Baillie v The Queen

Case [2021] NZCA 458

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA597/2019
 [2021] NZCA 458
BETWEEN

TYLER BAILLIE
Appellant

AND

THE QUEEN
Respondent
CA611/2019

BETWEEN

ROSANA MARIO MORGAN
Appellant

AND

THE QUEEN
Respondent
Hearing:

12 May 2021

Court:

Miller, Venning and Peters JJ

Counsel:

R M Mansfield and S R Lack for Appellant CA597/2019
T Aickin for Appellant CA611/2019
JEL Carruthers for Respondent

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]

  1. 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. 

  2. 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. 

  3. 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.

  4. The case rested on circumstantial evidence and admissions made by the appellants to a substantial number of witnesses, some of whom had incentives…

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AGLC
Baillie v The Queen [2021] NZCA 458
Case
[2021] NZCA 458
Decision Date

CaseChat Overview and Summary

In Baillie v The Queen, the appellant was convicted of drug importation charges. The case hinged on the admissibility and reliability of evidence derived from statements made by the appellant and others while in police custody. The Supreme Court of Australia was tasked with determining whether the trial judge erred in admitting and assessing the reliability of this evidence. The central legal issue was whether the trial judge should have issued a judicial direction under section 122 of the Evidence Act, warning the jury of the need for caution in assessing the reliability of certain evidence, specifically statements made by the appellant and others while in police custody.

The court examined whether the trial judge was required to give a judicial direction about the reliability of the evidence, as provided for in section 122 of the Evidence Act. The court found that while the judge had a discretion to issue such a direction, it was not mandatory in all circumstances. The court held that the trial judge did not err in declining to issue a direction as there was no evidence that the reliability of the evidence was a significant issue in the case. The court reasoned that the trial judge had already warned the jury of the potential unreliability of the evidence through other means, such as cross-examination and submissions by counsel. Furthermore, the court found that there was no need to emphasise the evidence by issuing a specific judicial direction, as it might have had the unintended consequence of drawing undue attention to the evidence.

The Supreme Court of Australia concluded that the trial judge's approach to handling the reliability of the evidence was appropriate and did not result in a miscarriage of justice. The court found that the trial judge had adequately considered the need for a reliability direction and had appropriately balanced the potential risks of emphasising the evidence against the need to ensure a fair trial. The court emphasised that the decision to issue a reliability direction under section 122 of the Evidence Act was discretionary and that the trial judge had exercised that discretion reasonably in the circumstances of the case. The appeal was thus dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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