Gosnell v R
[2014] NZCA 217
•3 June 2014 at 10.00 am
For a Court ready (fee required) version please follow this link
NOTE: HIGH COURT ORDER GRANTING PERMANENT NAME SUPPRESSION TO SPECIFIED WITNESSES REMAINS IN FORCE.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA436/2013 [2014] NZCA 217
BETWEEN GAVIN JOHN GOSNELL
Appellant
AND
THE QUEEN Respondent
Hearing: 29 April 2014 Court:
Randerson, Stevens and Miller JJ
Counsel:
T Rickard-Simms for Appellant
J C Pike QC and J E Mildenhall for RespondentJudgment:
3 June 2014 at 10.00 am
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Miller J)
GAVIN JOHN GOSNELL v R CA436/2013[2014] NZCA 217 [3 June 2014]
Introduction
[1] Mr Gosnell appeals his conviction for the murder of Hayden Miles at
Christchurch on 22 August 2011.1
The facts
[2] Mr Miles, who was aged 15, was a friend of Mr Gosnell’s then partner, Ms V. On 22 August Mr Miles joined her at Mr Gosnell’s flat for a drinking session. Later that afternoon some tension developed. Mr Gosnell wanted Mr Miles to leave the flat, but Ms V told him to stay. That seems somehow to have led Mr Miles to inform Mr Gosnell that Ms V was only using him and did not like him, and that in turn led Mr Gosnell to inflict a cruel, prolonged and ultimately fatal beating.
[3] The attack stopped and started three or four times, with Mr Gosnell forcing Mr Miles to clean himself up in the intervals (apparently because he was concerned that the police might make a curfew check), and Mr Miles at no time resisting. It began with punching and kicking, after which Mr Miles was told to go to the bathroom and clean himself up. The blows focused on Mr Miles’s face and head, Mr Gosnell saying that he wanted to knock him out but it was not working. Subsequently Mr Gosnell pinned Mr Miles to the ground, bending his arms and legs in an attempt to break them. Toward the end, Mr Gosnell stripped Mr Miles and put him in the shower to clean him up. By this time Mr Miles was not breathing properly and seems to have been barely conscious. While he was in the shower Mr Gosnell grabbed a razor blade and told him to cut his wrists, and also punched and kicked him.
[4] When the assault ended Mr Gosnell dragged Mr Miles to a couch and lay him on it, covering him with a blanket and evidently leaving him to sleep it off. The next morning, however, Mr Miles was found to be dead. His facial injuries were so
severe that one witness could not tell his gender.
1 He also appeals his sentence of life imprisonment with a minimum period of 18 years, but no separate submissions were advanced in respect of it. See R v Gosnell [2013] NZHC 1313.
[5] When Mr Gosnell realised that Mr Miles was dead he became anxious. He took steps to conceal the crime by disposing of the body. He brought a tarpaulin into the house and placed the body on it, then turned the radio up in case, he said, Mr Miles woke up. He dismembered the body with a knife and jigsaw, displaying some of the parts to Ms V before placing them in plastic bags. He accompanied these displays with laughter. Mr Gosnell then buried some of the body parts in two separate but recent graves in a nearby cemetery, and some in the back yard of his flat.
[6] It took the police some time to discover what had happened to Mr Miles. Mr Gosnell was interviewed by the police on three occasions, all by video recording. We record at this point that Mr Gosnell claimed in evidence before us that there was a fourth video interview, but we reject that claim. We did not find him credible. Further, such interview would be a matter of record, and it is not. During the first two interviews he denied doing Mr Miles any harm, but during the third, which took place after the remains had been recovered, he admitted the beatings and dismemberment. He explained that he had not intended to kill and panicked when he realised that Mr Miles was dead.
The trial
[7] There were a number of meetings between Mr Gosnell and his then counsel, Mr Ruane, before trial. Having regard to the grounds of appeal, we need not summarise all of the evidence about these meetings. It suffices to say that in the record of meetings and correspondence between counsel and client there was no evidence of an instruction that Mr Gosnell was to give evidence. On the contrary, there is evidence that trial counsel advised him that he might need to do so. The only other matter of moment is that Mr Ruane mounted an unsuccessful objection to the admissibility of the evidence of Mr Gosnell’s former partner, Ms T, the gist of which is that he had told her some years earlier that he wanted to kill someone who was not likely to be missed and dismember the body, burying parts in a cemetery.
[8] Ms V deposed to what Mr Gosnell said and did during the assault and afterward. We have summarised this evidence earlier. However, she also said that
Mr Gosnell stated that he was just trying to knock Mr Miles out, that Mr Gosnell had taken Mr Miles into the shower and turned it on because Mr Miles evidently could not breathe properly and was not really awake, that Mr Gosnell had “just lost it” after Mr Miles had made his unfortunate remark, that Mr Gosnell put Mr Miles on the couch after the incident and had covered him with rugs or blankets, evidently expecting that Mr Miles would sleep there for the night, that Mr Gosnell then said something along the lines that Mr Miles had better leave in the morning and not come back, indicating that he thought Mr Miles was still alive, and that the dismemberment was done in panic. The evidence thus laid a foundation for absence of murderous intent.
[9] The pathologist, Dr Sage, opined that the cause of death was probably a complication of inflicted head injuries, either an acute subdural haemorrhage or swelling from bruises to the brain surface. His evidence included a diagram of a skeleton showing where the body had been dismembered, but the jury were not shown postmortem photographs or images of the body in situ. In cross-examination he accepted that there was no evidence of sufficient force being used to break bones, that the way in which Mr Miles was laid on the couch might restrict airflow, exacerbating the pre-existing injuries, and it was possible although not likely that positional asphyxia was the major operating cause of death.
[10] The three video interviews were played. During the third Mr Gosnell admitted beating Mr Miles, as we have summarised earlier, but he also insisted that he had not meant to kill and expressed remorse. He said that he snapped when Mr Miles said Ms V was only using him for money, and was then unable to stop. He said that when the beating ended he walked Mr Miles to the couch and put him there so that he could sleep, and positioned his head so that he would not choke if he vomited during the night. He explained the dismemberment by saying that he panicked.
[11] The trial before Chisholm J began on 8 April 2013, and the Crown case ended on Friday, 12 April. It is common ground that throughout the trial Mr Ruane had taken the view that it would be imprudent for Mr Gosnell to give evidence, and had communicated that view to Mr Gosnell. By the close of the Crown case Mr Ruane’s
view was that a foundation had been laid for reasonable doubt about murderous intent, and that Mr Gosnell could not add anything that he had not already said in his third video interview. He advised Mr Gosnell firmly against going into the witness box. Shortly before the Crown closed its case he had Mr Gosnell sign instructions stating that he did not wish to give evidence. On Monday the 15th of April the defence accordingly elected not to give evidence.
The grounds of appeal
[12] Mr Rickard-Simms advanced three general grounds of appeal:
a) counsel error, in that Mr Gosnell wanted to give evidence but “felt pressured” not to do so at the last moment, and in that Mr Ruane indicated to the jury that even he thought Mr Gosnell had a reckless intention;
b)that the Court was wrong to let evidence subsequent to Mr Miles’s death go to the jury, that the prosecutor placed great emphasis on the dismemberment, and that the prejudicial effect of this was insurmountable; and
c) that the evidence of Ms T was not propensity evidence and the Court erred in permitting it to go to the jury.
[13] Two further grounds of appeal, namely that Mr Gosnell was denied his counsel of choice and that the venue ought to have been changed, were abandoned.
Trial counsel error
[14] We begin by setting the issue in its proper context. The appellate question, posed by s 385 of the Crimes Act 1961, is whether there has been a miscarriage of justice. In some cases the answer may be informed by evidence that is new, in the sense that the jury did not hear it. To that end, an appellate court may receive new
evidence as a matter of discretion, where the court finds it necessary or expedient.2
2 Crimes Act 1961, s 389.
[15] The appellate court assesses new evidence for credibility, freshness, and materiality to verdict.3 As this Court pointed out in Witehira v R, the authorities are unsettled as to whether the screening is done to determine admissibility or as part of the court’s substantive inquiry.4 The former approach has traditionally been taken to evidence that might have been led at trial. As a matter of practice, appellate courts have long taken the latter approach to evidence of counsel error, which almost by definition could not be led at trial.5 The two approaches merge where, as here, the error concerns counsel’s failure to call evidence at trial. In such cases the appellate court usually treats the new evidence as fresh if persuaded that counsel error explains its absence from the record.
[16] An appeal may succeed, in the end, even though counsel’s conduct is found to be reasonable or the new evidence is found not to be fresh.6 The court ultimately focuses on the outcome, asking whether the verdict is unreasonable.7 An appellant is normally bound by decisions reasonably made by counsel, or by the appellant on counsel’s reasonable advice, although such decisions might have affected the result.8
Of such decisions, the election to give evidence, or not, is usually the most prominent.9 Where the appellant was advised and there were reasonable grounds for the election, the appellate court will ordinarily hold that there was no miscarriage.10
[17] In this case, Mr Gosnell contends that counsel effectively denied him the option of giving evidence. Mr Rickard-Simms did not argue in the alternative that the advice was wrong, but Mr Gosnell clearly believes that it was; in his opinion, it
was essential that he give evidence about his state of mind at the time of the killing.
3 This is the order adopted in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 but other cases take a different approach, depending on the circumstances.
4 Witehira v R [2011] NZCA 255 at [28]–[40]; see also Sungsuwan v R [2005] NZSC 57, [2006]
1 NZLR 730 at [7] and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
5 Fairburn v R, above n 4, at [33].
6 Sungsuwan, above n 4, at [70]; Zhang v R [2013] NZCA 87.
7 Sungsuwan, above n 4, at [69].
8 R v Scurrah CA159/06, 12 September 2006 at [18]; R v Pointon [1985] 1 NZLR 109 (CA), cited in Sungsuwan, above n 4, at [45].
9 See for example R v Pointon, above n 8, and V (CA107/2008) v R [2012] NZCA 14.
10 R v H (CA177/02) CA177/02, 21 September 2004; Dalhousie v R [2011] NZCA 486.
Refusing to allow Mr Gosnell to give evidence
[18] Mr Gosnell and Mr Ruane swore affidavits and were cross-examined before us. Mr Gosnell maintained that he was sure all along that he wanted to give evidence. He deposed that Mr Ruane agreed that he had to do so because it was the only way he could get across to the jury what he was thinking at the time. He said that Mr Ruane wrote him a letter stating that he had to give evidence. He had given evidence before and understood what was involved. Mr Gosnell said that on the last morning of the Crown case Mr Ruane saw him in the cells and said that Mr Ruane had thought about it and that it would not help if he gave evidence. Mr Gosnell admitted signing an instruction but stated that this was not what he wanted. He said that he was stunned that he was not giving evidence and felt pressured to sign it. He claimed that the prison guards who were present would say that he did not want to sign it, although he did not name the prison guards or produce evidence from them.
[19] We do not accept this evidence. It has to be said that we found Mr Gosnell a most unsatisfactory witness. His own account was incredible and argumentative. He went so far as to deny having anything to do with the killing. He claimed that Mr Ruane had conspired with the police to convict him and he repeatedly called Mr Ruane a liar. We have already mentioned his claim that there was a fourth video interview which the police and Mr Ruane had conspired to keep from the Court. There is no letter advising that Mr Gosnell must give evidence; on the contrary, Mr Ruane expressly left the matter open in his written advice before trial.
[20] We accept Mr Ruane’s evidence that before and during the trial he gave advice that Mr Gosnell probably should not give evidence. Shortly before the Crown case closed he took instructions after expressing the quite firm advice that he could not improve his position by giving evidence. We are satisfied that although counsel gave firm advice he did not convey the impression that it was not Mr Gosnell’s choice to make; rather, he discussed the pros and cons and advised that he did not think Mr Gosnell could improve his situation by going into the witness box. Mr Gosnell accepted that advice.
Advising Mr Gosnell not to give evidence
[21] We address the question briefly having regard to Mr Gosnell’s evidence before us. We are satisfied that no error was made in this case. We observe that Mr Gosnell did not point to any further evidence that he might have given. The premise of his appeal was that in a case where murderous intent was the issue he had to go into the witness box. That is manifestly incorrect. As with all other elements of the crime, the Crown must prove intent beyond reasonable doubt. The foundation for an argument that reasonable doubt existed had already been laid in the Crown case. Mr Ruane had formed the view that Mr Gosnell would do himself no favours if he went into the witness box, and Mr Gosnell’s evidence before us confirmed the wisdom of that opinion.
Allegedly admitting recklessness in closing address
[22] In his closing address Mr Ruane made the following remarks:
The Crown has to prove either that Gavin Gosnell meant to cause Hayden’s death or he meant to cause a bodily injury that he knew was likely to cause death and was reckless whether death ensued or not and to some extent the Crown’s trying to have a bob each way although I think it tends to be verging towards the reckless murder rather than the intentional murder. It’s for the Crown to prove beyond reasonable doubt to your satisfaction, beyond reasonable doubt, one or other of those definitions of murder. It’s not enough for you to think that this was a dreadful assault on a vulnerable boy which it was, there’s no doubt about that, but you have to be satisfied before you can convict of murder that Gosnell either intended to kill Miles or knew that what he was doing was likely to kill him, likely to cause his death and, essentially, carried on regardless.
[23] Mr Rickard-Simms submitted that the phrase “to some extent the Crown’s trying to have a bob each way although I think it tends to verging towards the reckless murder rather than the intentional murder” was an admission that Mr Gosnell had acted recklessly. We do not agree. The antecedent of the pronoun “it” is the Crown, not the killing. When the closing address is read as a whole it is perfectly obvious that Mr Ruane was not conceding either intentional or reckless murder. We observe too that the Judge fairly summarised the defence case, stating in part that:
The third point, burden and standard of proof. Well, I have covered this. Mr Ruane mentioned that the Crown has to prove either that the accused
meant to kill Mr Miles or that he was reckless, and I think Mr Ruane said, well, the Crown were ‘having a bob each way’. Well the Crown only has to establish one or other, and so whether you regard it as a ‘bob each way’ is probably a bit beside the point.
[24] For these reasons we think there is no possibility of the jury having been led to believe that Mr Ruane was conceding murderous intent.
[25] We leave the topic of counsel error by remarking that in our opinion
Mr Ruane handled a difficult trial with commendable professionalism.
Trial Judge error
Admitting evidence of dismemberment
[26] Mr Rickard-Simms contended that the Judge was wrong to admit evidence of the dismemberment of Mr Miles’s body. He characterised the evidence as “horrific”, saying it must strongly encourage the jury to use the evidence as proof of prior intention to kill. He noted that Chisholm J allowed the jury to take the dismemberment into account when determining their verdict on the murder charge, and emphasised that the Crown had adduced a significant amount of evidence about the dismemberment, including evidence that Mr Gosnell displayed body parts to Ms V, laughing as he did so. He accepted that it was permissible for the Crown to prove the dismemberment, but submitted that it could have been done by way of admission pursuant to s 9 of the Evidence Act 2006.
[27] Counsel did not deny, however, that evidence of postmortem conduct may be probative of the offender’s state of mind at the time of the killing. That is how the evidence was used in this case, pursuant to a pre-trial ruling made by Whata J on
21 February 2013.11 The jury were clearly told by the trial Judge that intention had
to be assessed at the time of the killing, not subsequently.
[28] We accept that the evidence was shocking. It was nonetheless probative, and not illegitimately prejudicial. As the Crown submits, the evidence of dismemberment can be interpreted as part of a continuum which includes the
sustained and clinical assault. An inference may be drawn from Mr Gosnell’s attitude toward the body that Mr Gosnell had not panicked but rather was continuing to behave in the same manner. We do not accept that the Crown made more of the evidence than was fair. It was used to give the jury the narrative, to establish the cause of death (which was disputed), and to establish intent. The Crown did not seek to add unnecessarily to the impact of the evidence by producing post-mortem photographs.
Admitting propensity evidence
[29] The evidence of Ms T was the subject of an objection to admissibility before trial, and a ruling also given by Whata J on 21 February 2013.12 Because it had been suggested that she was not reliable and was motivated by an improper purpose, the Judge allowed her to be called and cross-examined. He found her reliable and credible.13
[30] She deposed that Mr Gosnell had told her that he wanted to kill someone “just to say that he had done it”, that the victim would be buried in a graveyard, having first been cut up so the body parts could be put in different places, that he would target someone who would not be missed by their family, and that he wanted her assistance in luring someone back to their house so that he could kill that person. The statements may have been made as long as nine years before Mr Miles’s death.
[31] Counsel were in agreement before Whata J that the evidence was probative, indeed strongly so. It went to Mr Gosnell’s state of mind when he attacked Mr Miles. The Judge took the view that it was not strictly propensity evidence, but he took guidance from the law on propensity. He identified strong linkages between the prior statements and the circumstances of Mr Miles’s death and dismemberment. He accepted that the jury might react unfairly and adversely to the dismemberment and also to a history of domestic violence which Mr Ruane submitted would need to
be the subject of cross-examination. The Judge found, however, that the probative
12 Pre-trial ruling, above n 11.
value of the evidence was high and any unfairly unprejudicial effect could be suitably mitigated by jury directions.14
[32] On appeal, Mr Rickard-Simms did not contend that the evidence was propensity evidence as defined, but he did argue that Ms T was not reliable, she had a motive to lie, no other witness suggested that such a conversation took place, the conversation is said to have happened on only one occasion, some considerable time previously, and the evidence was extremely prejudicial; further, the warnings given to the jury about it by the trial Judge were not strong enough.
[33] We reject these submissions. Nothing said justifies interfering with the finding of Whata J that Ms T’s account was reliable, certainly sufficiently so to go to the jury. The Crown contends that it was offered not as propensity evidence but rather on the basis that it was directly relevant to state of mind and its probative value outweighed any unfairly prejudicial effect for purposes of ss 7 and 8 of the Evidence Act. We accept that submission. We do not need to decide whether the evidence was propensity evidence as defined. As it happens, Chisholm J treated the evidence as propensity evidence and gave an orthodox propensity direction in which he detailed why the Crown said the evidence was relevant, and why the defence said it was not. He cautioned the jury that unless the evidence demonstrated a propensity to act in a particular way at the time of the offence it must be put to one side, and emphasised that the propensity evidence alone could not establish murderous intent. We do not accept that anything more was required.
Decision
[34] The notice of appeal was filed two days late. There being no objection, we extend time to appeal.
[35] The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent.
3