Brown v The Queen - [2021] NZCA 120

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA27/2019
[2021] NZCA 120

BETWEEN	CHRISTOPHER JAMES BROWN Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2021
Court:	Gilbert, Mallon and Edwards JJ
Counsel:	F E Guy Kidd QC and L C Preston for Appellant C A Brook and A D H Colley for Respondent
Judgment:	20 April 2021 at 9.30 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Christopher Brown, then aged 19, and six other young people were charged with the murder of Jack McAllister after he was stabbed 14 times with a hunting knife at ILT Stadium Southland (the Stadium) in Invercargill shortly after 11 pm on 7 June 2017. Mr McAllister, who was also 19, was known to all the defendants and he and Mr Brown were cousins.

Brayden Whiting‑Roff (aged 20) inflicted the fatal stab wounds. He pleaded guilty to murder shortly before the trial and was subsequently sentenced to life imprisonment and ordered to serve a minimum period of imprisonment of 12 years and six months.[1]
[1]R v Whiting-Roff [2018] NZHC 3239 [Sentencing judgment].
Georgia Dickey (aged 16) helped plan the attack and participated in it by punching Mr McAllister and restraining him while he was being stabbed by Mr Whiting-Roff. Ms Dickey pleaded guilty as a party to the murder four months prior to the trial and agreed to give evidence for the Crown. She was sentenced on 13 June 2018 to life imprisonment and ordered to serve a minimum period of imprisonment of 10 years.[2] She filed an appeal against her sentence on 12 July 2018 (three weeks before trial commenced for Mr Brown and the other defendants) contending that the sentence was manifestly excessive given her youth, prospects for rehabilitation and assistance by agreeing to give evidence for the Crown at the forthcoming trial.
[2]R v Dickey [2018] NZHC 1403.
The Crown alleged that Mr Brown was a party to the murder on two alternative bases. First, it was alleged that he was one of two or more people who agreed to prosecute an unlawful purpose (a serious assault on Mr McAllister with intent to cause him serious injury) and to assist each other in doing this, knowing Mr McAllister’s death was a probable consequence in the sense that there was a real or substantial risk it could happen.[3] Secondly, the Crown alleged that Mr Brown encouraged or assisted Mr Whiting-Roff to murder Mr McAllister.[4]
[3]Crimes Act 1961, s 66(2).
[4]Section 66(1)(b) or (c).
There was little dispute about the basic facts of what happened on the night of the attack or in the lead-up to it. The primary issues concerned the nature of the attack Mr Brown envisaged (a single punch as he contended in his police interview or a far more serious knife attack as occurred) and the extent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v The Queen

Details

AGLC: Brown v The Queen [2021] NZCA 120
Case: [2021] NZCA 120
Decision Date: 20 April 2021 at 9.30 am

CaseChat Overview and Summary

In the case of Brown v The Queen, the defendant, Brown, was on trial for a criminal offence. A key piece of evidence presented by the Crown was from Ms Dickey, who had a potential motive to provide false evidence that could prejudice the defendant. Ms Guy Kidd, representing the defendant, requested the judge to provide a reliability warning to the jury under section 122 of the Evidence Act 2006. The judge declined to give such a warning, finding that while Ms Dickey may have had a motive to give evidence for the Crown, there was no clear evidence she had a motive to lie. This decision hinged on the distinction between having a motive to give evidence and having a motive to lie.

The central legal issue in this case was whether the judge was correct in declining to issue a reliability warning under section 122(1)(c) of the Evidence Act 2006. The provision allows for such warnings when there is evidence that a witness may have a motive to give false evidence that is prejudicial to the defendant. The court needed to determine if Ms Dickey's situation fell under this provision. The defence argued that Ms Dickey's potential hope for a reduced sentence constituted a motive to lie, while the Crown maintained that her motive was to provide evidence, not to lie. The judge concluded that while Ms Dickey may have had a motive to provide evidence, there was no clear evidence she had a motive to lie.

The court's reasoning was based on the distinction between a motive to provide evidence and a motive to lie. The judge found that although Ms Dickey may have hoped for a reduced sentence by providing evidence, this did not necessarily mean she had a motive to lie. The judge highlighted that if Ms Dickey lied and was found to have done so, it would be counterproductive to the Crown's case and her own interests. The judge concluded that Ms Dickey's motive fell into the category of agreeing to give evidence rather than having an obvious motive to lie. Therefore, the judge decided that standard directions on the assessment of evidence would be sufficient.

The final orders in this case did not require the judge to issue a reliability warning under section 122(1)(c) of the Evidence Act 2006. The judge's decision was upheld as there was no clear evidence that Ms Dickey had a motive to lie. Instead, the standard directions on the assessment of evidence were deemed appropriate. This decision underscores the importance of distinguishing between a witness's motive to give evidence and their motive to lie, and it highlights the judge's discretion in deciding whether to issue a reliability warning.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During the first break while the Judge was summing up to the jury on 5 September 2018, Ms Guy Kidd asked her to give a reliability warning concerning Ms Dickey’s evidence under s 122 of the Evidence Act 2006. This section relevantly reads:122 Judicial directions about evidence which may be unreliable(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—(a)whether to accept the evidence:(b) the weight to be given to the evidence.(2)In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:…(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:…(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request— (a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or(b)if the Judge is of the opinion that there is any other good reason not to comply with the request.(4)It is not necessary for a Judge to use a particular form of words in giving the warning.… The Judge declined to give such a warning. She set out her reasons in a ruling subsequently issued on 12 September 2018.[9] In particular, the Judge was not persuaded Ms Dickey had a motive to lie. After referring to Ms Guy Kidd’s cross‑examination of Ms Dickey regarding her lies to the police and hope for a reduction to her sentence in return for giving evidence, the Judge continued:[8] The inference which was raised through these questions was that in order to get a reduced sentence, Ms Dickey, who was capable of lying, would “gild the lily” to support the Crown case. It is this, which would comprise her “motive” for giving unreliable evidence for the purpose of s 122(1)(c). However, this proposition was not expressly put to her in cross-examination, and, as Ms Thomas elicited in re-examination Ms Dickey’s diary recorded that she would “help the Crown by talking about what the others did which would give me even less time which means I’m getting what I want for my voice to be heard”.[9] In the circumstances, as elicited in cross-examination, I do not consider that it is a logical conclusion that Ms Dickey has a motive to lie. There is no obvious connection between wanting to give evidence for the Crown to reduce a sentence, and having a motive to lie. There is also nothing before the Court to suggest that Ms Dickey’s personal circumstances would be better advanced by her lying, than by giving honest evidence. Indeed, if she lied, and was found to have done so, that would be counterproductive to the Crown case and, therefore, to the assessment of any entitlement to a discount for her assistance.[10] In my view, there is a difference between her having a motive for agreeing to give evidence for the Crown and having a motive to lie, and her motive should be categorised in the former camp. It does not mean she may not lie, but it does not constitute a circumstance which falls into s 122(1)(c), where there is an obvious motive to lie.[11] For this reason, I consider the standard directions regarding the assessment of evidence and relevance of having told lies will suffice in Georgia Dickey’s case.(Emphasis added.)[9]R v Brown [2018] NZHC 2345 (Ruling No 18 of Dunningham J).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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