Bennet v The Queen
[2004] NZCA 239
•23 September 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA457/03
THE QUEEN
v
VAUGHN BENNET
Hearing:15 June 2004
Coram:Anderson P
Glazebrook J
Chambers JAppearances: V C Nisbet and D R La Hood for Appellant
T M Gresson and K J Gray for Crown
Judgment:23 September 2004
JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J
Table of Contents
Para No.
Introduction [1]
Background facts [3]
Grounds of appeal [6]
Trial counsel’s alleged failure to follow instructions [8]
Mr Bennet’s submissions [8]
Crown’s submissions [11]
Discussion [21]
Inadmissible evidence [27]
Appellant’s submissions [27]
Crown’s submissions [28]
Discussion [30]
Refreshing the memory [37]
Appellant’s submissions [37]
Crown’s submissions [39]
Discussion [41]
Timeline [53]
Appellant’s submissions [53]
Crown’s submissions [54]
Discussion [55]Appeal against sentence [56]
Sentencing remarks of William Young J [56]
Appellant’s submissions [62]
Crown’s submissions [65]
Discussion [71]
Result [75]Introduction
[1] Mr Bennet was convicted, after a trial in the High Court at Timaru, of supplying a Class B drug, namely methadone, to, and the manslaughter of, Mr Joshua Robinson. He was sentenced on 6 November 2003 to a term of imprisonment of 10 years for the manslaughter (with a concurrent sentence of four years for the supplying of a Class B drug) and to a minimum non-parole period of six years.
[2] Mr Bennet appeals against both his conviction and sentence.
Background facts
[3] On 18 January 2003 Mr Bennet’s son, Shaun, and a friend of his, Johnny Holman-Watson, held a party at Mr Bennet’s home in Timaru. One of the guests was Joshua Robinson, who was 17 years old.
[4] At some stage prior to 7 p.m. Joshua was injected twice with methadone. He was pronounced dead at 11.50 p.m. but there was evidence to suggest that he had been in difficulty well before the ambulance was called at 10.32 p.m. and the St Johns ambulance officer, when he arrived, had found no signs of life. The level of methadone in Joshua’s blood and liver was found to be consistent with a methadone related fatality, particularly for a naïve user of the drug.
[5] The Crown’s case was that Mr Bennet had administered the methadone to Joshua. Mr Bennet’s defence at trial was a complete denial that he had done so.
Grounds of appeal
[6] In relation to the appeal against conviction, Mr Bennet alleges that:
(a)his trial counsel failed to take and/or follow his instructions in certain respects;
(b)there was a receipt of and/or failure to object to inadmissible or prejudicial evidence;
(c)the trial Judge erred in law by allowing a witness, Mr Johnny Holman-Watson, to refresh his memory in the witness box from statements made to the police between 18 and 20 January 2003 and that the Judge allowed inappropriate questioning in relation to those statements; and
(d)the trial Judge erred in law by allowing the prosecution to present a timeline to the jury summarising the evidence in a chronological sequence from the Crown’s perspective.
[7] With regard to the sentence appeal, Mr Bennet contends that the sentence of 10 years was manifestly excessive and that the trial Judge either should not have imposed a minimum non-parole period or that the minimum non-parole period imposed was excessive.
Trial counsel’s alleged failure to follow instructions
Mr Bennet’s submissions
[8] Mr Bennet filed an affidavit for this appeal alleging that his trial counsel, Mr Ruth, conducted the trial in a manner whereby he made little reference to Mr Bennet and paid little, if any, regard to his instructions. Mr Bennet specified in his affidavit a number of specific instances of a failure to follow instructions. These were summarised in the written submissions filed on Mr Bennet’s behalf as follows:
(a)Mr Bennet wanted to give evidence in his defence but was told at the end of the Crown case that Mr Ruth would not allow him to do so.
(b)If he had given evidence, Mr Bennet would have explained that he had administered five ml of methadone to Joshua. It was clear that Joshua was determined to use the methadone, with or without assistance, and that he was going to use a dirty “outfit” (syringe and barrel). Mr Bennet says that he decided it would be safest to make sure Joshua used a clean “outfit” in a safe environment and away from the other party goers. He says he did not supply the methadone as Joshua had his own container of methadone in a snaplock bag. Mr Bennet says that he helped administer the methadone by puncturing Joshua’s right arm. He left Joshua to plunge the needle himself.
(c)Mr Bennet had explained about his helping with the five ml to Mr Ruth at their first meeting but, contrary to his instructions, Mr Ruth ran the defence on the basis that there had been no methadone administered at all by Mr Bennet.
(d)Joshua’s access to methadone was not fully canvassed at trial, despite clear instructions by Mr Bennet to his trial counsel to ask questions of Mr Tobias Stickings about allegations that he had allowed Joshua to have access to methadone. Two other Crown witnesses should also have been cross-examined in this regard.
(e)Mr Ruth ignored instructions that there was potential evidence that Joshua had tried to sell methadone to two of the party goers.
(f)Because of the way Mr Ruth decided to run the trial, there was no cross-examination of the expert witnesses as to the effect of five ml of methadone and whether it would have caused death.
(g)Mr Bennet was not given access before trial to photographs of Joshua’s arm which showed bruising consistent with the pressing down of fingers to bring the vein up. This would have supported Mr Bennet’s evidence that he did not use a tourniquet for the injecting of the five ml of methadone.
(h)Mr Ruth failed to cross-examine the medical expert on the effect of alcohol on the dexterity of long time alcohol and drug users, as Joshua was.
(i)Mr Ruth failed to follow instructions regarding cross-examining Ms Jackie McAlister about having stolen Mr Bennet’s methadone. This was to support the (to us inherently unlikely) theory that her stealing the methadone had caused her to conspire with Ms Freedom Ramage and Ms Tarla McManus for them to give false evidence at the trial.
[9] An affidavit of one of Mr Bennet’s previous counsel (he had had several) was also filed. In that affidavit, Mr Radford deposed that his recollection was that Mr Bennet’s defence was to be that he had administered a lesser quantity of methadone and the issue was to be one of causation – ie that Mr Bennet’s actions did not cause Joshua’s death.
[10] It was submitted by Mr La Hood, for Mr Bennet, that, if the Court accepted Mr Bennet’s evidence, then the failure to follow instructions had clearly caused a miscarriage of justice. He submitted that, in any event, a reasonable possibility that there had been a failure to follow instructions should always lead to the conviction being set aside.
Crown’s submissions
[11] An affidavit from Mr Ruth was also filed. In that affidavit, Mr Ruth deposed that the first time he became aware of Mr Bennet’s current account of the events of 18 January 2003 was when he read Mr Bennet’s affidavit sworn in support of his appeal to this Court.
[12] Mr Ruth said that it had been clear to him, from Mr Bennet’s interviews with the police, that Mr Bennet denied supplying or administering methadone or having any involvement in Joshua’s death as a result of methadone overdose. Following Mr Ruth’s assignment, Mr Bennet never instructed him at any stage that his defence was other than what he had ultimately told the police in those interviews. Mr Ruth pointed out that, if he had been told that Mr Bennet had assisted Joshua in administering the first dose of methadone of approximately five ml, it would have been against the Rules of Professional Conduct for Barristers and Solicitors for him to advance a defence of complete denial of Mr Bennet’s involvement, while being in possession of direct evidence to the contrary.
[13] Mr Ruth deposed that Mr Bennet had, however, mentioned to him that he had given Joshua a clean outfit (needle and syringe) on the basis that, if Joshua was intent on taking drugs, then it should be in a safe way. In accordance with those instructions, Mr Ruth attempted, in his cross-examination of the witness, Mr Johnny Holman-Watson, to establish that it was only a clean barrel that Mr Bennet had given to Joshua and not a barrel and five ml of methadone as Johnny had asserted in evidence.
[14] Mr Ruth also deposed that, at no time, did Mr Bennet indicate he wanted to give evidence or call evidence. He said that Mr Bennet had agreed that his statement was to be his defence and that it could not be improved upon by him giving evidence. Rather, Mr Bennet had accepted Mr Ruth’s advice that, because of the numerous self-admitted lies and the discrepancies between Mr Bennet’s account and those of the other Crown witnesses, cross-examination by the Crown had the potential to destroy Mr Bennet’s defence of denial of involvement.
[15] The Crown submitted that, in assessing whether to accept Mr Bennet’s or Mr Ruth’s account, the Court should assess the veracity of Mr Bennet’s new evidence against the background of a number of lies Mr Bennet told the police. It was also submitted that certain matters that Mr Bennet now asserts are clearly inconsistent with what Mr Ruth had been told. For example, Mr Ruth had been instructed that “plunge” was not a word that Mr Bennet would use. Mr Bennet does not deny that those were his instructions to Mr Ruth.
[16] Mr Ruth, as instructed, extracted evidence from Mr Bennet’s partner, Ms Kavanaugh, that Mr Bennet would not have used the word “plunge”. Instead she said that he would have said “have a taste” or maybe a “binge”. This was in an attempt to persuade the jury that Ms Ramage’s evidence should be rejected. Ms Ramage’s evidence was that Mr Bennet had said to her that he had given Joshua 20 mls of methadone and that had made him quite sick, but that, when he had plunged the second lot of methadone, Joshua had keeled over and it served him right for skiting.
[17] However, “plunge” is the very word that Mr Bennet uses in the affidavit that was before this Court. Mr Bennet said in his affidavit:
The methadone that he had was an 8-10ml container. I obtained a clean 5ml syringe and needle and took him into my room to assist him. I told him that I would assist him by setting things up but that I would not be able to inject him. I found his vein for him on his right arm. Despite the evidence at trial, this in fact is the arm that most often is used for intravenous drugs because the vein on the right arm is almost always more prominent due to the fact that that arm is used more often. I did not use a tourniquet and simply filled up the 5ml barrel of the syringe and inserted the needle into his vein. I said to him that he would have to plunge the syringe himself as I was not prepared to do that for him. He did so. [Emphasis added]
[18] In his evidence before us, Mr Bennet tried (unconvincingly in our view) to explain away the paradox of his using the word “plunge” in an affidavit but having asserted at trial that he would not use such a word. He said:
And if you’re going towards it [the word "plunge”] being in my affidavit, Sir, I put it in my affidavit after thinking hard and long about it because it’s all through the trial transcription. It seems to be a word that – what I would refer to as laymen of the IV use seem to understand. Other than that, the words I would use would be indicating more – to more a point of view of “hitting it up”, “banging it up”, “having a taste”. Words that I didn’t think it was appropriate to be used in court.
[19] The current version of events is also, in the Crown’s submission, contrary to Mr Bennet’s confession to his son Shaun, which was overheard by Shayne Michelle and later confirmed in Mr Bennet’s confession to Ms Ramage. Further, the current version was contrary to Mr Bennet’s police statements. Mr Bennet’s insistence in evidence before this Court that he had lied in his police statements to protect his children is unconvincing as there was no evidence his children were implicated and, in any event, Mr Bennet had been shown his son’s statement which implicated Mr Bennet. Further, there was evidence that Mr Bennet had injected others in the past and his assertion that he did not use tourniquets was not supported by the evidence.
[20] The Crown also submitted that the current version of events is inconsistent with the physical evidence. For a start, Joshua was right handed but the two puncture wounds were made in the crook of Joshua’s right arm. The two puncture entries into the vein were also accurately placed in the lumen in the medial vein. The evidence was that, if self-injecting, there is a strong tendency to inject the arm’s lateral vein and that it is more difficult to inject into the medial vein. In addition, there was evidence that the needles had been placed with a high degree of accuracy and co‑ordination. On Mr Bennet’s affidavit evidence, not only was Joshua hindered by alcohol and cannabis but he was also affected by five ml of methadone. Further, the syringe that Mr Bennet alleges Joshua used for the second injection was not recovered in Mr Bennet’s bedroom where Joshua was found by the party goers and the methadone container in the small snaplock bag which Mr Bennet alleges Joshua showed him was also never recovered.
Discussion
[21] Both Mr Ruth and Mr Bennet were cross-examined on their affidavits in this Court. Having considered the affidavit evidence, the cross-examination and the parties’ submissions, we accept Mr Ruth’s evidence that the first time he heard Mr Bennet’s current version of events was when he received a copy of Mr Bennet’s affidavit filed in support of this appeal. We do not accept Mr Bennet’s evidence that he told Mr Ruth that he had administered five ml of methadone to Joshua or that he at any stage tried to do so.
[22] Even if we had accepted Mr Bennet’s evidence, it would not have supported his case. In answer to questions from his own counsel, Mr Bennet said that he had, on first meeting Mr Ruth, instructed him as to the discussions that he had had with his previous counsel, Mr Radford, but that Mr Ruth had stopped him, saying that he had read through all the material, including Mr Bennet’s police statements and that the case should be defended on the basis of those police statements. He was asked by his counsel whether he agreed with that line of defence. His answer was that he did mostly but that he had concerns that he would not be given further counsel if he did not. He then said that he was happy after depositions that Mr Ruth had the case under control with the defence Mr Ruth had chosen to run. It thus appears, even on his own evidence, that he had been prepared to accept what he says was Mr Ruth’s choice for the line of defence. He said:
Q. Now, have you had been opportunity to read Mr Ruth’s affidavit?
A. Yes.
Q.And are there any comments you want to make in relation to that affidavit?
A.Regarding Mr Ruth's affidavit, I feel that he was more dominant to me when he met me and he has denied that I ever gave him instructions to any other effect where I had on first meeting instructed him that I had had counsel, Mr Mike Radford and that we had discussed and prepared to defend my case in regards to a partial admission; that my statements to the police had been lies. And at that point he stopped me and said, “I’ve read through the statements, we stay with this, which is how we defend the case”. And from there everything else that’s sort of gone ahead and has been done to the effect of defending the case in the manner of which he’d figured was best to run it.
Q. Now, did you agree with that?
A.In most part, yes. But I was in a position where I had been given what Legal Aid had termed to me my last counsel two weeks before depositions, that the dates would not be reset, more counsel would not be assigned to me. And really I was at a loss to do anything else. What else could I do? I didn't agree with the way that he wanted to run the case at heart but I had to agree with him on a legal stand point because there was no other option left to me at that stage.
Q. And why was that?
A.Because no other counsel was going to be appointed to me. And then they told me that deps were going ahead on those dates, the dates were set.
JUSTICE ANDERSON
Q. Mind you, it was two months between deps and trial.
A.Yes, and I saw Mr Ruth a total of two hours between deps and trial and then on the both occasions it was to go over parts of the depositions that he wanted to clarify and any parts of the statements that he thought needed to be defended. Like I said, at that stage, there was no getting another lawyer. So, I was under the impression there - as in my affidavit, I admit that between - after depositions I was quite happy, considering Mr Ruth had only spent an hour with me prior to depositions. The way depositions went, I was under the impression that he had the case pretty much under control with the defence that he had chosen to run.
[23] Mr Bennet himself later acknowledged, in answer to a question from the Bench, as to whether he was accusing Mr Ruth of lying, that he was “not so much accusing him of lying, Your Honour, but just not of listening.” This is an accusation of quite a different character to the allegation in his affidavit. Mr Bennet is, however, in our view, an articulate, confident person, who would not hesitate to insist that his counsel listen. As noted above, even on his own evidence, Mr Bennet made a conscious choice not to deflect Mr Ruth from the defence of complete denial that Mr Ruth had assumed, from Mr Bennet’s police interviews, to be Mr Bennet’s defence. This is quite clear from Mr Bennet saying in evidence that he had made no additional attempt, after the first meeting, to tell Mr Ruth about helping to inject Joshua with five ml of methadone. Instead he tailored his discussions with Mr Ruth to suit the defence Mr Ruth was running. In answers to questions from the Bench, Mr Bennet said:
Q.Mr Bennet, Mr Gresson asked you some questions concerning the cross-examination of your partner, in particular at page 93 of the transcript, where Mr Ruth was cross-examining her about whether there was enough time for the injection process to have taken place. And I recorded your answer as being that, this is a matter you had discussed with Mr Ruth and that Mr Ruth had asked you, "How long did it take?" Have I recorded your answer correctly?
A.He wanted to know how long it would have taken to administer one injection, to know whether there was time to administer the two, as the Crown contended. And that’s when I instructed him that, no, there would not have been enough time to administer both. Mr Ruth's cross-examination in court was claiming there was not enough time to administer it at all.
Q.So, did you tell him that you had administered that dose or been part of the process?
A.No, once Mr Ruth indicated that the defence was a complete denial, full stop, any subject matter I brought up relating to having anything to do with it was irrelevant from that point on. I had to rearrange everything in my defence and everything - every instruction I gave to him to coincide with that defence. So, if he asked me questions relating to specific areas of the statements, then the answer I had to give him was in relation to that line of defence, rather than the line of the defence that Mike Radford -
Q.So, it's your case, is it, that once he had told you right at the outset that your defence was to be as contained in your statement, that you'd had no part of it --
A. Yes.
Q.--whenever he thereafter asked you any question, you did not necessarily tell him the truth but rather gave him whatever answer that you thought would fit?
A.Yes, because he had instructed me right from the word go not to admit anything to him. So, he was going with that line of defence. When I went to explain what Mike Radford and me had done, he stopped me, half way through the first explanation of it, and said, "Don't admit anything to me. This is the line of defence. You stay with your statement." His main theme was I would discredit myself further if I continued, not to change my statement at that stage and I think mainly not allowing me to take the stand was because I would have to go with what was the truth on the stand to defend myself and that would go against his line of defence he'd taken through the trial. So, the answers I gave him in regard to everything wasn't so much adjusting what was there to fit the statements, more so than - some of them were obviously - I would have to either lie or put across a part truth rather than the actual truth to fit in with the line of questioning that he wanted to do. But that was the instructions that he gave me; that that was the line of defence. So, that was how I had to rework out everything that was in the statements going through. Follow what I mean?
[24] In our opinion, Mr Bennet freely chose to follow the line of defence that was taken by Mr Ruth at his trial. He may or may not, at the time of the initial meeting, have considered telling Mr Ruth about the line of defence he had discussed with Mr Radford but we are satisfied that he did not do so. Nor did he try to do so. Instead he chose to take the line of defence Mr Ruth had assumed from reading the police interviews. Thereafter, Mr Bennet chose not to alert Mr Ruth to anything that contradicted that defence, including the assertion he now makes about having helped Joshua inject five ml of methadone by placing the needle in Joshua’s vein. In those circumstances, the fact that Mr Bennet’s current version of events was not before the jury was entirely his choice. He cannot now complain about that.
[25] We note that, in any event, Mr Bennet’s now version of events would have run into all the same difficulties as did his defence of complete denial (including inconsistency with the physical evidence), if not more so, given that it would have required him to go into the witness box and admit that he had lied to the police in the earlier interviews.
[26] There were a number of other matters raised by Mr Bennet where he alleges Mr Ruth did not follow instructions. Some of these are related to Mr Bennet’s now version of events. These complaints necessarily fail. In other cases, the evidence of Mr Ruth and Mr Bennet differs. Where this is the case, we accept Mr Ruth’s version of events (and in particular we accept that Mr Bennet never intimated to Mr Ruth that he wished to give evidence). Mr Ruth has provided explanations with regard to the rest of the issues raised. We have carefully considered those other matters and Mr Ruth’s explanations and we are satisfied with those explanations. In any event, in our view, these residual matters were by no means important enough to have led to a conclusion that there had been a miscarriage of justice. This ground of appeal must fail.
Inadmissible evidence
Appellant’s submissions
[27] Mr La Hood, for Mr Bennet, submitted that the following inadmissible and/or prejudicial evidence should not have been before the jury.
(a)The evidence from Mr Tobias Stickings that people are put on the methadone programme to stop them going out committing crime all over town. This was prejudicial because Mr Bennet was prescribed methadone for pain. He was not on the methadone programme, despite the Crown asserting at trial that he was a confessed drug addict.
(b)The evidence from Mr Johnny Holman-Watson that Joshua told him that he was going into Mr Bennet’s room to have methadone with Mr Bennet and that he had purchased methadone from Mr Bennet. This was hearsay and the Judge’s direction did not ameliorate the highly prejudicial effect of this unchallenged hearsay evidence. In addition, the state of mind of the witness and Mr Shaun Bennet were not essential or even important aspects of the trial.
(c)The evidence from Mr Johnny Holman-Watson about Mr Bennet allegedly saying that he should put Joshua out in the gutter. Mr La Hood submitted that this evidence was highly prejudicial and should have been excluded for the same reason that evidence of a similar remark by Ms Kavanaugh, Mr Bennet’s partner, was excluded.
(d)The evidence from Mr Shayne Michelle that Mr Bennet’s son, Shaun, had told him that Joshua was in his room having some “stuff” with Mr Bennet. The Judge’s explanation as to how this evidence could explain Mr Shayne Michelle’s state of mind is strained and does not ameliorate the double hearsay nature of the evidence.
(e)Evidence from Joshua’s father, Mr Robinson, that he was not aware of Joshua taking any other drugs and that he had a lot of contact with Joshua’s friends and canvassed them regularly to see if Joshua was taking other drugs. This was hearsay evidence.
(f)The evidence from the pharmacologist, Mr Reith, that it had been previously commented on in the New Zealand Medical Journal that the use of methadone “takeaways” and the illegal provision of methadone to naïve users may be contributors to the high number of methadone deaths. He also said that methadone related deaths had been noted to be more common on Fridays and Saturdays and it was thought to reflect a greater number of doses being provided for a weekend “takeaway”. This evidence was prejudicial and should not have been given.
Crown’s submissions
[28] The Crown submitted in reply:
(a)The statement made by Mr Stickings was a gratuitous comment which was inconsequential. It was also clearly noted in the Crown’s opening that Mr Bennet had been prescribed methadone because of back pain.
(b)In relation to Mr Johnny Holman-Watson’s evidence, the Judge stressed that the evidence did not prove that Mr Bennet sold methadone or that Joshua went to the bedroom to have methadone. It was, however, admissible as part of the res gestae. The evidence was relevant to the question of Mr Johnny Holman-Watson’s subsequent concern as to the deceased’s seriously deteriorating condition and why Mr Shaun Bennet sought an explanation from his father about the situation.
(c)The evidence of the gutter remark allegedly made by Mr Bennet was clearly admissible.
(d)In relation to Mr Shaun Bennet’s comment to Mr Shayne Michelle, it was submitted that the Judge explained the comment was part of the narrative and correctly directed that it was not admissible against Mr Bennet. It is also to be noted that when Mr Shayne Michelle gave evidence the Judge and counsel for the Crown anticipated that Mr Shaun Bennet would give evidence which did not in fact happen.
(e)With regard to the evidence of Joshua’s father, the Crown pointed to Mr Ruth’s explanation that it would not have been helpful to Mr Bennet to come down hard on Joshua’s father who presented as a distraught, tearful witness. In any event, as pointed out by Mr Ruth, Joshua’s father candidly agreed that he was aware that his son did have difficulties, including the use of cannabis and alcohol.
(f)With regard to the evidence of Dr Reith, it was noted that the comment was a general comment and not one directed at Mr Bennet.
[29] The Crown submitted that the receipt of evidence in relation to the above matters could not in any event have led to a miscarriage of justice. The case, in the Crown’s submission, cannot be compared with this Court’s decision in R v Jarden, CA51/03, 4 August 2003, which related to the admissibility of evidence which breached s23G of the Evidence Act.
Discussion
[30] We accept the Crown’s submission that the statement made by Mr Stickings was an inconsequential gratuitous comment. It was within counsel’s discretion to consider that any objection to the comment would merely highlight it. There can be no question of a miscarriage of justice arising in this regard.
[31] With regard to the evidence from Mr Johnny Holman-Watson that Joshua had told him that he was going into Mr Bennet’s room to have methadone with Mr Bennet and that he had purchased methadone from Mr Bennet, this was extensively dealt with by the Judge in his summing up. The Judge said:
[30] First, there was quite a lot of evidence about what the deceased said. Now counsel conducted the case as a case on the basis that you could make what you chose of this evidence and in those circumstances I am content to leave it with you on that basis save as to one aspect of the evidence. I want to refer to this in a little detail because it is not entirely easy and it may be reasonably important. The passage in the evidence I want to read starts at page 20, line 36, or about line 38 and it is when the deceased comes back into the lounge just before going into the accused’s bedroom:
q.And can you recall whether he then indicated what he was going to do.
a.he said to me and Shaun that he was going to go and have some methadone.
q.Did he say where he was going to have the methadone.
a. Yes he said he was going to have it in Vaughn’s room.
q.Can you remember actually how he said it, did he use the word methadone or did he use another word.
a. He said Done.
It is recorded in the transcript as “done” but I think it is actually “dome”. He said “dome”.
q. Did he say where he had got the Done from.
a. He said he brought [sic] it.
q.Did he say from whom he had bought it.
a. Yes he said he had brought [sic] it from Vaughn.
q.After he said that who left the room.
a. Josh [Robinson], Sue [Kavanaugh] and Vaughn [Bennet].
I am sorry, that discussion was in the kitchen according to Johnny Holman, not the lounge.
[31] Now there was no objection to that evidence. But I should make it clear that I regard that evidence as inadmissible as proof that the accused sold methadone to the deceased or that the deceased was indeed going to the accused’s room to have methadone. The evidence is nonetheless relevant in several respects. First, it is relevant because it indicates why John Holman and Shaun Bennet may have thought that this was why the deceased was going to the accused’s bedroom. This could be relevant as to why Johnny Holman was so worried about the deceased. As well, and perhaps importantly, if this remark was made by the deceased it could also serve to explain later why Shaun Bennet might have asked the accused if he had given the deceased “some of that stuff” in the discussion which Shayne Michelle told you he overheard.
[32] So this evidence about what the deceased said is what lawyers and Judges sometimes call part of the narrative. It is important, or may be important, if you accept that the deceased said that because it may explain what later happened. But it is not evidence directly against the accused that he had supplied the deceased with methadone or that indeed the purpose of going into the room was to take methadone.
[32] It can be seen from the above passage that the Judge in his summing up made it absolutely clear that the evidence was not admissible as proof that Mr Bennet sold methadone to Joshua or that Joshua was going to Mr Bennet’s room to have methadone. This must be seen as undoing any illegitimate prejudicial effect. There is no reason to think that the jurors disregarded these instructions.
[33] With regard to the gutter remark, this was primarily relevant to the alternative count (to the manslaughter count) of, without lawful excuse, failing to perform the legal duty to supply Joshua with the necessaries of life, namely medical care. In relation to the manslaughter count, it could be seen as showing a consciousness on Mr Bennet’s part that he was responsible for Joshua’s condition. Either way, there is no illegitimate prejudicial effect. This evidence was quite different from the comment made allegedly by Mr Bennet's partner, Ms Kavanaugh, as there was no evidence that her comment had been adopted by Mr Bennet in any manner and no evidence that it was reporting a comment made by Mr Bennet. The Judge’s ruling with regard to the gutter remark by Ms Kavanaugh was as follows:
[1] Mr Gresson wishes Jacqueline McAlister to give evidence to the effect that when she first saw the accused and Suzanne Kavanaugh after the ambulance had been called Suzanne Kavanaugh said to her that she wished that an ambulance had not been called because:
We hadn’t had time to put him in the gutter
[2] The deposition does not suggest that the accused said anything which could be regarded as an adoption or an approbation of that remark. On the evidence before me it would appear that he simply said nothing.
[3] The evidence is prejudicial, to say the least. But more than that, it is without any counter-balancing probative effect. It does not bear directly on the accused’s state of mind. To the extent to which it might conceivably be thought to imply that the accused had previously discussed the matter with Ms Kavanaugh in terms which suggested that an optimum outcome for the problem was placing the deceased in the gutter, the evidence is hearsay.
[4] In those circumstances I can see no legitimate probative value for the evidence which I exclude.
[34] With regard to the evidence of Mr Shaun Bennet’s comment to Mr Shayne Michelle, again the Judge quite clearly explained in his summing up that the comment was not admissible as proof that Mr Bennet had administered methadone to Joshua. In the circumstances, therefore, any prejudicial effect was negatived by the Judge’s directions. We note also that the comment is understandable in that, at the time the evidence was given, the Judge and both counsel anticipated that Shaun Bennet would in fact give evidence. The Judge said:
[33] Now ladies and gentlemen, this reference leads on to the reference of Shayne Michelle that Shaun Bennet expressed the belief at the party that the accused and the deceased were in the accused’s room “having some of that stuff with my Dad”. Well ladies and gentlemen, if that is what Shaun believed that would not be surprising if you accept Johnny Holman’s evidence, but surprising or not, it is not admissible against the accused because it is in effect double hearsay. It is Shaun Bennet saying something based on what the deceased said. Its only relevance as part of the narrative is that on Shayne Michelle’s evidence it explains, or may explain, why he got nosey as he put it and had a look in the accused’s bedroom. It may also help to explain why Shayne Michelle became pretty worried about the deceased’s condition.
[35] With regard to the last two matters raised, we accept that it was sensible for Mr Ruth not to alienate the jury by taking issue with the evidence given by Joshua’s father. In any event, there was evidence that Joshua was in fact affected by drugs and that he had wanted the methadone and thus Mr Robinson’s comment cannot be seen as having influenced the jury. With regard to the evidence of Dr Reith, we accept the Crown’s submission that the comment was a general one and not applicable to Mr Bennet. There was absolutely no evidence that any methadone that Mr Bennet had in the house was as a result of weekend “takeaways”.
[36] For the above reasons, this ground of appeal also fails.
Refreshing the memory
Appellant’s submissions
[37] It was submitted, on behalf of Mr Bennet, that the trial Judge was wrong to rule that Mr Holman-Watson could refresh his memory while in the witness box from statements he had made to the police on 18 and 20 January 2003. This was because the statements did not meet the necessary contemporaneity requirement. It was submitted that the traditional view of contemporaneity should be reaffirmed and that witnesses should be able to refresh their memories in the witness box only from notes made at the time or immediately afterwards. In Mr La Hood’s submission, the decision of Smellie J in Equiticorp Industries Group Ltd (In Statutory Management) v R [1995] 3 NZLR 243 should not be followed in criminal cases.
[38] What should have happened, in Mr La Hood’s submission, was that the witness should have left the witness box to review the documentation and returned to testify with a refreshed memory. In this regard, he referred to R v Da Silva [1990] 1 All ER 29. It was also submitted that the witness was wrongly cross-examined by the Crown on his statement without any application to declare him hostile.
Crown’s submissions
[39] The Crown submitted that the contemporaneity requirement was clearly satisfied. It was submitted further that Mr Holman-Watson did not have an independent recollection of the events in question but that he stated in evidence that the relevant passages in his statement were accurate. In such a case, the document itself is admissible in evidence. In R v Naidanovici [1962] NZLR 334, this Court accepted that, when a witness has no independent recollection, despite “refreshing” of memory in the standard way in the witness box, the document itself becomes admissible as evidence. Where, however, there is some degree of present recollection, the document remains inadmissible – see also R v Mills [1984] 2 NZLR 92.
[40] In this case the Crown submitted that there was no inappropriate cross‑examination. Parts of Mr Holman-Watson’s statement were merely put into evidence. The alternative would have been to put the whole statement in evidence, on the basis of R v Naidanovici. The manner in which it was done was fairer to the defence.
Discussion
[41] A witness giving evidence may refresh his or her memory in the witness box by reference to any writing concerning the facts to which he or she gives evidence, provided that the writing is made at a time when his or her memory was clear: Attorney-General’s Reference (No 3 of 1979) 69 Cr App R 411 (CA). Cross on Evidence at para 9.21 describes contemporaneity as a requirement that is usually treated as an additional independent condition but says that, in fact, it “can hardly amount to more than strong evidence of compliance with the further requirement that the writing must have been brought into existence while the facts were still fresh in the witness’s memory”.
[42] There now exists a line of authority for the proposition that a witness may refer to documents to refresh his or her memory, even where the document does not meet the test for contemporaneity. In R v Da Silva [1990] 1 All ER 29 the English Court of Appeal considered that a court has a discretion to allow a witness who had begun giving evidence to refer to a document to refresh his or her memory if satisfied (at 33):
(1) that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place; (2) that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it; (3) that he had not read the statement before coming into the witness box; and (4) that he wished to have an opportunity to read the statement before he continued to give evidence.
[43] The Court emphasised, however, that, while it was irrelevant whether or not the witness stayed in the witness box to read the document, the document was to be removed from the witness before he or she recommenced giving evidence.
[44] Da Silva was adopted in New Zealand in the civil case of Equiticorp Industries Group Ltd (In Statutory Management) v R [1995] 3 NZLR 243 (HC). Smellie J allowed, in the unusual circumstances of that case, a witness to have recourse to a statement made over five years after the events in question. In doing so His Honour relied in particular on the analysis in Wigmore on Evidence of the distinction between cases involving evidence of a past recollection recorded and cases involving a present recollection revived by reference to documents. In the latter case, it was not necessary that the document referred to have value as a contemporaneous record of past recollection because the purpose of the reference is simply to revive a memory so as to allow the witness to give evidence of his or her present recollection (Wigmore on Evidence (Chadbourn Rev, 1970) §761). Equiticorp is therefore only applicable to situations where the writing revives present recollection.
[45] Cross on Evidence describes Da Silva as controversial (para 9.21, n3) and considers that both Da Silva and Equiticorp were wrongly decided (para 9.22). The objection is essentially pragmatic: in such cases the memory “revived” will probably be created by the reference to the document and accordingly there is a significant danger that unreliable evidence will be given by reference to a document that may well be inaccurate because of the passage of time between the events it describes and its creation.
[46] In this case we consider that what is loosely called the contemporaneity requirement was met, with regard to both statements – ie the statement taken on the night in question and the more detailed statement taken two days later. Not only were the statements made very close in time to the events but those events would have been traumatic and, as a result, clear in Mr Holman-Watson’s mind at the time of making both those statements.
[47] As what is loosely called the contemporaneity requirement is met in this case, we do not need to decide whether Equiticorp applies in criminal cases. In any event, as is shown in the discussion below, one of the pre-requisites of Equiticorp was not present in this case. Recourse to his statement did not revive Mr Holman-Watson’s memory.
[48] It is clear from the transcript that there had been some concern that Mr Holman-Watson’s loss of memory was not genuine and that he was in fact a witness not desirous of telling the truth at the behest of the Crown who had called him. Mr Holman-Watson was, however, given his statements to refresh his memory. What transpired to be the case was that the statements did not revive his memory. Mr Holman-Watson still could not remember the events but he was quite clear that what he had said in the statements was accurate and truthful. This is apparent from the examination of the transcript after Mr Holman-Watson had been shown his statements:
q.Johnny on the night that Joshua died and went away in the ambulance, after the police arrived at the scene didn’t they
a. yes
q.and then later that evening you made a statement to the police
a. yes
q.and then you made another statement two days later on the 20th of January
a. yes
q.now Im going to hand you a typewritten copy of that statement. Its quite long and I think when we adjourned I had asked you a question about what Vaughn had said after you got back, after he got back from having obtained fish and chips and why Joshua was moved from Vaughns room to your room.
a. yeah
q.and when you read the statement you’ll find reference to that to towards the end of it.
THE COURT:
q.just have a look at the statement
CONTINUES:
q.you can read alright can you
a. yes
a. [Witness reads statement to himself]q.have you read the whole statement
a. yes
q.no you’ll see towards the very end, the second last question, you were asked, why did you move Josh from Vaughns room to your room
a. yeah
q.having refreshed your memory from the statement, what is your answer to that
a.it says in the statement because Vaughn says to put him in the gutter but I can’t remember any of that being said
q.but you’ve signed the statement
a. yes
q.when you say you can’t remember it being said, now you can’t remember it being said
a. yes
q.what you told the police on this occasion on the 20th were you being truthful to the police
a. yes
q.so coming back to when Josh was moved from his room, Vaughns room to your room, can you recall who asked who to move Josh
a. no
THE COURT:q.so I have it clear, do you believe that what you told the police was correct
a. yes
q.just so I understand, its not a case of you believing that nothing was said just because you can’t remember it, is that right
a. please repeat that
q.its quite complex. One reason for not remembering that something happened is that it didn’t happen right
a. yeah
q.another reason is that it did happen but you’ve forgotten it, alright
a. yeah
q.now this something in this case is pretty much a question of why Josh was moved from one room to another
a. yeah
q.and you gave an explanation for that to the police
a. yeah
q.but you can’t remember that now
a. no
q.and what I was just really trying to establish is whether you think it did happen because that’s what you told the police
a. yeah
q.and you’re nodding
[49] The concept of allowing a witness to refresh his or her memory from a document covers not only cases in which the document is used to revive a present recollection but also cases where there is no present or independent recollection at all but where the witness is prepared to give evidence that the past recollection recorded in the writing is accurate. In the latter case, the original writing must be produced for the inspection of the opposing party: Doe d Church and Phillips v Perkins (1790) 3 Term Rep 749; 100 ER 838; R v Naidanovici [1962] NZLR 334 (CA).
[50] In Naidanovici this Court was divided over whether the document itself becomes admissible. The majority held that it does, subject to it not being treated as independent confirmatory evidence of what the witness says. This was adopted by Eichelbaum J in R v Mills [1984] 2 NZLR 92, 98 (HC).
[51] In this case, therefore, the fact that parts of the statement were put into evidence did not, in our view, amount to inappropriate cross-examination. It was instead merely an acceptable method of placing parts of the statement in evidence in circumstances where the written record would have been admissible, at least insofar as it related to the events with regard to which Mr Holman-Watson had no independent recollection.
[52] This ground of appeal therefore also fails.
Timeline
Appellant’s submissions
[53] Mr La Hood submitted that the Crown should not have been allowed to provide to the jury a timeline summarising the Crown’s evidence in a chronological sequence. The Court had required that the chart be highlighted to indicate those aspects of the Crown’s chronology that were in dispute. However, the detailed evidence that the defence said supported its case was not included in the timeline. This meant that there was a distorted picture of the evidence provided to the jury and, in the absence of a defence document to the same effect, there was a real risk that the document influenced the jury to a powerful and disproportionate extent.
Crown’s submissions
[54] The Crown submitted that the chronology was a merely a crystallisation of the most significant aspects of the evidence to assist the jury during its deliberations. Transcript page and line references were included so that the chronology could be checked by the jury against the transcript that they received on a daily basis. The chronology meant that neither counsel nor the Judge had to remind the jury of the detailed evidence in chronological sequence. There was clearly a highlighting of the areas of evidence that were disputed by Mr Bennet. In the circumstances, the Crown submitted that there was no unfairness to Mr Bennet in allowing the timeline to go to the jury.
Discussion
[55] We see no unfairness in the provision of the timeline by the Crown to the jury. While the detailed defence evidence which had supported its case was not included in the timeline, it was clearly noted in the timeline where there was a dispute over the evidence. The jury had the ability to check all of the matters in the timeline against the evidential transcript and there would have been nothing to stop the defence putting in its own chronology if it had considered that this would have assisted the case. This ground of appeal also fails.
Appeal against sentence
Sentencing remarks of William Young J
[56] William Young J noted that Mr Bennet had been an intravenous drug user for many years and that he had a range of criminal convictions going back over 25 years. However, he acknowledged that Mr Bennet had no convictions for crimes of violence and no convictions involving the supply of drugs. He noted some positive aspects of Mr Bennet’s character in that, despite longstanding intravenous drug use and the associated lifestyle, his previous offending had been at a low level. He also noted that Mr Bennet had an enduring relationship with Ms Kavanaugh and that he had worked in the community with the needle exchange programme.
[57] The Judge recorded the Crown submission that a sentence in the order of 12 to 15 years would be appropriate. This was based on the approach the courts have taken to cases involving cruelty to children. He accepted that Mr Bennet neither intended nor desired the death of Joshua and that he should not treat a lack of mitigating factors as aggravating the offending. He was also prepared to accept, to some extent, that the case should not be treated analogously with the cruelty to children cases. However, he said that the disparity in age between Mr Bennet and Joshua was a relevant consideration.
[58] William Young J also set out a number of serious aggravating factors to the offending, including the injecting of methadone into a naïve user, particularly one who was significantly affected by alcohol, the discrepancy in the age and experience between Mr Bennet and Joshua and that the offending involved the introduction of a boy to intravenous drug use. These factors, in the Judge’s view, obviously merited condemnation.
[59] The Judge also took into account Mr Bennet’s conduct after Joshua became unconscious. He considered this conduct as particularly callous. He said that, if assistance had been summoned immediately, it is almost certain that Joshua would have survived. He thus saw the failure to summon assistance as a seriously aggravating factor, particularly as the young people at the party were, in his view, waiting for Mr Bennet’s lead in terms of what to do. He said that Joshua was entirely vulnerable and his chances of survival rested on Mr Bennet acting in a humane and decent way.
[60] In addition, the Judge considered that the shocking and terrible nature of the offence must have scarred others who were involved, including the young people at the party (and there were party goers there as young as 12). He referred in particular to the effect on Mr Bennet’s son Shaun, who had been put in an almost impossible position. If Shaun had given evidence, he would have been required either to give damning evidence against his father or, alternatively, to repudiate the statement he had made to the police. The Judge also noted that Mr Bennet had shown no remorse. It was accepted, however, that Mr Bennet was unlikely to reoffend in a similar way.
[61] Taking into account all these factors, William Young J was of the view that the appropriate sentence on the manslaughter charge was 10 years imprisonment. The seriousness of the offending (given the age and inexperience of Joshua) and what he called Mr Bennet’s “callous and depraved failure” to summon medical assistance warranted a minimum non-parole period of six years.
Appellant’s submissions
[62] Counsel for Mr Bennet referred to the case of R v Slater [1998] 3 NZLR 1 where this Court reduced a sentence of four years imprisonment to three years imprisonment following a conviction at trial of a 19 year old who had injected his 18 year old girlfriend, at her request, with morphine. This Court accepted in that case that there was a need to send a clear deterrent message due to the gravity of the offending but reduced the sentence on the basis that the Judge had not sufficiently allowed for the appellant’s age and his personal loss and grief.
[63] It was submitted that the aggravating features referred to by the Judge in Mr Bennet’s case, namely the discrepancy in ages and the callous indifference to obtaining medical treatment, do not justify a starting point of 10 years imprisonment. While the age of Joshua was a relevant and aggravating feature, it was pointed out that Joshua had clearly been intending to consume methadone, either with or without Mr Bennet’s assistance. He had pestered Mr Bennet into administering the methadone. It was submitted that the Judge, in sentencing the appellant to 10 years imprisonment, equated this case to violent infliction of cruelty on a child as referred to in R v Leuta [2002] 1 NZLR 215. This was wrong in principle.
[64] With regard to the minimum non-parole period, it was submitted that, compared to other manslaughters and in particular manslaughters involving the deliberate use of serious violence, this particular offence does not meet the “out of the ordinary range” test required by s86(3). Nor do the aggravating features of the offending, in Mr La Hood’s submission, otherwise raise the offending to the level of sufficient seriousness to justify the imposition of a minimum non-parole period.
Crown’s submissions
[65] The Crown submitted that the culpability in Slater was significantly less than in Mr Bennet’s case. In Slater the deceased had purchased the morphine herself, she was in a relationship with the appellant, both were drug addicts and their pattern of drug use was that the appellant would inject her because of her fear of needles. Both were also approximately the same age. In addition, notwithstanding that the appellant had been affected by the drug, he responded immediately to her difficulties, tried to keep her awake, gave her CPR and called an ambulance.
[66] It was submitted that this was in sharp contrast to Mr Bennet’s position. He was 41, the deceased was 17 and naïve to methadone. The methadone belonged to Mr Bennet, there was not a close relationship between the two and Mr Bennet, after injecting Joshua twice with methadone, provided no assistance, notwithstanding Joshua’s obvious difficulties.
[67] The serious aggravating factors referred to by the Judge and the lack of any mitigating factors, meant, in the Crown’s submission that a 10 year sentence of imprisonment was appropriate. Equally, the seriousness of the offending warranted a minimum non-parole period and that imposed was not out of range for the offending.
Discussion
[68] This Court has refused to set tariffs for manslaughter on the basis that the circumstances can vary so widely that to set tariffs would introduce an inappropriate lack of flexibility. Each case has to be looked at on its own facts and comparisons with other categories of cases and within categories provide limited guidance. The sentencing inquiry must be on the degree of culpability and sentences must reflect the need for deterrence of intentional harm – see R v Leuta [2002] 1 NZLR 215, [57] and [63] and R v Rapira [2003] 3 NZLR 794 at [128].
[69] In this case, the intentional harm can be seen as the supplying and administering of drugs to a naïve user who was also a troubled teenager. The need for deterrence in such a situation is very high. Further, we agree with William Young J that there must be an incentive provided to offenders to behave appropriately after the event. We thus agree that a stern approach is needed for those who fail to summon medical assistance in circumstances such as these.
[70] We also accept the Crown’s submission that this case was quite different in character from the case of Slater. In particular, the victim in Slater was about the same age as the offender, was not a naïve user and had purchased the drug herself. In addition, the offender in that case did all he could to try and save the victim and was clearly devastated by the death.
[71] By contrast, in this case, there is the differential in ages between Mr Bennet and Joshua, the supplying of methadone to and the injecting of a naïve user with drugs (and that naïve user a teenager who was clearly troubled and already affected by cannabis and alcohol), the fact that there were two injections of the drug, that Mr Bennet was the adult in charge of the party, the presence of other teenagers (and children) at the party where the injecting occurred and the associated trauma to those teenagers, the failure to summon timely medical assistance (when Joshua would in all likelihood have been saved) and the general callousness shown by Mr Bennet. Mr La Hood submited that, balanced against these factors, is the fact that Joshua had been intending to take methadone with or without Mr Bennet’s help. We do not accept this. Joshua needed Mr Bennet’s help as Mr Bennet was the source of the methadone. In addition, Mr Bennet’s role should, as the adult at the party, have been to do all he could to stop Joshua taking methadone.
[72] In our view, taking into account these circumstances, the sentence of 10 years imprisonment may have been stern but it was not out of the available range for the Judge. Equally, those aggravating factors mean that the offence was sufficiently serious to warrant a minimum non-parole period. We accept the Crown’s submission that the period imposed was not out of the range available to the Judge.
[73] Finally, we note that a sentence of 10 years imprisonment with a minimum non-parole period of five years was upheld by this Court in R v Hamer CA19/04, 13 September 2004. In that case, although the conduct of the offender in failing to seek medical attention was arguably worse that Mr Bennet’s (continuing as it did over a longer period and with further aggravating features), the victim in Hamer was an adult and the sentencing proceeded on the basis that she had drunk the methadone herself. It was not injected by Mr Hamer.
[74] The appeal against sentence therefore fails.
Result
[75] Mr Bennet’s appeal against conviction and sentence is dismissed.
Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Solicitors, Timaru
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