Charlesworth v Police - [2018] NZHC 1051

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2018-485-19

[2018] NZHC 1051

BETWEEN
TIMOTHY STUART CHARLESWORTH

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 April 2018

Counsel:

A Dye and K Pedder for Applicant

A R Garrick and T C Bain for Respondent

Judgment:

15 May 2018

JUDGMENT OF SIMON FRANCE J

[1] Mr Charlesworth seeks leave to appeal a decision of the District Court declining to order excisions from the defendant’s evidential interview.1 Each of the three challenged passages consists of a question and a “no comment” answer. The contended bases for exclusion are that the exchanges are irrelevant and therefore per se inadmissible, or alternatively their potential prejudicial impact far outweighs any probative value.

1 New Zealand Police v Charlesworth [2018] NZDC 2761.

CHARLESWORTH v POLICE [2018] NZHC 1051 [15 May 2018]

[2] Mr Charlesworth is charged with five counts of possessing objectionable publications. The images had been stored on a computer owned by Mr Charlesworth’s former wife.

[3] The transcript of Mr Charlesworth’s interview consists of 33 pages. The first few pages, as is customary, traversed the history of exchanges prior to the commencement of the formal interview. There then occurred this exchange, which is the first of the challenged passages (the challenged lines are in italics):

BNEssentially is the process we had to do then. Um, got you a coffee and I advised you that ah I would want to speak to you about this on DVD.

TC Yep.

BN And you asked to speak to a lawyer, so we got the duty list. TC Yep.
BNAnd you’ve had an opportunity this morning to speak to Shane ROBINSON I understand.

TC Yes.

BNCool okay. So now, now we’re at this point of coming through to this room.

TC Yep that’s alright.

BNCool alright. So… Tim I’ll just get you to tell me about when you have viewed any child exploitation images from the internet.

TCUnder advice of my attorney this morning I’m not to make any statement at this stage. Um, yeah.

BN (Writing)

TCAnd the attorney from this list was quite um, quite emphatic on that for the time being so.

BNOkay. Um, so just to be clear, um, if I’m to ask you any questions, you don’t, you don’t want to be providing any answers at this time.

TCDepends… depends, depends on the nature of the question obviously but yeah.

BN Okay.

TCUm, I was advised not to, so he was um, he ah, ensured it. Knows more about the process than I do so.

BNOkay. Well look I’m not going to go against that advice and, and um, that’s…

TC Hmm.

BN …that’s your right. TC Yeah.
BNUm, and I’ll just remind…

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.

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Details

Case: [2018] NZHC 1051
Decision Date: 15 May 2018

CaseChat Overview and Summary

The case of Charlesworth v Police involved an application by Mr. Charlesworth to appeal a decision of the District Court, which had declined to order excisions from the defendant's evidential interview. The contested basis for exclusion was either that the exchanges were irrelevant and therefore inadmissible, or that their potential prejudicial impact far outweighed any probative value. The legal issues in this case were whether the three challenged passages, which consisted of questions and "no comment" answers, should be excluded from evidence, and whether the potential prejudice outweighed any probative value of the evidence.

The court found that pre-trial conclusions about relevance and irrelevance should be approached with caution, as the trial is dynamic and the defendant is not constrained by pre-trial events. The court noted that the potential for prejudice was not enough to warrant exclusion of evidence, and that the probative value of the evidence may only be known once the witness has testified. The court also observed that the "no comment" answers may have probative value in impeaching the credibility of the defendant's trial testimony, but the opening to legitimately use silence is narrow and dependent on the defendant testifying and the content of the evidence. The court concluded that the challenged passages should not be deleted as they had a role within the interview and carried no prejudice.

Ultimately, the court granted leave to appeal but dismissed the appeal. The court observed that this sort of minor matter was not suitable for pre-trial appeal and it was better to wait and see what happens at trial. In the normal course of events, the court would not give leave to appeal.

Orders