Hannigan v R
[2012] NZCA 133
•3 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA639/2011 [2012] NZCA 133 |
| BETWEEN SHANE DANIEL HANNIGAN |
| AND THE QUEEN |
| Hearing: 22 February 2012 |
| Court: Wild, Ronald Young and Andrews JJ |
| Counsel: J M Ablett-Kerr QC and G Iddamalgoda for Appellant |
| Judgment: 3 April 2012 at 10.30 am |
JUDGMENT OF THE COURT
The appeal, which is against conviction only, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Hannigan appeals against his conviction in the Dunedin District Court for arson. He was tried before Judge Kellar and a jury. His contention is that he did not get a fair trial as a result of three things:
(a)The admission of evidence that he had attempted to set fire to the kitchen in his house on two previous occasions. Mr Hannigan submits this evidence was inadmissible, and would not have been admitted had the prosecution sought a ruling as it should have done.
(b)The prosecution being allowed to cross-examine one of their own witnesses. The point here is that no application was made to have that witness declared hostile, but the Crown nevertheless impeached the witness in closing to the jury.
(c)The verdict was unreasonable and was not supported by the evidence.
The third point is consequential upon the first two. It adds s 385(1)(a) to s 385(1)(c) of the Crimes Act 1961, as the basis for the appeal.
Background
Mr Hannigan and his partner (now wife), Ms Kirsty White, owned a modest home at 31 Eskvale Street in south Dunedin. The couple had one child and were expecting a second. They wanted to move to Mosgiel to be close to Ms White’s parents. They had listed their property with a firm of real estate agents, which was conducting open homes. Mr Hannigan and Ms White were living elsewhere during this marketing period. The marketing was not going well. The house had a small, inadequate lean-to type of kitchen which prospective buyers found unattractive.
The indictment on which Mr Hannigan faced trial charged that he had:
… on the 21st day of June 2009 at Dunedin, intentionally damaged by fire immovable property, namely a dwelling house situated at 31 Eskvale Street, Dunedin with intent to obtain a benefit.
PARTICULARS: Insurance payout.
The Crown case was that the fires Mr Hannigan lit on 21 June were his third successive attempt to burn down or damage the kitchen of the house, so that he and his partner could obtain insurance monies to replace it with an adequate kitchen. The first attempt was on 14 June, when Mr Hannigan turned the elements on the stovetop to high and left them on, before locking up the house and leaving. The second attempt was on 20 June, when Mr Hannigan piled small pieces of wood and fabric onto the elements on the stovetop and again turned them to high before securing the house and leaving.
The third attempt — that charged in the indictment — was on the following day, 21 June. Mr Hannigan piled more pieces of wood and fabric on the stove elements and left them on, and also set fire to a blanket in one of the kitchen cupboards. The police and the fire brigade were called. This somewhat condenses the events of the morning of 21 June traversed in evidence at the trial.
After investigating, the Fire Service determined that the fires on 21 June had been deliberately lit. Mr Hannigan’s insurance company declined his claim under the fire policy for damage to the kitchen.
The defence case was that Mr Hannigan had not started any of these fires.
Inadmissible evidence?
Ms Ablett-Kerr QC’s argument can be summarised in this way:
(a)Evidence of the alleged “attempts” to set fire to the kitchen on 14 and 20 June 2009 was propensity evidence, as defined in s 40(1) of the Evidence Act 2006.
(b)Accordingly, the Crown should have applied (presumably under s 344A of the Crimes Act) for a ruling as to the admissibility of this evidence.
(c)Had the Crown applied, the evidence would have been ruled inadmissible. Its probative value was outweighed by the risk that it would have an unfairly prejudicial effect on Mr Hannigan. Further, the “merging” of the background or propensity evidence created an unavoidable risk that the jury would give disproportionate weight to the background evidence in reaching their verdict.
(d)If, contrary to (c), the propensity evidence was ruled admissible, there needed to be a direction by the trial Judge as to its proper use. There was no direction, or at least no adequate direction.
The starting point in addressing these submissions is to look at the use the prosecution made of the evidence about the events of 14 and 20 June. At the start of his closing address to the jury, the prosecutor referred to this evidence saying:[1]
That’s really relevant background for you to put into the mix when deciding whether the Crown has proved the charge relating to the 21st of June.
…
The issue I suggest is simply who set the fire on the 21st of June.
[1] Crown closing at 2.
Later in his closing, the prosecutor made these uses of the evidence about the events of 14 and 20 June:
(a)Opportunity: On each of those days Mr Hannigan was inside the house, and had the opportunity to turn on the stove elements and (on 20 June) to pile flammable materials on top of the elements. No-one else had that opportunity: the house was securely locked up and there was no sign of forced entry.
(b)Motive: On each of the two occasions, as on 21 June, the fires or attempted fires were “clearly focused on the kitchen”.[2] Mr Hannigan had a motive to want to burn down the kitchen: it was the sticking point to the sale of the house. No-one else had that motive, and it was improbable that any other arsonist would repeatedly attempt to burn down only the kitchen.
(c)Similarity: On each occasion, as on 21 June, the stove elements were left on. So there was a similarity about the method adopted in all three attempts to set the kitchen on fire. This strongly suggested that the same person was responsible for all three attempts.
[2] Crown closing at 12.
We revert now to Ms Ablett-Kerr’s submissions as we have summarised them in [9] above. We accept Ms Ablett-Kerr’s first submission, that the evidence about the events of 14 and 20 June was propensity evidence as defined in s 40(1) of the Evidence Act. Provided the jury accepted that Mr Hannigan was the culprit on 14 and again on 20 June, the evidence tended to show his propensity to try to set fire to the kitchen. It could also be contended that it demonstrated that Mr Hannigan had “a particular state of mind”: he had it in mind to set fire to the kitchen in order to damage it to the extent that insurance proceeds could be claimed and used to replace the kitchen with a better one, making the house saleable.
We do not accept Ms Ablett-Kerr’s second submission, that an application was required before the propensity evidence here was admissible. Ms Ablett-Kerr based this submission on s 43(2)–(4) of the Evidence Act, contending that the Crown can only lead propensity evidence once the Court has ruled it admissible. We consider the position is this:
(a)When the Crown proposes to call propensity evidence, it should ask the defence whether the proposed evidence is objected to.
(b)If it is, the Crown should seek a ruling under s 344A of the Crimes Act. In giving that ruling, the Court is required to carry out the balancing stipulated in s 43 of the Evidence Act.
(c)If the defence consent[3] to the admission of the evidence, it will be admissible under s 9 of the Evidence Act. However, this does not relieve the Judge from the task of ensuring that the trial is fair. In particular, it does not relieve the Judge from the task of ensuring that the general exclusion in s 8 is complied with. In practice, this may require the Judge to conduct an inquiry similar to that under s 43. We note that McGrath and William Young JJ in Mahomed v R expressed the view that “there is little or no practical difference between ss 8 and 43 [of the Evidence Act] balancing tests”.[4]
[3]Express consent will, obviously, satisfy this requirement. “Implied” consent, including consent implied from a lack of objection, may also satisfy this requirement: Howe v Auckland District Court HC Auckland CIV-2009-404-3021, 9 September 2009 at [31].
[4] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [67].
We do not know whether, before the trial, the Crown asked Mr Hannigan’s counsel whether the defence objected to the propensity evidence. If there was an inquiry, we assume there was no objection, because Mr Hannigan’s counsel took no objection to the propensity evidence at any point during the trial. There is nothing in this submission because, as we are about to hold, any application to admit the propensity evidence would have been granted.
We reject Ms Ablett-Kerr’s third submission, that the evidence of what occurred on 14 and 20 June would have been ruled inadmissible had application been made. The evidence was patently relevant to and highly probative of the Crown case that Mr Hannigan was the arsonist on 21 June. If accepted, the evidence had Mr Hannigan making two earlier, similar attempts to set fire to the kitchen. One of those was on the previous day, the other just a week earlier. Those attempts were “inextricably linked to the alleged offending” on 21 June, to adopt wording used by McGrath and William Young JJ in their judgment in Mahomed.[5]In terms of s 43(3)(a), (b), (c) and (f), the evidence was probative because the three events had a strong connection in time, bore strong similarities, and were somewhat unusual. Without knowing of the attempts of 14 and 20 June, the jury would have an incomplete picture and could not sensibly and justly have reached a verdict.
[5] At [56].
We regard any corresponding risk of unfair prejudice to Mr Hannigan arising from the 14 and 20 June evidence as non-existent, or at most minimal. We say that because this was not a situation where evidence of other offending, distant or at least discrete in time, was being adduced to the jury. That is the more common, and perhaps “classic”, propensity evidence situation. And it is not this case.
We also do not accept Ms Ablett-Kerr’s fourth submission, that Judge Kellar needed to direct the jury as to the proper use of the propensity evidence. Propensity evidence is not one of those situations listed in Part 3, Sub-part 6 of the Evidence Act where a direction by the Judge to the jury is required. While she accepted this, Ms Ablett-Kerr’s reliance was on this passage in the judgment of McGrath and William Young JJ in Mahomed v R:
[91] A propensity evidence direction is required where the Crown is:
(a)relying on propensity reasoning and in doing so is invoking ideas about coincidence or probability; and/or
(b)the evidence involves aspersions on the character of the appellant in respects not directly associated with the alleged offending.
As well, a propensity evidence direction should be given where, without it, there is a danger that the jury will not realise the relevance of the evidence in question or there is some particular risk of unfair prejudice associated with the evidence.
For completeness, we add [92]:
[92] On the other hand, and as the corollary of what we have just said, where the evidence in question, although still falling within the Act’s “propensity evidence” definition, is not led primarily in reliance on coincidence or probability reasoning, a specific direction may well not be required.
Ms Ablett-Kerr said paragraph [91](a) applied here. She contended that the Crown case was that it would have been a remarkable coincidence if it was not Mr Hannigan who started the fires on 21 June, if he was the person who left the stove elements on on 14 June, and again on 20 June after piling flammable materials on top of them.
We do not think that was the Crown case. Rather, it was this:
(a)It was Mr Hannigan who set the fires in the kitchen on 21 June. He alone had both the opportunity and the motive to do it.
(b)Supporting that conclusion is the evidence about the events of 14 and 20 June. Mr Hannigan was the only person who had both the opportunity and the motive to turn the stove elements on to high on 14 June, secure the house and leave it. On 20 June, it was again only Mr Hannigan who had both the opportunity and the motive again to turn the stove elements on to high, this time piling flammable materials on them before locking up the house and leaving.
As William Young and McGrath JJ pointed out, the width of the s 40 definition of propensity evidence encompasses evidence led “for reasons which primarily do not invoke orthodox similar fact reasoning”.[6] We agree with Ms Preston that the evidence of the events of 14 and 20 June is squarely within “scenario two” described by William Young and McGrath JJ, where the evidence is simply circumstantial.[7] As those two Judges pointed out:[8]
In such a case, the relevant propensity attributed to the defendant is not really a stepping stone on the way to a conclusion that the defendant is guilty. Instead the conclusion that the defendant has such a propensity is essentially a corollary — and thus down-stream — of a finding that the charges have been made out.
[6] At [84].
[7] At [85](b).
[8] Ibid.
Thus, if the jury found that it was Mr Hannigan who left the stove elements on 14 June, and again on 20 June, and who set the fires on 21 June, then it could conclude that Mr Hannigan had a propensity to attempt to set fire to the kitchen in his home. It is not Mr Hannigan’s propensity to attempt to set fire to the kitchen that points to him being the arsonist on 14, 20 and 21 June.
Given this, we conclude that the evidence was not led primarily in reliance on coincidence or probability reasoning. Therefore no specific direction was required. We reject this first ground of appeal.
Improper challenge by Crown to veracity of its own witness
The Crown called Mr Hannigan’s partner, Ms White. In her evidence-in-chief, when asked who had gone into the property on 20 June, Ms White replied “Um, Shane did. I stayed in the car”.[9]
[9] Notes of evidence at 55/33.
In cross-examination, in relation to her visit to the house with Mr Hannigan on 20 June, this exchange took place:[10]
QMy apologies. Mr Hannigan is the one delegated to go and do the check round the house?
AYes.
QAnd he’s just gone a minute checking the outside is he?
AYes, he is.
QHe couldn’t go inside, could he, you had the –
AI had the key.
[10] Notes of evidence at 85/18–24.
Before the prosecutor re-examined Ms White, the jury put this question to the Judge:[11]
On Friday — Kirsty stated on 20th she stayed in car while he checked for 1–2 mins inside.
But today — Kirsty said she stayed in car with keys and he only checked outside.
Could this please be clarified.
[11]This question has been obtained by Ms Preston from trial counsel, and was provided to us under Tab 2 of the Crown Bundle of Authorities.
There followed a lengthy discussion between the Judge and counsel, with the jury out. This ended with the Judge directing in these terms:
… What I think we should do is put it to her on the basis that you asked her in-chief whether Mr Hannigan went into the property and she said, “Yes he did”. “In cross-examination Mrs Stevens asked you whether Mr Hannigan went into the house”, perhaps placing the emphasis on that, to which she said that he did not. Can she explain the difference. It may be, depending upon her answer, that you can put to her her prior statement that was not consistent with her evidence in cross-examination, but I think in fairness you should put to her also that she made a statement to police just shortly after the incident on the 21st of June in which she’d made no reference one way or t’other to going into the house or property. And following that I would certainly give Mrs Stevens the right at least to cross-examine her further.
The prosecutor then re-examined Ms White. He reminded her of what she had said in chief, and then in cross-examination. He then asked her to clarify what she meant. Ms White answered:[12]
I was meaning he [Mr Hannigan] went onto the property not physically inside the house.
[12] Notes of evidence at 108/16–17.
The prosecutor then reminded Ms White of what she had told the police in a statement made about five days after the fire on 21 June. There was this exchange:[13]
QDo you recall in that statement that you said to the detective in respect to this visit on the 20th, “I waited in the car at this time. Shane went inside the house and also just to look around as we had been doing”. Do you recall that?
AI recall that interview, I don’t recall exactly that but I’ve, from my memory just went round the outside of the house.
[13] Notes of evidence at 108/28–33.
Then the prosecutor put to Ms White a statement she had made earlier, on the day of the fire. The notes of evidence record:[14]
QDo you recall saying to that constable, “We were last at our house in 31 Eskvale Street on Saturday morning at 10.30 am.”?
AYes.
Q“When we were there, we checked all the windows and doors to make sure they were locked and secure.”
AYes.
QDo you recall saying that?
AYeah, I think so, yeah.
[14] Notes of evidence at 109/25–32.
There was then this exchange between the prosecutor and Ms White:[15]
QIn fairness to you, Mrs Hannigan, I want to give you the opportunity to explain the differences between the evidence on Friday, the evidence today and the two statements which appear to say different things don’t they?
A(no audible answer 12:38:15).
QCan you explain why the statement to the police on the 21st, the day of the fire, says that you both, or that, “We checked all the windows and doors”, but that your statement five days later says that you stayed in the car?
ANo, I can’t. It was very hard at that time. I don’t know whether we were just saying we or things, just …
QSecondly, can you explain why the statement on the 26th of June says, “Shane went inside and looked around just as we had been doing”, but then today you’ve said he didn’t go inside?
AUm, I thought he didn’t but I could be just getting my days mixed up. I can’t recall right now.
[15] Notes of evidence at 110/4–19.
The prosecutor’s closing address to the jury, dealing with these parts of Ms White’s evidence, included the following:[16]
Well, with all due respect, Mrs Hannigan was all over the place on that point [the visit to the house on 20 June].
…
Now I’m not suggesting Mrs Hannigan is a dishonest person. But I’m suggesting that where she had the opportunity in her evidence, she was doing what she could to assist her husband. Understandable.
…
As I said, I’d suggest this is because in reality Mrs Hannigan was a witness who was friendly to the defence.
…
The reality is she gave a number of different versions of that visit and her very final answer ought to have left you with real doubt as to her reliability. I’d suggest she simply can’t remember. But she’s drawn to the version that best supports her husband’s case.
[16] Crown’s closing at 6–8.
We do not accept Ms Ablett-Kerr’s submission that the prosecutor’s re-examination of Ms White “offered evidence to challenge [Ms White’s] veracity”. We therefore do not accept that s 37(4) of the Evidence Act was engaged. Section 37(4) prevented the prosecutor offering evidence challenging Ms White’s veracity unless the Judge had determined that she was a hostile witness.
Similarly, we do not accept that the prosecutor’s closing address to the jury sought to impugn Ms White’s veracity. Indeed, the prosecutor expressly told the jury that he was “not suggesting [Ms White] is a dishonest person”. He certainly questioned the accuracy and reliability of her evidence, given the inconsistency between what she had said in her evidence-in-chief, and what she had said under cross-examination, compounded by the further inconsistency between those two versions on the one hand, and, on the other hand, what Ms White had stated to the police on two successive occasions both very close to 21 June 2009.
The prosecutor was perfectly entitled to clarify, in re-examination, what Ms White had said under cross-examination. And there could be no objection to the prosecutor re-examining in a manner which cast doubt on the reliability of Ms White’s evidence. Reliability and veracity are distinctly different concepts.
Quite apart from that, had the prosecutor not clarified Ms White’s evidence, then the jury’s question obliged the Judge to do so. What occurred was necessary and proper, and in no way gave rise to a miscarriage of justice.
We reject this second ground of appeal.
Was the verdict unreasonable?
We also reject this third ground of appeal. The evidence pointed strongly to Mr Hannigan being the person who turned the stove elements to high on 14 June, and then locked up the house and left. Only he had the opportunity and the motive to do that. The evidence pointed even more strongly to Mr Hannigan being the person who again attempted to set fire to the kitchen on 20 June, this time by putting flammable material on the top of the stove elements before turning them to high and again securing the house and leaving it. Again, Mr Hannigan was the only person with both the opportunity and the motive to make that more sophisticated attempt to set fire to the kitchen.
The following day, 21 June, Mr Hannigan was again the only person with both the opportunity and the motive to set further fires in an attempt to destroy or seriously damage the kitchen of the house. Those three successive, similar but escalating, attempts to set fire to the kitchen added up to a Crown case against Mr Hannigan that was nothing short of overwhelming.
Result
As none of the three grounds of appeal has succeeded, the appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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