. She did not repeat that warning when dealing with the statements made by Mr McNaughton and Mr Mosen-Taku at the Nelson police station, but she did deal with those witnesses on a defendant-by-defendant basis.
Lies direction
We have referred to Ms Aickin’s argument on this point at [42] above, and to the Judge’s direction at [34] above. We do not think there is anything in this ground of appeal. The direction was in orthodox terms. We do not think it conveyed the impression that Ms Morgan was in fact lying, or that the jury must find she was lying about either everything or nothing.
The sentencing
The Judge recorded at sentencing that she was satisfied beyond reasonable doubt that the appellants were:[52]
… both involved in a plan to kill Ms Harris in exchange for money or drugs from Ms Brookes and that the plan originally involved an attempt to induce an overdose using a combination of drugs.
The Judge recounted the evidence on which she relied. She found that both appellants exploited their relationships of trust with Ms Harris.[53] She found that Ms Harris was unconscious and in critical condition when Mr Baillie suffocated her with a pillow.[54]
[52]Sentencing notes, above n 3, at [4].
[53]At [14].
[54]At [15(c)–(d)].
The Judge referred to the victim impact statements, noting that they described loss, confusion and betrayal.[55]
[55]At [21].
Turning to personal circumstances, the Judge noted that Mr Baillie was 28 years of age at sentencing, with a busy criminal history for mostly low‑level violence and traffic offences.[56] She described his background:
[23] The pre-sentence report describes your upbringing around a lifestyle of drugs and violence. Your father was a drug dealer, your mother an alcoholic. Both are now deceased. You told the probation officer that you were physically and emotionally abused by your father. Engaging in illegal behaviour became a normalised activity for you from a young age. You received your first conviction when you were only 17 years old. You are also affiliated with the Nomads gang.
[24] You began using cannabis at age 13 and started drinking alcohol and using methamphetamine at age 17. You report using methamphetamine daily around the time of the murder and suffering withdrawal symptoms. You told the probation officer you sold drugs to support your own use. You also suffer from depression as a result of the death of your father.
[25] The probation officer describes you as displaying limited empathy for the victim’s family and little insight into the feelings they would have from losing a loved one. The probation officer notes you continue to maintain your innocence and could not identify any remorse for your offending. The report assesses you at high risk of re-offending and a high risk of harm to others.
[26] The cultural report provides further details of your tragic upbringing, including a traumatic incident when you witnessed a dreadful episode involving your mother when you were only six to eight years old. Your father, who is described in the report as a “career criminal”, is said to have “actively coached” you in illegal behaviour and encouraged you to have ready access to weapons at all times. It is evident you were brought up in poverty, for instance you would sometimes go to school hungry. Your parents were both absent from your life at times, your father in prison, your mother in rehabilitation. There is also reference in the report to a period of your childhood where a cousin, who had been tasked with your care, was using your family home as a brothel.
[27] When you were 13 years old, your father began manufacturing methamphetamine at your home address. It is clear from the cultural report your father was a role model for you, although not a positive one. He died in a motor vehicle accident that occurred when he was being pursued by the police in 2014. Your mother died from the effects of alcohol abuse a year later. Your father’s death had a profound effect on your state of mind.
[56]At [22].
Ms Morgan was 32 years of age at sentencing, with four children. She had 28 previous convictions mostly for methamphetamine dealing, having become a very regular user of that drug:
[30] You left school at 15 with no formal qualifications and you used to consume methamphetamine on a daily basis. You apparently started consuming drugs after the breakdown of your relationship with your ex‑husband. You admit to dealing in methamphetamine for your own financial gain. You expressed no remorse about this, justifying your behaviour by saying if people do not buy their drugs from you, they will buy them from someone else. However, you have said you never wish to be involved in “that world” again and you have recently engaged in the drug and alcohol programme while in prison, behaving well since having been in custody.
The Judge found that the offending fell squarely within s 104(1)(b) of the Sentencing Act; it was carried out under an arrangement for money or something else of value, such as the methamphetamine they were to receive, and sufficient thought and preparation went into it to meet the requirement for calculated planning.[57] Further, murdering someone for money and drugs necessarily demonstrates the high level of callousness needed to engage s 104(1)(e).[58] In Mr Baillie’s case the degree of callousness was increased by the fact that Ms Harris was family.[59] She did not accept that the method of killing was especially callous.[60]
[57]At [40].
[58]At [41].
[59]At [42].
[60]At [44].
The Judge accordingly concluded that, compared to the standard range of murders, an MPI of 17 years was appropriate in this case. That being so, it was unnecessary to consider whether a 17-year minimum would be manifestly unjust in the appellants’ circumstances.[61] She considered whether any distinction ought to be drawn between the two appellants, but concluded that their culpability was not greatly different. Both were involved in planning the murder and in receiving payment for it. They played separate roles, but the reality was that the murder was a joint enterprise.[62] She accordingly imposed MPIs of 17 years on each appellant.[63]
The appeals
[61]At [45].
[62]At [46].
[63]At [47]–[48].
Ms Aickin submitted that the imposition of a 17-year MPI was manifestly excessive, given Ms Morgan’s “lesser role” as alleged by the Crown and her status as a party.
Mr Mansfield argued that s 104 did not apply; the trial judge was wrong to accept evidence, including that of the secondary admissions witnesses, tending to show involvement in advanced planning or any agreement to kill Ms Harris. There is no reliable evidence showing that Mr Baillie had any involvement in premeditation or planning; all that can be said is that he must be taken to have smothered Ms Harris. Nor was there any agreement to accept payment for involvement, and if there was premeditation it did not meet the required threshold. There was no additional element of callousness. For these reasons, he submitted by reference to R v Afamasaga[64] and R v Madams,[65] an MPI of between 10 and 12 years was appropriate for this offending. Turning to personal circumstances, Mr Baillie has relevant previous convictions but the Crown did not seek an uplift for them at sentencing. The cultural report records a dystopian upbringing within a highly criminalised and violent environment in which he was actively coached in lawlessness by his father and abused physically and emotionally. These circumstances ought to reduce the MPI to no more than 10 years.
Was s 104 engaged?
[64]R v Afamasaga [2014] NZHC 2142, MPI of 11 years for Mr Banaba upheld in Afamasaga v R [2015] NZCA 615, (2015) 27 CRNZ 640 at [106].
[65] R v Madams [2016] NZHC 1322.
In R v Harrison a Full Court of the Court of Appeal summarised sentencing methodology for cases in which s 104 is said to apply:[66]
[41] The methodology for sentencing in murder cases where one or more s 104 aggravating factors are present involves a two-step process. The first step is for the Court to consider the degree of culpability of the instant case in relation to that involved in standard cases. In so doing the Court would take into account in the normal way all pertinent aggravating factors including those set out in s 104, together with any mitigating factors. If the first step produces a minimum period of imprisonment of 17 years or more, the minimum term must reflect that assessment.
[42] Where the first step indicates a lesser minimum term being justified, the Court goes on to the second step and considers whether imposing a minimum term of 17 years’ imprisonment would be manifestly unjust. If so, the minimum term must be reassessed to what the Court considers to be justified. This is not, however, a mandate to reduce a 17-year minimum term whenever the Court considers it appropriate to do. The manner in which step two operates was discussed by this Court in Malik v R:
A lesser minimum period would be warranted where the judge decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period. The full range of sentencing criteria in ss 7 to 9 of the Sentencing Act may inform that overall impression, but because the legislative policy in s 104 must be respected, powerful mitigating factors may be needed to displace the 17 year presumption. A guilty plea is not always entitled to significant weight, and the discount required for the plea may be less than it would have been but for s 104, which requires something more than the fact that a particular discount would have been given had the presumption not applied.
[66]R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 (footnotes omitted).
The two-step approach is not mandatory. As this Court explained in Davis v R, in some cases it may be appropriate to decide first whether one of the s 104 categories applies:[67]
[25] To summarise, when s 104 is invoked the sentencer must decide (a) what notional MPI would apply under s 103 and (b) whether a s 104 category applies. If s 104 applies but the notional MPI would be less than 17 years the judge must (c) address manifest injustice. We add that the first two steps need not be followed in that order. The sequence chosen may depend on the category and the circumstances. Some s 104 categories apply unambiguously ― double murder, for example ― while others, of which s 104(1)(e) is the leading example, require judgements of quality and degree.
[67]Davis v R [2019] NZCA 40, [2019] 3 NZLR 43.
That is the approach which the Judge took in this case. It was appropriate because this clearly was a murder for hire. The factual findings that the Judge made to that effect were available to her. The jury must have accepted much of the same evidence to reach the verdicts that they did. Specifically, both appellants were engaged in murder for reward at the instance of Ms Brookes, and both were involved in the planning and preparation necessary to isolate and kill Ms Harris by means of a drug overdose. Ms Morgan’s role was not secondary. She attempted to kill Mr Harris using drugs and became a party to the murder by Mr Baillie only because the quantity she had administered, though capable of killing, did not achieve her object. Both took their reward. These things being so, s 104(1)(b) was engaged. We accept Mr Mansfield’s submission that it added nothing to invoke subs (1)(e), since the Judge’s sole reason for doing so was that a murder for hire is necessarily callous.
What MPI would be imposed but for s 104?
It was then necessary to consider, as the Judge did briefly, what MPI would be imposed but for s 104, by reference to the standard range of murders:[68]
[45] When assessing your culpability compared to the standard range of murders, including your personal circumstances, considering the applicable principles of sentencing and considering the policy that periods over 17 years are generally justified for murders involving the circumstances I have identified as applicable to your offending, I am satisfied a minimum period of imprisonment of 17 years is appropriate for both of you. It is therefore unnecessary to consider whether the imposition of a 17-year period would be manifestly unjust in your circumstances.
[68]Sentencing notes, above n 3.
On appeal, we are asked to find, by reference to addiction, cultural deprivation and personal circumstances, that but for s 104 substantially lesser MPIs would have been adopted for both appellants. As Mr Carruthers acknowledged with respect to the cultural report, the Judge did not appear to take these considerations into account at this step in the sentencing analysis. Mr Carruthers argued that she was nonetheless correct in the result.
It is necessary to bear in mind that in qualifying cases MPIs for murder are set by reference to s 103 of the Sentencing Act, which provides:
103Imposition of minimum period of imprisonment or imprisonment without parole if life imprisonment imposed for murder
(1)If a court sentences an offender convicted of murder to imprisonment for life it must,—
(a)if section 86E(1) does not apply to the conviction,—
(i)order that the offender serve a minimum period of imprisonment under that sentence; or
(ii)if subsection (2A) applies, make an order under that subsection; or
(2)The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
(2A)If the Court that sentences an offender convicted of murder to imprisonment for life is satisfied that no minimum term of imprisonment would be sufficient to satisfy 1 or more of the purposes stated in subsection (2), the court may order that the offender serve the sentence without parole.
(2B)The court may not make an order under subsection (2A) unless the offender was 18 years of age or over at the time that the offender committed the murder.
Having regard to the legislative policy in s 104 toward murder for hire, the circumstances of this offence are sufficiently serious to call for an MPI exceeding 10 years.[69]
[69]See generally R v Williams [2005] 2 NZLR 506 (CA) at [52].
The full register of sentencing purposes, principles and factors may be taken into account when setting an MPI for murder, provided the sentence calculation results in an MPI long enough to satisfy the objectives of accountability, denunciation, deterrence and community protection.
Where they play a causal role in offending, addiction and cultural or social deprivation may reduce the need for deterrence and denunciation, as this Court explained in Zhang v R.[70] After the hearing we invited additional submissions on addiction and its nexus to the offending. In those submissions counsel for both appellants drew our attention to trial evidence illustrating a close connection between the appellants’ drug use and the murder of Ms Harris. They pointed out that the prosecutor relied on the appellants’ heavy methamphetamine use to establish motive and the fact that they were paid in methamphetamine.
[70]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [146] and [159].
Ms Aickin emphasised that Ms Morgan’s conviction history, apart from two driving offences in 2008, all concerns the supply of drugs over the course of 2016. We were supplied with a set of sentencing notes relating to one of those charges. The pre-sentence report in this case records that she began to use cannabis when her marriage failed and began supplying methamphetamine to help a friend, and became addicted.
Mr Mansfield emphasised that it was common ground at trial that Mr Baillie was a significant user of methamphetamine. The sentencing materials point to him being a daily user. But for his addiction he would not have been involved in this crime at all.
For the Crown, Mr Carruthers responded that mitigating factors which might otherwise be compelling may carry little weight where s 104 is engaged; to do otherwise would be to undermine the sentencing regime for qualifying murders. The appellants’ drug use did not play a sufficiently significant role in their offending to warrant a discount; it is true they were rewarded in methamphetamine, but the offending was not impulsive or opportunistic and their ability to exercise rational choice was not overborne. On the contrary, their behaviour was manipulative, calculated and planned.
We accept that, as the pre-sentence reports indicate, both appellants were addicts and heavy users at the time of the offending. Miller and Peters JJ are also prepared to accept that addiction played a causal role and somewhat mitigates culpability, more so in Ms Morgan’s case. The sentencing materials suggest she falls into the category of those whose otherwise pro-social tendencies have been overwhelmed by drug dependence and addiction.[71] It follows that a discount is available.[72] Venning J does not agree on that point. We are agreed that a discount is available for cultural deprivation in Mr Baillie’s case. His whanau background is especially bleak, and his drug offending can be traced without difficulty to the example and training of his father, a career criminal. We accept that deprivation played a causal role.[73]
[71]At [145].
[72]At [147] and [149].
[73]At [159].
As noted at [93] above, the MPI that would be fixed but for s 104 must be sufficient to meet the sentencing objectives in s 103. The appellants acted for reward, which calls strongly for accountability, denunciation and deterrence. It must be borne in mind, though, that the motive was Ms Brookes’s personal vendetta against Ms Harris. The appellants became involved through Mr Baillie’s family connection to Ms Brookes. But for that and their addiction, neither of them would have been involved in such a crime. They acted for reward, but they were paid, in part, in the drug to which they were addicted.
We have considered the cases that counsel cited as comparators,[74] and some others.[75] Their facts are not necessarily similar, but they variously involved comparable circumstances: the murder involved at least one s 104 criterion whose application is not a question of degree (it was committed in the course of a robbery or involved entry to a home); the murderer was a gang enforcer (presumably obtaining some reputational or other benefit from the crime); the murder was committed for drugs (to obtain them or to enforce some obligation); there was a significant element of premeditation; or the murder had some aggravating feature, such as brutality, that was absent in this case. MPIs of substantially less than 17 years were adopted in most of these cases, serious aggravating features notwithstanding. We recognise that in some of the cases we have cited the defendant was able to claim the benefit of a guilty plea discount.
[74]R v Afamasaga (CA), above n 64; R v Madams, above n 65; R v Williams HC Auckland CRI‑2008‑092‑13286, 13 May 2010; R v Harrison [2014] NZHC 2705; Momoisea v R [2019] NZCA 528; and Webber v R [2021] NZCA 133.
[75]R v Pomare [2016] NZHC 1346; R v Ngatai [2020] NZHC 2106; Pulemoana v R [2019] NZCA 293; Marteley v R [2016] NZCA 480; R v Innes [2014] NZHC 2780.
This Court would not distinguish between the appellants but is divided on the outcome. Miller and Peters JJ consider that the appropriate MPI in this case would be 14 years’ imprisonment. That figure takes into account the policy of s 104 along with the appellants’ personal circumstances.
Venning J considers that a 17-year MPI is appropriate. The murder was for hire, and the Judge correctly recognised that the appellants acted in a planned and calculated way. Under s 104 personal circumstances carry less weight than they might otherwise do. If an allowance were made for personal circumstances, the MPI could not be less than 15 and a half years, and it could not be manifestly unjust to impose an MPI of 17 years in the circumstances.
Was a 17-year MPI manifestly excessive?
We have referred at [90] above to Harrison, in which the Court examined the meaning of manifest injustice as that term is variously used in the Sentencing Act.[76] It is a matter of overall impression having regard to the policy of s 104.[77] Miller and Peters JJ have reached the view that the disparity between 14 and 17 years is sufficient, in the circumstances of this case, to amount to manifest injustice.
Disposition
[76]R v Harrison, above n 66.
[77]At [40], citing R v Williams, above n 69, at [67]. See also at [42], citing Malik v R [2015] NZCA 597 at [32].
The appeals against conviction are dismissed.
In accordance with the views of the majority, the appeals against sentence are allowed in part. The MPIs of 17 years for murder are set aside. MPIs of 14 years’ imprisonment are substituted for both appellants.
Solicitors:
Crown Law Office, Wellington for Respondent
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