Maney v The Queen
[2005] NZCA 203
•11 August 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA244/03
THE QUEEN
v
GAIL DENISE MANEY
Hearing:21 February 2005
Court:Anderson P, Williams and Salmon JJ
Counsel:P J Kaye for Appellant
K Raftery and L Freyer for Crown
Judgment:11 August 2005
JUDGMENT OF THE COURT
This appeal against conviction is dismissed.
REASONS
(Given by Anderson P)
[1] This appeal against conviction for murder has been reheard in consequence of the decision of the Privy Council in R v Taito [2003] 3 NZLR 577.
[2] Ms Maney was convicted on a retrial before Paterson J and a jury in the High Court at Auckland on a count that, together with Stephen Ralph Stone, she murdered Deane Wade Fuller-Sandys. A previous trial, presided over by Williams J, had resulted in her conviction but that was set aside on an appeal to this Court. We record that Ms Maney, by her counsel, Mr Kaye, indicated she took no issue with Williams J sitting as one of the Judges on this appeal rehearing.
[3] On the first trial, Stone was convicted not only of murdering Mr Fuller-Sandys but also of raping and murdering Leah Stephens. The Crown alleged that Stone murdered Deane Fuller-Sandys at the behest of Ms Maney and in the presence of witnesses who included Leah Stephens; and that he later killed Leah Stephens because she had become a risk to him and, it would seem, to serve as a warning to the other witnesses.
The Crown case at trial
[4] In August 1989 Mr Fuller-Sandys drove away from his home in West Auckland with the intention of doing some surf casting at Whatipu. Some time later his car was found in the car park at that beach but Mr Fuller-Sandys himself was missing. His body has never been found.
[5] In about February 1997 the Police received information which led them to make inquires about the fate of Mr Fuller-Sandys. These disclosed sordid and murderous activities involving Stone, Ms Maney and a number of associates.
[6] Stone was associated in some strong-arm way with a Karangahape Road strip club. A disc jockey at the club was X and one of the frequenters of the club was Y. These three men became accomplices in criminal activities such as drug dealings and burglaries.
[7] Leah Stephens, a prostitute, worked at the club as a stripper. Other prostitutes, Tania Wilson, and Ms Maney, had a sexual relationship with Stone. As Tania Wilson put it in her evidence in chief at trial, “We had a threesome”. She and Ms Maney began living together in Ms Maney’s rented house at 22 Larnoch Road, Henderson. From about early August 1989 Stone often stayed for a few nights at a time at that house. According to Tania Wilson’s evidence at trial, Stone was involved with drugs and possessed a number of small hand guns.
[8] Also living at the Larnoch Road house was the appellant’s brother, Colin Maney. Another frequent visitor was Mark Henriksen who was convicted, on the retrial, of being an accessory after the fact in relation to the murder of Deane Fuller-Sandys.
[9] The occupants of 22 Larnoch Road knew Mr Fuller-Sandys. Tania Wilson said in her evidence at trial that he would come around to the house for reasons which included selling drugs to Ms Maney. Sometimes he attended parties at the house.
[10] One evening in early August 1989, when the occupants of the house were at a party elsewhere and the property was unoccupied, a burglary occurred. Leather goods, money and drugs were stolen. The following morning Ms Maney, Tania Wilson, and another woman, Carolyn Lyman who at that time had recently had a casual sexual encounter with Mr Fuller-Sandys, made inquiries of a neighbour, Ms Salle. The neighbour had seen a man come to the house, jump over a terrace and enter the property through a doorway. She described the person as having slicked back hair tied in a ponytail, olive coloured skin and wearing leathers. From this description Ms Maney concluded that the burglar had been Deane Fuller-Sandys and she confronted him about the matter a few days later in the Westward Ho Tavern in West Auckland. He denied involvement.
[11] According to Tania Wilson’s evidence at trial, she and Ms Maney discussed the matter with Stone and Ms Maney asked Stone to “do a hit”, that is, to kill, Deane Fuller-Sandys.
[12] Carolyn Lyman was instructed by Ms Maney to telephone Deane Fuller-Sandys and ask him to come around to the Larnoch Road house. He arrived there en route to his intended fishing expedition. He was confronted by Stone who verbally abused him and beat him to the ground. According to Y’s evidence, Gail Maney kicked him several times with quite hard kicks when he was on the ground. Then Stone produced a hand gun and shot the victim who probably died at that time. In order to make the other men complicit in the murder, Stone required Colin Maney, X, Y and Henriksen to fire shots into the body of the victim. Shortly afterwards Stone ordered Tania Wilson, Carolyn Lyman and Colin Maney to put Deane Fuller-Sandys’ body into the boot of Colin Maney’s car. The five men then drove to the Woodhill Forest area near Muriwai beach and buried the body. Later Stone arranged for Colin Maney to drive Deane Fuller-Sandy’s car to Whatipu.
[13] A few days later, Y told Stone that Leah Stephens was getting quite nervous and talking about what had happened at Larnoch Road. He, X and Stone drove to Upper Queen Street and picked up Leah Stephens. Stone abused Leah Stephens, warning her about narking. The men drove to a house where Stone raped this victim and murdered her with a knife. The three men then put the body in the boot of the car and drove to the Waitakere Ranges where the body was buried. Leah Stephens’ remains were discovered in 1992.
Crown evidence at trial
[14] Carolyn Lyman, Tania Wilson, X and Y all gave evidence for the Crown after being granted immunity from prosecution by the Solicitor-General. There is a congruence in the essentials and particulars of their evidence which, unless their testimony had been collusively scripted, enhances the reliability of each. But the contextual evidence is confirmatory. For example, Ms Salle’s evidence of Gail Maney’s reaction on hearing the description of the intruder is very consistent with the evidence of both Carolyn Lyman and Tania Wilson on that issue. Ms Salle’s evidence was as follows:
Did you tell the girls or Gail and her friends what you had seen?…No I turned round and at the time I just informed them their friend had turned up, they actually asked me what he looked like and they knew who he was because he was a friend of theirs.
You say you gave a description – can you recall what you said in terms of the description?…I said to the girls that their friend had come down, then they said what did he look like, I told them and next minute they turned away from me and started talking between themselves as if I wasn’t there.
Can you remember what you said to them by way of a description?…The person had slicked back hair, his hair was flat pushed back, with leathers on, olive coloured skin.
Anything about the hair…Tied right back, like ponytail.
You say the girls then commenced to talk amongst themselves?…They did we had finished but Gail actually got quite hostile.
Did you overhear any of that conversation…As they walked away I can remember Gail turning around, they were not talking away but away from me they more or less said they said they had been ripped off or something like that.
[15] Carolyn Lyman gave evidence which included the following:
Of a conversation between Gail and the woman you refer to as Kathryn?…Yes.
Could you hear what was said?…Gail had asked if Kathryn had seen anybody as she had been burgled, Kathryn’s reply was a description of a man.
Are you able to remember anything about that description?…That he was wearing dark clothing.
What did Gail Maney do, if anything after that?…After we had spoken to the neighbour we all went back to her house, and discussed who it was.
Did Gail Maney say anything in that regard?…Yes it was suggested that it was Dean from the description.
Who suggested that?…Gail
How would you describe Gail?…Angry.
After that can you recall whether or not you saw Dean Fuller-Sandys?…Yes.
Who of you went to confront him?…Gail, Tania and myself.
Did you find him there?…Yes.
Was there a conversation with Dean Fuller-Sandys?…Yes.
Who took part in that conversation?…Gail.
Can you recall whether or not Tania took part?…I don’t remember.
Can you recall what the conversation was about?…The burglary.
Tell us who said what?…Gail asked Dean if he had committed the burglary and he said No.
What was Gail’s attitude when that was said?…She didn’t believe him, she was confrontational.
Can you be more specific about what you mean?…In your face, you did it, we know it was you, we’ve got a description.
[16] Tania Wilson’s evidence was as follows:
As a result of that, did you do anything?…We went next door to a lady called Kathryn.
Who did?…Myself, Carolyn Lyman and Gail Maney and we asked Kathryn if she had seen anyone that night and she described a guy with a ponytail and leathers.
Did she say anything more about what she had seen?…No.
Was there any discussion amongst you young women about what she had said…While we were standing at Kathryn’s doorstep Gail said Dean and then we left, went back to the house and she said it was Dean, she said he had it in her mind it was Dean.
How would you describe Gail Maney at that time?…She was very aggro….
As a result of that did something else happen?…Yes.
What else occurred?…We went to the Westward Ho.
Westward Ho?…Approximately 4-5 days after.
Was there a reason for you going there?…Yes.
What was that reason?…To confront Dean Fuller-Sandys.
Did he used to go there?…He was a regular there.
Did you find him there?…Yes.
Was he with anybody else or not?…He was with Richard Holloway and some other companions.
What happened when you saw him?…We took him to a side and said you ripped us off. He denied it, I really looked into his eyes and had different opinions that it wasn’t him, I left it as it was but Gail Maney was still heated up and she still continued to say it was him, you burgled us.
What kind of attitude did she have at that time?…Aggro as usual.
[17] Richard Holloway gave evidence. He said that he had been to parties at 22 Larnoch Road and approximately three to five times Deane Fuller-Sandys was also present. He was introduced there to Gail Maney. He had first met her at the Westward Ho Tavern, usually in the company of Tania Wilson. About three weeks before Deane Fuller-Sandys went missing he and Deane were drinking in the garden bar of the Westward Ho Tavern. Gail Maney and Tania Wilson called Deane over and spoke to him. He returned to Richard Holloway a couple of minutes later, “looking a bit agitated”.
Defence evidence at trial
[18] Ms Maney gave evidence at her trial. She denied ever having met Deane Fuller-Sandys. She denied that he had ever come to her house or had done drug deals with her. She denied ever drinking at the Westward Ho Tavern prior to August 1989. She denied that Deane Fuller-Sandys had been present in her garage when he was shot or assaulted saying, “No, those things never happened”. She denied kicking Deane Fuller-Sandys. If any credence were to be given to her testimony, several friends, including one who was very close to both Stone and Ms Maney, have, independently of each other, concocted in considerable detail a wicked and entirely fictional story accusing their friend of arranging the murder of someone she did not even know and taking steps to assist in the removal of his body from her house. Moreover, that story was confirmed in material respects by others who are beyond any hint of possible collusion.
[19] One of the witnesses called on behalf of Ms Maney was an acquaintance, Ms Arnott. She recalled a conversation she had in early 1993 with Tania Wilson. She had been asked by Tania Wilson to go to where Ms Wilson was then living, and on arrival she found Tania Wilson and Carolyn Lyman fighting. She said they were intoxicated. She testified:
…They were trying to do a line on me and were trying to tell me how hard a life they had had to try and get some money from me. It eventuated that they said that they had put a body in a boot of a car.
Q Where did that happen?…My recollection of this is very very unclear, I had a recollection of Laingholm Huia and I can’t remember but I do have a recollection of it.
Q Did you ask them any further questions about that matter?…I just was shocked and tried to think whether it was true or not or whether it was a manipulation and how they got involved in something like that.
Q What was the reply?…Tania did most of the talking and she said it was her boyfriend at the time.
Aftermath – “new evidence” on this appeal
[20] The appellant seeks leave to adduce “new evidence” on this appeal. It comprises affidavits by Tania Wilson and Mr W J Bradley.
[21] On 3 July 2003 Tania Wilson swore an affidavit recanting the statements and evidence she had given inculpating Gail Maney. She asserted that she has not been threatened or coerced into making the affidavit. She said that one night Stone arrived at the Larnoch Road house in a car, accompanied by Colin Maney. She, Gail Maney and Carolyn Lyman were inside the house drinking. Stone came in and said he had a body in the boot of the car. He asked them if they wanted to have a look. They could see a car “backed down the slope to the garage a bit with the boot open”. She testified “You really couldn’t see what was in there or identify it as a body”. Colin said he had to break a leg to get the body in the boot. The car was Stone’s car and a short time later the two men left the house. She said a couple of days later the Police raided the house and she was arrested for possession of LSD. Then Stone cleaned the boot of his car because he was worried about blood being in there. She says she saw some blood in the boot and Stone washed it out with a hose.
[22] With reference to consulting a neighbour, she said over the next few months there were parties and a burglary where drugs and leathers were stolen and that was when a neighbour said she saw someone with a ponytail going into the house. This particular aspect of her evidence, if accepted, would be confirmatory of defence evidence about the timing of the approach to Ms Salle.
[23] Tania Wilson’s explanation for the evidence she gave at the trial was that she was pressured into it by Police officers, one of whom showed her statements made by X and Y. The statements had portions marked in green and she just agreed with them. She said that she and Carolyn Lyman were left alone at the Police Station and talked about the case. Both were frightened of going to prison and losing their children and they agreed to say that Deane Fuller-Sandys was shot as the Police and X and Y had said. The Police had told her, she said, she would be charged as an accessory if she did not say what her statement had said; and unless she did say what was in the statement, she would not get immunity.
[24] Mr W J Bradley was a detective sergeant in the New Zealand Police, Criminal Investigation Branch, until he resigned from that force at the end of 1983. In more recent years he has been in business as a private investigator, in which capacity he was engaged on behalf of defendants prior to the deposition hearing in about 1999. His responsibilities included tracing electrical and drainage permits for Ms Salle’s house as well as other material on the basis of which the defence at trial sought support for a proposition that the approach by Gail Maney to Ms Salle to inquire about the burglary occurred after Deane Fuller-Sandys disappeared. Plainly, if that had been the case, the Crown case imputing a revenge motive for the murder of Deane Fuller-Sandys, relating to a burglary by him, would be unsustainable. By its verdict, the jury must have rejected the defence proposition as not reasonably possible.
[25] Mr Bradley also deposed that he was contacted by Susan Murray, a friend and supporter of Gail Maney. As a result of what Susan Murray told him, he went with Susan Murray to the home, at that time, of Carolyn Lyman. In a discussion with him Ms Lyman said she was not living with Gail Maney at the time of the alleged death; did not know Deane Fuller-Sandys; did not see anyone shot at Larnoch Road; did not know Leah Stephens; and did not know X or Y. Mr Bradley deposed that Carolyn Lyman told him the Police said she would be charged as an accessory and that is why she agreed with what the Police had told her. She said she had pressure coming at her from all sides, that she was held at a Police Station for six hours and her daughter was given to some lady from Social Welfare while five Police had her in a room and just kept at her. She said she was not frightened of the Police but was frightened about what Stone would do if she told the truth, and she said she had not rung Deane Fuller-Sandys to get him to come to Larnoch Road. Nor had she seen him killed or in the boot of the car.
Crown response
[26] For the purposes of this appeal the Crown filed an affidavit sworn by Detective Inspector Mark Franklin, the officer in charge of the particular investigations. He deposed that on 29 April 1997 the Police interviewed Tania Wilson, Carolyn Lyman, Gail Maney and Colin Maney. Only Tania Wilson provided a statement, the essence of which was that Stone had arrived at 22 Larnoch Road with a body in the boot of a car some time in 1989, a few weeks prior to a search warrant being executed at that address by the Police. Such a warrant was executed on 26 September 1989 which would place the alleged incident in August or September. As Police inquiries continued, further statements were made by Tania Wilson. Then, as Detective Inspector Franklin has deposed:
An important break through in the Police enquiry came on the 1st of July 1997 when Tania Wilson gave a further (fourth) statement about matters. By this time, because of pressures on her from others, she was in the witness protection programme. In that statement she told how a few weeks before Stephen Stone (and others) killed Deane Fuller-Sandys there had been a burglary at 22 Larnoch Road and as a result of the description given by a neighbour (the witness Kathryn Salle) Gail Maney identified the burglar as Deane Fuller-Sandys. Later she (Miss Wilson) was present when Gail Maney confronted Deane Fuller-Sandys about it at the Westward Ho Tavern, but he denied it. Still later she heard Gail “put a hit on” Deane by asking Stephen Stone to kill him, which he agreed to do.
[27] That statement is wholly consistent with material aspects of Ms Wilson’s evidence at trial. Significantly, Ms Wilson provided this information when she had been given protection from others who had been pressuring her.
[28] Detective Inspector Franklin deposed that in April 1998 the Police had been contacted by Y, who gave a statement saying he had witnessed the murder of Leah Stephens by Stone. He amplified that statement with later statements.
[29] On 28 May 1998 Tania Wilson was shown, at Detective Inspector Franklin’s direction, limited portions of X’s statement – first where he indicated her presence in the garage at the time of the killing and second, a reference to helping to dispose of the body. His purpose was to show her that they were not tricking her in any way and that they did have information showing what had happened. However, he says, he was extremely careful to ensure that she was shown as little as possible so that if the information they had from X was correct Tania Wilson could confirm it and provide details which would be unprompted by anything she had read. He denies that he ever bullied Tania Wilson in any way and deposes that he did not see any Police officers do so.
[30] Ms Wilson wished to discuss the question of immunity and also requested to see her solicitor. Detective Inspector Franklin deposes that he could not give her any assurances about immunity but he did ensure that her solicitor, Mr Nicola, was contacted. He came to the Police Station and had a lengthy time in private with Tania Wilson. At the end of that she was willing for the interview to continue and to provide a further statement. Mr Franklin left Detective Danby to take that statement in the presence of Mr Nicola.
[31] There was an affidavit by Mr K Danby, who was a member of the Police, stationed at Henderson Police Station, at relevant times but has since retired. He deposed that in interviews Ms Wilson was cautioned because it was proper in the circumstances to do so, having regard to the indications of some criminal implication and the relevant events. He disputes that she “just agreed” with anything. He confirms that on 28 May 1998 she spent a considerable time alone with her solicitor and then agreed to make a statement in his presence. He annexed the statement which acknowledges that it had been read to her by her lawyer who had also witnessed her signature.
[32] An affidavit by a former detective, Ms McColl, deposed that she was present on three occasions when Police visited Tania Wilson and that Ms Wilson was always treated with courtesy and a professional manner. There was never any mention by Ms McColl or in her presence concerning Tania Wilson’s children.
[33] The Crown also filed an affidavit sworn by Mr H Lawry, an experienced prosecutor working for the Crown Solicitor in Auckland. He was one of the prosecutors at the trial of the appellant. He deposed that Tania Wilson received independent advice from a lawyer, Mr Roger Chambers. We recognise Mr Chambers as a very experienced and senior member of the criminal bar in Auckland.
[34] Following that, the Crown received a request for immunity from prosecution. The request was passed on to the Crown Law Office and immunity was eventually accorded.
[35] Mr Lawry deposed that on the morning of 18 May 2000 he met Tania Wilson in the room adjoining courtroom 12 at the High Court in Auckland where he was introduced to her by Detective Inspector Franklin. He spoke to her about the importance of giving truthful evidence. Mr Cato, who led for the Crown, read through the grant of immunity and emphasised on at least three occasions that the protection afforded by the grant applied only if she gave truthful evidence. Mr Cato told Tania Wilson that he was not concerned whether or not the evidence helped the Crown so long as she gave truthful evidence. Mr Lawry deposed that the same process was employed in relation to the witness Carolyn Lyman.
[36] The Crown produced an affidavit from Inspector W Searle showing that, in about December 2000, Tania Wilson was in Mt Eden Prison at the same time as Gail Maney and that in fact the two women were in adjacent cells. The appellant had been convicted and sentenced to life imprisonment on 1 May, so this occurred some months later.
Oral evidence on appeal
[37] Tania Wilson gave oral evidence for several hours on the hearing of this appeal. She confirmed the contents of her affidavit in which she had deposed, in effect, that a false statement, inculpating Gail Maney, had been extorted from her by Police pressure and that she now wished to try to undo the wrong she had caused to Gail Maney. She denied that she had ever seen Gail Maney with Deane Fuller-Sandys at the Westward Ho Tavern.
[38] Early in her evidence in chief there occurred an exchange which suggested that when she was in prison in September 2000 she had talked with Gail Maney. The notes record:
Was there a period when you were in prison?…Yes there was.
Was that around September 2000?…Yeah, 1999-2000.
Did you talk to her about the Police and your behaviour in connection with the Fuller-Sandys’ matter?…That they had bullied me into telling lies.
[39] A little later in her evidence, when asked again about her time in prison, she said that she had not seen Gail Maney at all. When asked if in any direct or indirect manner she had communicated with Gail Maney she said she had not. She acknowledged, however, that she had received a letter from Gail Maney, about a month into her own sentence but she could not remember what it said, only that Gail Maney was pregnant with twins.
[40] Tania Wilson was cross-examined about one of her earlier statements to the Police when she had referred to Stone turning up at the Larnoch Road house saying that there was a body in the boot of his car. Ms Wilson said she could definitely see that it was a body in the boot but could not identify the clothing or whether it was Caucasian or Mäori.
[41] Later in cross-examination the following exchange occurred:
Because you did have something to be scared of, didn’t you?…Yes.
Which was that you had an involvement [to this extent]?…Yes.
You’d actually spoken about that involvement over the years between the murder in 1989 and seeing the Police in 1978 hadn’t you?…Yes.
To Dave Arnott, Deana Arnott?…Yes.
And of course what you told Deana Arnott was that you actually had to force the body into the boot, you, Tania Wilson?…Yes that was because of drugs, because of drugs and being drugged, we thought it would give Deana a bit of a fright. It wasn’t nice to say something like that.
And you have a pretty graphic description about how you, Tania Wilson, had to squash the body into the boot, and force it in?…I didn’t mention no names.
You had to jump on it didn’t you?…Yes.
Of course the police weren’t involved at this stage?…No.
And you weren’t scared of them at this time when you were speaking to Deana Arnott?…No.
And you could believe what Deana Arnott told you, she was a straight up honest woman?…Yes.
So do I understand what you were saying, when you were talking about this murder to Deana Arnott, you were telling lies?…I was telling lies about me and Carolyn jumping on some body, but there was a body in the back of that boot.
[42] As mentioned earlier, Ms Wilson had made a statement to the Police in the presence of her solicitor from whom she received private advice. In her oral evidence she sought to dismiss the implications of that on the basis that she believed the solicitor was in league with the Police. Similarly, when advised by Mr Chambers, an independent and senior member of the criminal bar, on the implications of the Solicitor-General’s grant of immunity, she again sought to explain her conduct away on the basis of a belief that Mr Chambers was also in league with the Police. We found her explanations about Mr Nicola and Mr Chambers entirely unconvincing.
[43] Mr Bradley was called for cross-examination. In the course of it the following very significant exchange occurred:
You have been giving assistance to the defence in this case for quite some time, haven’t you?…Yes, a number of years.
You were first engaged in 1997 by lawyers for the defence?…Adam Couchman for Mark Hendriksen. It was the second trial I became directly involved with Ms Maney.
I think you were acting for Mark Hendriksen before the first depositions hearing?…Yes I believe so, yes.
As part of that exercise I think you went around with some of the lawyers for the defence to Larnoch Road?…Yes, we tried to do a scene reconstruction of the body in the boot of the car.
Because the first depositions was based on the body in the boot rather than the shooting in the garage?…Yes, it changed after our reconstruction.
You’d read her statement and you knew where she claimed she was standing when she saw the body in the boot?…Yes, where the three of them were standing.
And from your reconstruction your view was that couldn’t have seen what she claimed to have seen?…Yes.
And even when you moved to the dining room window she couldn’t have seen what she claimed to have seen?…Yes.
Discussion
[44] Mr Kaye took time to analyse the evidence at trial relating to the timing of Gail Maney’s approach to Ms Salle. We apprehend this was not to challenge the rationality of the jury’s verdict in the light of the defence case on that issue. Rather, it was to seek support for the proposition of cogency in respect of Tania Wilson’s evidence sought to be adduced on this appeal. This is because the premise for both the appellant and the Crown on this appeal is that the appeal must fail unless the “new” evidence of Tania Wilson and, possibly, that in respect of Carolyn Lyman should be admitted on this appeal. If it were it might, although not necessarily, render the guilty verdict unsafe.
[45] For such evidence to be admitted this Court must be led to the view that it is just to do so. That means, conventionally although not necessarily exclusively, that this Court must be satisfied that the proposed evidence is fresh and also credible and cogent. See, for example, R v Zachan, CA304/94, 11 August 1995, which reiterates the established jurisprudence.
[46] In this case we are not troubled by the requirement of freshness. Should a witness recant significant evidence at trial, freshness is not likely to be an issue.
[47] Nor are we too concerned about cogency in the sense of probative and logical significance in terms of the Crown’s case. But credibility, which is often linked with cogency in terms of qualitative value, is a pivotal issue on this appeal.
[48] To be blunt, we consider that Tania Wilson’s fresh evidence is utterly lacking in credibility on all relevant matters put in issue.
[49] One way or another, she is a false witness; whether at trial or before us. Our task is to decide in which Court she has not given true evidence on relevant matters. We find her essential evidence before us is the false version.
[50] It is the case that her demeanour before us was entirely unconvincing. But demeanour may be unfavourably perceived and yet be an unreliable guide. For example, nervousness, linguistic difficulties, distraction or fatigue may contribute to an unfavourable impression. Every member of the present bench has had considerable experience as trial counsel and Judges, and understands the equivocality of a poor general impression. This is why more objective criteria of veracity or falsity need to be considered.
[51] We see these criteria in a number of respects.
[52] First, Ms Wilson’s assertion that she was forced, by Police techniques and pressure, into reciting an untrue story in conformity with a Police reconstruction of events does not conform with our favourable impression of the Police witnesses which gainsay that assertion.
[53] Second, we reject Ms Wilson’s explanation concerning her belief that two experienced members of the criminal bar in Auckland were in league with the Police. The suggestion by Ms Wilson is just unbelievable. It is consistent with the clear impression on our part that she had sufficient cunning to realise she had to find some explanation for her conduct in the light of such legal advice.
[54] Third, Ms Wilson’s trial evidence about a confrontation at the Westward Ho Tavern is confirmed by an independent party, Mr Holloway. He also gave evidence about Deane Fuller-Sandys attending parties at Larnoch Road. That is inconsistent with Ms Maney’s blunt denials of that at trial, and Ms Wilson’s attempts on the appeal to give support to such a possibility.
[55] Fourth, Tania Wilson’s evidence before us, reflecting an earlier and therefore rehearsed story, that Stone had brought around a body in a car boot which Ms Wilson saw, is in total conflict with Mr Bradley’s evidence showing that Ms Wilson simply would not have seen any such thing.
[56] Fifth, Tania Wilson’s story of having been pressured by the Police in 1997-1998 into giving a false account of what had happened is in material conflict with Ms Arnott’s evidence about what Tania Wilson and Carolyn Lyman had told her four or five years previously, when there was no Police involvement. What they told Ms Arnott was an unsolicited confirmation of a material aspect of their trial evidence.
[57] Sixth, we accept that Ms Wilson and Ms Maney were in nearby cells in Mount Eden Prison in the latter part of 2000, some months after Ms Maney’s conviction. This was not long after Ms Wilson had come off a witness protection programme which was in place, not just for the first trial when Stone was in the dock but the second when only Gail Maney and Mark Henriksen were. On Ms Wilson’s own, probably improvident, admission in examination in chief before us, she discussed the case with Gail Maney. Obviously she sought to excuse herself in the near presence of her former intimate friend by attributing her evidence to Police pressure.
[58] Seventh, the Solicitor-General’s grant of immunity from prosecution was not premised on the giving of evidence incriminating anyone, but only on the giving of truthful evidence. And Tania Wilson well knew that.
[59] Eighth, Gail Maney wrote a letter to Tania Wilson while they were both in Mount Eden Prison. This was an unauthorised communication in terms of disciplinary rules. Ms Wilson’s evidence that Ms Maney simply informed her about details of her pregnancy beggars belief. Her evidence suggests that a close friend, who had been sentenced to life imprisonment on the supposedly false evidence of Ms Wilson, simply wrote about domestic and maternal news, rather than with recrimination. The letter was not given in evidence, nor any reason why not. We reject the proposition as incredible.
[60] We are reinforced in that conclusion by the fact that shortly after the letter Tania Wilson was visited by two supporters of Gail Maney. Following that, Ms Wilson accepted arrangements to tell a different story.
[61] Why Ms Wilson should recant her former evidence is a matter of speculation. It may be a response to pressures from Gail Maney and/or her supporters. There is evidence to show reason for Ms Wilson to be fearful of criminal reactions to her testimony. She had frightening, criminal associations. She had been in a witness protection programme. And, when she was giving evidence before us, she said that she was frightened of Gail’s family.
[62] Or perhaps Tania Wilson now regrets helping to convict her friend; or regrets a lapse from the staunchness expected in criminal circles.
[63] What is abundantly clear to us, however, is that Ms Wilson’s essential evidence on this appeal is unworthy of belief and we will not admit her “fresh” evidence for that crucial reason.
Carolyn Lyman
[64] As to Mr Bradley’s evidence about what Carolyn Lyman told him, we do not of course take any issue about what he said happened. But what he deposed to was hearsay, quite untested by even examination in chief, let alone cross-examination. It has no objective cogency at all. Further, we note that another of Gail Maney’s supporters made the contact and was present during Mr Bradley’s interview.
[65] What Carolyn Lyman told Mr Bradley just does not square with relevant evidence at trial. This includes, for example, the evidence of Gail Maney’s associations with Deane Fuller-Sandys and a confrontation with him at the Westward Ho Tavern. Also, that she did not know Leah Stephens. This “evidence” is consistent, not with truth, but with an understandable human desire to put behind one a terrifying and otherwise traumatic event. It would take more than such tenuous hearsay to warrant admission on appeal.
Conclusion
[66] For these reasons we decline leave to admit on the appeal itself the evidence sought to be adduced on behalf of the appellant. That leaves no basis for thinking there has been a miscarriage of justice. The appeal must therefore be dismissed.
Solicitors:
Crown Law Office, Wellington
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