Moffat v R
[2009] NZCA 437
•25 September 2009
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA196/2009
[2009] NZCA 437THE QUEEN
v
ASHLEIGH JORDAN MOFFAT
Hearing:4 August 2009
Court:William Young P, Baragwanath and MacKenzie JJ
Counsel:P H B Hall and K H Cook for Appellant
K A L Bicknell and E J Watt for Crown
Judgment:25 September 2009 at 12.30pm
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS
Baragwanath J [1]
William Young P [38]
MacKenzie J [62]BARAGWANATH J
[1] Following his trial for the murder of Wayne Kerry Bray, Ashleigh Jordan Moffat was convicted with five others of manslaughter. He appeals against his conviction on the ground that the trial Judge, Cooper J, erred in ruling that his counsel could not lead evidence as to the previous convictions of his co-accused.
[2] The issue, submitted by Mr Hall for the appellant to be of consequence to the determination of the trial, concerned the respective roles of the participants in a melée which the Crown asserted included the appellant. The appellant denied involvement. He contends that his cross-examination of a co-accused, Mr Jamieson, would have assisted the jury to conclude that the fatal blows inflicted upon the deceased derived from Mr Jamieson, who might have been convicted of murder. He reasons that the more powerful the evidence to that effect the greater the likelihood that the jury would convict Mr Jamieson. That, he submits, would equally tend to distract the jurors’ minds from the Crown theory that the appellant was involved in the killing. He submits that the Evidence Act 2006 retains the policy of the former common law which imposes upon an accused no constraints beyond relevance. When cross-examining a co-accused the remedy for any perceived injustice to the co-accused is, he submitted, not inhibiting cross-examination but severance.
The ruling
[3] This is the relevant passage from the Judge’s ruling:
[17] The statutory test that applies is simply whether the proposed evidence is relevant to a defence raised or to be raised by the party seeking to offer the evidence (s 42(1)(b)). But the permission of the Judge is necessary before a defendant may offer the propensity evidence. The statutory scheme obviously involves the exercise of a judicial discretion even where the evidence might be said to be relevant. To that extent there may very well have been a change to the pre-existing law as a consequence of the enactment of the Evidence Act.
[18] Counsel for Messrs Parker and Jamieson opposed the application contending that the evidence would not in fact be relevant to the defence. All counsel referred in the course of argument to the decision of the House of Lords in R v Randall [2004] 1 All ER 467. As that case shows, the question of whether evidence of this nature is relevant to a defence can raise some difficult issues. However, as I read the leading judgment, that of Lord Steyn, there was approval for the following dictum of Devlin J in R v Miller [1952] 2 All ER 667 at 668:
The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally relevant to inquire into a prisoner’s previous character, and, particularly, to ask questions which tend to show that he has previously committed some criminal offence. It is not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant.
[19] After referring to that passage Lord Steyn went on to illustrate, at [22], the kind of circumstances in which propensity evidence could be relevant and of probative value. He gave as an example a trial involving two accused arising from an assault committed in a pub. Assuming it to be clear one of the two had committed the assault, and one had a long list of previous convictions involving assaults in such circumstances, showing him to be prone to fighting after consuming alcohol, and assuming that the other man had no similar convictions, propensity evidence would plainly have a role as part of the defence of the man with the previously unblemished record.
[20] In such a case the relevance of propensity evidence is plain. This, however, is not such a case. Here there are six accused and the issue raised by each of them is that he was not involved in a group assault apparently committed by the co-accused. It is not a case of there being two suspects between whom it is necessary for the jury to choose, so that it could be said that propensity evidence about one of the co-accused was directly relevant to determining the guilt of the other. Putting this another way, the fact that Mr Jamieson might have a bad previous record does not indicate that Mr Moffat was not involved in the attack and the same applies in the case of Mr Parker.
[21] In the circumstances I am of the view that the proposed propensity evidence should not be called because it is not relevant to Mr Moffat’s defence. If I were wrong in that view I would in any event exercise my discretion against admission of the evidence having regard to what is said in s 8 of the Evidence Act. The permission required by s 42(1)(b) must, I consider, be exercised in accordance with the general provisions dealing with purpose, principles and matters of general application which are set out in Part I of the Act. I consider that there would be a risk in this case of any probative value of such evidence being out-weighed by its unfairly prejudicial effect. The Crown’s case is that the six accused were involved in a joint attack on the victim. A fair trial in my view will be more likely if the jury considers the evidence about what occurred at the time of the assault without evidence principally designed to show the bad character of two of the accused by virtue of their previous convictions.
The Evidence Act
[4] By s 7 of the Evidence Act:
(a)all relevant evidence is admissible in a proceeding unless it is inadmissible or excluded by the legislation;
(b)evidence that is not relevant is not admissible in a proceeding;
(c)evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
[5] Section 8 contains a general exclusion, stating:
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
[6] The evidence Mr Hall sought to lead concerning Mr Jamieson’s record is “propensity evidence” which s 40(1)(a) defines as meaning:
evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; …
[7] Section 40 goes on to state:
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3) However, propensity evidence about—
a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable;
…
[8] Sections 41 and 43 have no application in this case and I mention them to demonstrate the range of policies adopted by Parliament. Section 41 concerns propensity evidence by a defendant about himself. Section 43 concerns propensity evidence offered by the prosecution about defendants. It provides a statutory restatement of the familiar principle that such evidence may be admitted only if its probative value in relation to an issue in dispute outweighs the risk that it may have an unfairly prejudicial effect on the defendant. It requires the judge when assessing the probative value of propensity evidence to take into account the nature of the issue in dispute. It goes on to state:
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[9] The section of primary relevance to this case is s 42, which is couched in very different terms from s 43. It says simply:
42 Propensity evidence about co-defendants
(1) A defendant in a criminal proceeding may offer propensity evidence about a co-defendant only if—
(a) that evidence is relevant to a defence raised or proposed to be raised by the defendant; and
(b) the Judge permits the defendant to do so.
(2) A defendant in a criminal proceeding who proposes to offer propensity evidence about a co-defendant must give notice in writing to that co-defendant and every other co-defendant of the proposal to offer that evidence unless the requirement to give notice is waived—
(a) by all the co-defendants; or
(b) by the Judge in the interests of justice.
(3) A notice must—
(a) include the contents of the proposed evidence; and
(b) be given in sufficient time to provide all the co-defendants with a fair opportunity to respond to that evidence.
[10] So its only conditions (other than those as to notice) are two-fold:
(a)the evidence is relevant to a defence raised by the defendant tendering the evidence;
(b)the Judge permits the defendant to offer it.
[11] Requiring particular consideration here are the extent of the discretion in s 42(1)(b), the difference in language between ss 42 and 43, and the relationship between s 42 and s 8.
The common law
[12] The position at common law was very clear. In R v Randall [2004] 1 WLR 56 (HL) Lord Steyn, delivering the leading judgment, first cleared away evidence that is not relevant. He endorsed at [14] the following statement by Devlin J in R v Miller (1952) 36 Cr App R 169 at 171:
The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally relevant to inquire into a prisoner’s previous character, and particularly, to ask questions which tend to show that he has previously committed some criminal offence. It is not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant.
[13] Where the evidence is relevant, however, the position is otherwise. At [32] Lord Steyn cited with approval R v Murray [1995] RTR 239 (CA) where the driver of one of two cars involved in a collision was charged with reckless driving and of unlawfully wounding. At his trial his application for leave to cross-examine the police officer to elicit the previous convictions of the other driver had been refused on the ground of irrelevance to the issue to be determined by the jury. Those previous convictions included burglary, theft of a shotgun and of a firearm just five years after release from borstal. Defence counsel argued that this driver’s bad record made it more likely that the accused’s account was correct. The Court of Appeal allowed his appeal against conviction on the grounds that the evidence:
…might have assisted the jury in the determination of a fundamental issue, namely, whether the pursuing driver did in fact create such a situation that the appellant did act under duress.
[14] Lord Steyn cited Commonwealth authority to similar effect: R v Kendall and McKay (1987) 35 CCC (3d) 105 (Ont CA); R v Crawford [1995] 1 SCR 858; R v Leon-Uzarraga and Lopes (1998) 123 CCC (3d) 291 (BC CA); R v Suzack and Pennett (2000) 128 OAC 140 (Ont CA); R v Darrington and McGauley [1980] VR 353; R v Gibb and McKenzie [1983] 2 VR 155 (Vic CCA); R v Bannon and Calder Vic SC 21 September 1993.
[15] He added his opinion that:
… where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries.
[16] Lawery v R [1974] 1 AC 85 (PC) is to similar effect. So is Lui Mei Lin v R [1989] 1 AC 288 (PC) where the appellant and two co-defendants were jointly charged with forgery. The Judge ruled that a statement made by one of the co-accused to the police implicating the appellant had been made not voluntarily but as a result of inducements from a police officer and declined to admit the statement. That co-accused gave evidence incriminating the appellant which differed from the statement in material respects. The appellant’s counsel sought leave to cross-examine the co-accused on the inconsistent statement but the application was refused, as was a further application for separate trial of the accused. On appeal the Privy Council held (at 297-298):
The only limit on the right of a co-accused to cross-examine another co-accused in the circumstances is, in their Lordships’ opinion, relevancy. If one co-accused has given evidence incriminating another it must be relevant for the latter to show if he can, that the former has on some other occasion given inconsistent evidence and thus is unworthy of belief …
Counsel for the Crown pressed upon their Lordships the submission that to allow a co-accused complete freedom to cross-examine upon an excluded statement could give rise to difficult questions how far, if at all, a trial judge should explain to a jury why it was that they were suddenly hearing of this statement and perhaps even seeing it for the first time at a comparatively late stage of the trial. This question was touched upon by the Court of Appeal (Criminal Division) in Reg. v. Rowson [1986] Q.B. 174, 182. Their Lordships doubt if it is possible to state general principles which should be uniformly applied in every case where the question arises. But… they are clearly of the view that the trial judge should warn the jury that they must not use the statement in any way as evidence in support of the prosecution's case and that its only relevance is to test the credibility of the evidence which the maker of the statement has given against his co-accused. Their Lordships consider that as a general rule the trial judge should briefly tell the jury why the statement had previously been excluded and cannot therefore be relied upon by the prosecution to prove its case, as for example that it was or may well have been procured by inducement. It should be remembered that in cross-examination as to credit the cross-examiner is bound by the answers which he receives and that it is not legitimate to re-open all the circumstances in which the excluded statement was taken. In many cases, as in the present, the trial judge may well think it right to remind the jury that the maker of the statement may well have a motive for incriminating a co-accused and that his or her evidence should be approached with extreme caution.
It was also suggested on behalf of the Crown that, if cross-examination upon the excluded statement were to be permitted, the trial judge might have to carry out what was described as a balancing exercise, balancing the interests of the maker of the statement against the interests of the co-accused on whose behalf it was sought to cross-examine before deciding whether or not to permit the proposed cross-examination. Their Lordships disagree. In their view the right to cross-examine is, as Lord Donovan stated in Murdoch v. Taylor [1965] A.C. 574, 593, unfettered, the only limit being relevancy. If the statement contains irrelevant matter the trial judge would no doubt insist that the irrelevant matter should not be referred to and, if necessary, excised from any copies of the statement which the jury might be allowed to see.
[17] In R v Wilding CA 104/2005 19 May 2005 this Court followed Lui Mei Lin v R. In that case a co-accused made an out of court statement to the police which the Crown would not have been allowed to lead in evidence against him for the reasons stated in R v Moresi (No 2) (1996) 14 CRNZ 322 (HC). But because it was germane to the defence of the co-accused the statement was admitted at his behest on the simple ground of relevance to his defence.
The construction of s 42(1)(b)
[18] The clear rule of the common law that a co-accused is not to be inhibited in adducing the relevant evidence by its propensity to injure a co-accused was endorsed by the Law Commission in Evidence Law: Character and Credibility (NZLC Preliminary Paper 7 1997).
[19] Importantly, in its report the Law Commission stated:
Propensity evidence and co-defendants
281A … major exception to the propensity rule would apply where one defendant wishes to conduct a “cut-throat” defence and does so by offering propensity evidence about another defendant. Currently one of the common law limits imposed on the evidence which a defendant can offer against a co-defendant is relevance. Of course, all evidence must also be relevant under the Law Commission’s evidence code; … nevertheless, it is still useful for the court to focus specifically on relevance in relation to evidence offered by co-defendants.
282One commentator has proposed that where relevance to the defendant’s defence is shown, the defendant’s right to offer evidence against the co-defendant should be unlimited; but that where such relevance is not shown, the defendant’s freedom to prejudice a co-defendant should be restricted. … The Law Commission believes that this is a useful basis on which to formulate a rule for propensity evidence offered by one defendant against another. Accordingly, the Commission’s proposed code provision (section 20) will require that evidence of propensity offered by a defendant against a co-defendant be relevant to the defendant’s defence. Because the Commission considers that a court should interfere as little as possible with the right of defendants to present a full defence, there will no requirement for a defendant to seek the leave of the court or – in contrast with the existing law (see para 222) – to give notice before offering propensity evidence against another defendant.
[20] Parliament recognised that in codifying the law of evidence questions of interpretation would arise where the purposes and principles would best receive effect by retaining rather than discarding rules of the common law:
10 Interpretation of Act
(1) This Act—
(a) must be interpreted in a way that promotes its purpose and principles; and
(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—
(i) its provisions; and
(ii) the promotion of its purpose and its principles; and
(iii) the application of the rule in section 12.
Section 7 states the fundamental principle that all relevant evidence is admissible. Section 6 states that the purpose of the Act is to help secure the just determination of proceedings by inter alia:
(a)providing for facts to be established by the application of logical rules; and
(b)providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses;
…
Among the rights guaranteed by s 25 of the Bill of Rights is the right to present a defence ((e)).
[21] Read in this light, s 10 justifies construction of s 42(1)(b) as conferring only a limited discretion, which may not be used to deprive an accused of the right to adduce evidence that, in terms of s 7(3), is “of consequence to the determination of the proceeding”.
[22] The result is, as it was at common law, to present something of a dilemma for the court. How can it do justice both to the accused who wants presumably inadmissible evidence to be admitted and to the co-accused who but for the joint trial would not have been exposed to it?
[23] The answer given by the common law was recourse to the severance power if injustice to the co-accused cannot otherwise be avoided. The ordinary principle is that persons charged with a crime should be tried together: R v Gillies and Jorgensen [1964] NZLR 709 (CA). Normally the court will deal with the problem by declining severance but giving a careful direction to the jury, both at the point of admission of the evidence and in summing up. In the case of an out of court admission by the co-accused, the direction will be that it is to be disregarded in considering the case against the co-accused, even though it may be employed in considering the defence of the applicant for its admission. In cases such as Lui Mei Lin and the present case, where the evidence is of the co-accused’s prior convictions, for the reasons given by Lord Steyn ([15] above) it is likely to be unreal to give such a direction. If otherwise admissible, such evidence in the present case would fall within the latter category.
[24] It follows that I disagree with the Judge’s construction of s 42(a). It is therefore necessary to exercise judgment afresh on the point.
Submissions
[25] Competing submissions were advanced. For the Crown Ms Bicknell argued that the appellant was one of a six member group who chased the victim for a substantial distance and beat, kicked and stomped him to death. On its case the appellant was an active party and at least an abettor.
[26] It was the Crown’s submission that the evidence did not have a tendency to disprove anything of consequence to the determination of the proceeding and was rightly rejected.
[27] Mr Hall submitted for the appellant that he had no association with the event beyond that of a spectator. The evidence available in respect of Mr Jamieson was that he had been convicted of offences such as assault, assault with intent to injure and possession of an offensive weapon. Most of the convictions related to incidents in which Mr Jamieson had punched various victims in the head, and in one incident he had punched the victim to the ground, kicked him in the head, and attempted to prevent him from getting away. Mr Hall submitted that this incident bore a striking similarity to the present case, and the evidence should have been admitted as propensity evidence.
Discussion
[28] In point of logic, evidence accentuating the potential response of Mr Jamieson would not tend to include the appellant as a party. It would, however, tend to refocus the case on to Mr Jamieson as one of the prime offenders and conceivably assist the appellant’s argument for disassociating himself from the major responsibility. He relied upon evidence of bystanders that some of the six appeared to hold back and manifest dismay at what was happening. The evidence could have assisted his thesis that Mr Jamieson was the primary killer and that, tactically, a sharper focus on him might have tended to distract attention from the appellant.
[29] While near the borderline, the topic was a matter for jury appraisal and I cannot say that it could not have been of consequence to their determination. I conclude that the Judge erred in excluding the evidence which it was the right of the appellant to put before the jury.
The proviso
[30] The remaining question concerns the application of the proviso to s 385(1) of the Crimes Act 1961:
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The Supreme Court in Matenga v R [2009] 3 NZLR 145 stated the following principle:
[31]…having identified a true miscarriage, that is, something which has gone wrong and which was capable of affecting the result of the trial, the task of the Court of Appeal under the proviso is then to consider whether that potentially adverse effect on the result may actually, that is, in reality, have occurred. The court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only reasonable possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused. Before applying the proviso the Court must also be satisfied that the trial was fair and thus there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights Act.
[31] For the reasons that follow I am satisfied of the appellant’s guilt and that admission of Mr Jamieson’s record could not have led a reasonable jury to alter its conclusion.
[32] The appellant had been at a party at 31 Bouverie Street where he had to be spoken to because of boisterous behaviour. He was very drunk. He left the party with the other accused and went to the corner of Tay and Bouverie Streets a short distance to the south. He cut his hand and there was a blood trail commencing outside 23 Bouverie Street to the south of Tay Street which extended in a trail of blood spots for a distance of some 200 metres to the foot of the hill to the point where the deceased was fatally injured. There was contact between the appellant and the victim evidenced by the presence of the appellant’s blood on three places on the victim’s clothing. While the ESR expert confirmed to the appellant’s counsel that there was no evidence of injury on the victim underlying the point of contact and thus of any blow by the appellant to the victim, in terms of time, place and circumstance the coincidence of the appellant’s blood on the deceased’s clothing places him at the centre of the events which culminated in the victim’s subsequent death in hospital. The appellant’s submission was that he was no more than an onlooker and that the presence of his blood on the roadway where the victim’s shirt buttons were found entailed simple coincidence.
[33] But in addition to the blood stains, cross bearings are available. First, there was Amber Derrett who picked out the appellant’s photograph in a photo montage as being similar to the person involved in the kicking and stomping. Then there is the evidence of Logan Gregory who described a person with a dark tee shirt bearing a circle symbol about the size of a dinner plate chasing him in an aggressive and confrontational manner. Following the incident the appellant was a part of the group who ran from the scene. At the bird aviary Jessica McAskill spoke to the appellant who said he got into a fight with a Crip, a gang with which the victim was associated, and was boasting about it. Similar evidence was given by Shanelle Bain and Kori Dawson. Dayna Fenton also gave evidence that the appellant said he “had just got into a fight” and Laura Carrington said she overhead a conversation in which the appellant said they “had just smashed a guy”.
[34] The appellant’s submission was that there were no eye-witnesses who saw him punch, kick or stomp the victim’s head and that this provided an evidential foundation to his defence, with which the admission of propensity evidence relating to Mr Jamieson was consistent.
[35] It is necessary to evaluate the point. The evidence sought to be elicited about Mr Jamieson was in our opinion only just admissible because it barely met the relevant standard. He was so closely involved that at the least his presence must have contributed to the insensate passion of the members of the group who kicked, punched and stomped the victim to his death and that the appellant must have known that his presence would have that effect.
[36] I am satisfied that, seen not in isolation but in the light of the series of pieces of evidence relied upon by the Crown, a reasonable jury could not have regarded it as materially assisting the appellant’s claim to be a mere onlooker.
[37] I would therefore apply the proviso and dismiss the appeal.
WILLIAM YOUNG P
The role of the Judge under s 42 of the Evidence Act 2006
[38] There is scope for debate as to the role of the trial Judge under s 42.
[39] In the recent report of the Law Commission, Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC R103 2008) at [5.20], the Commission concluded that the additional requirement to relevance under s 42(1)(b), that the “Judge permits the defendant” to offer the propensity evidence, contemplates a balancing, via s 8, of probative value against prejudice. This of course is consistent with approach of Cooper J in this case.
[40] This approach might be thought to conflate the tests under ss 42 and 43, despite their very different language, a point well made by Mahoney and others The Evidence Act 2006: Act and Analysis (2007) at EV42.02(2):
The most important aspect of s 42(1) is its omission of any reference to prejudice. Under s 43(1), propensity evidence about a defendant that is offered by the prosecution must satisfy the test of having a probative value which outweighs the risk of an unfairly prejudicial effect on the defendant…. It is the lack of any such concern… which distinguishes s 42 from s 43.
However, the authors concede that s 8 requires balancing of the probative value of the disputed evidence against its prejudicial effect on the “outcome of the proceedings”. They thus conclude that the judge will need to consider the interests of the defendant offering the evidence and the co-defendant who is subject to the evidence.
[41] The requirement for judicial permission was introduced at the select committee stage of the progress through Parliament of what is now the Evidence Act. The Select Committee’s explanation for this insertion was as follows:
We recommend that clause 38(1) be amended so that a defendant in a criminal proceeding may offer propensity evidence about a codefendant only with permission of the Judge. We consider that the Judge should determine that the propensity evidence is relevant to the defence the defendant raises or proposes to raise before it is admitted.
There is nothing in this to suggest an intention to introduce a balancing exercise.
[42] Broadly, I agree with Baragwanath J as to the limited scope of s 42(1)(b), which I see as intended to ensure that proposed propensity evidence is relevant, to avoid one defendant ambushing another, and to work in tandem with the notice requirements in s 42(2) and (3). It would be a strong thing to prevent a defendant adducing evidence which supports a defence. Indeed I would see such exclusion as inconsistent with s 25(e) and (f) of the New Zealand Bill of Rights 1990. Potential for collateral damage to some defendants is an inevitable corollary of conducting joint trials. This suggests to me that, at least in general, where the choice comes down to admitting evidence which is relevant to the guilt or innocence of the defendant who proffers it, collateral damage to another defendant does not warrant exclusion. The nature of the risk of prejudice which Mr Jamieson faced was, at least broadly, of the same kind (or order of magnitude) as frequently arises in joint trials. As Baragwanath J points out, extreme cases can, if necessary, be addressed by way of severance.
[43] Against that background, I consider that s 8 should be applied in a way which leaves proper scope for the intended operation of s 42. Adopting the distinction drawn by Mahoney and others, I consider that the risk of unfair prejudice which is relevant is “on the proceeding” rather than to the co-defendant. In determining whether there is a risk of such unfair prejudice, s 8(2) requires the Court to allow for the right of a defendant to offer an effective defence (which necessarily includes adducing relevant propensity evidence about another defendant). In this context, the circumstances in which potential prejudicial effect on a proceeding might warrant a refusal to permit a defendant to offer relevant evidence are likely to involve the sort of considerations which might justify severance. In all of this, it is important to recognise that there are strong policy reasons in favour of trying alleged co-offenders together.
[44] It follows that the balancing exercise which the Judge advanced as an alternative basis for his ruling (see [21]) was not appropriate.
Relevance
[45] The more difficult issue for me is relevance. As to this, the Law Commission (in the report already referred to) noted that at [5.19] that while the common law imposed a strict test for relevance, this was not carried into s 42. This is emphasised by the absence of a “substantial helpfulness” test which is expressly provided for in s 39 in relation to evidence of a co-defendant’s veracity.
[46] It would have been open to the jury to conclude that the appellant had been directly involved in the administration of the violence which led to the death of the deceased. I say this given bloodstains which originated from the appellant on the road and footpath and on the clothing of the deceased, the description evidence of a man wearing clothing similar to the appellant who behaved very aggressively either during or immediately after the fatal assault, and the subsequent behaviour and inculpatory admissions of the appellant. If the jury had reached that conclusion, it could have drawn the inference that he had acted with murderous intent. If so, the appellant would have been found guilty of murder as a principal.
[47] The Crown case as to party liability was based on s 66(1). Accordingly, to establish that the appellant was guilty of murder as a party, the Crown had to establish that someone (ie a principal) had inflicted the fatal injuries with murderous intent and also prove that the appellant assisted the principal to do so, knowing that he was acting with murderous intent. If the jury had reached the conclusion that Mr Jamieson had inflicted the fatal injuries and had done so with murderous intent, this may have been to the practical detriment of the appellant as it would leave open the possibility of him being guilty of murder as a party to Mr Jamieson’s attack.
[48] Mr Jamieson’s situation at trial was difficult to say the least, given identification evidence which linked him with the fatal assault and admissions he had made which extended to acknowledgements of having kicked the deceased and stomped on his head. These admissions were supported by text messages sent by Mr Jamieson that appeared to amount to a confession that he had been involved in the assault and knew it had been serious.
[49] There was evidence in the form of admissions (including apparent adoption of admissions made by others and what was said in text messages) in relation to Messrs Kreegher, Anglem and Peters which could have been read as acknowledging participation in the fatal assault. Some of the admissions or texts were in general terms (for instance as to what “we” did) or were disputed. In the case of the final defendant, Mr Parker, there was nothing that directly implicated him in the infliction of the fatal injuries (unless the jury were to conclude that all six attackers had been involved). On the other hand, it would have been open to the jury to conclude that any one or more of appellant and Messrs Jamieson, Kreegher, Anglem and Peters had been so involved.
[50] The appellant’s case at trial was that the attacking party (which consisted of all six defendants) contained those who inflicted the fatal injuries and also a less active group of which he was or may have been a member.
[51] On the hypothesis that there were two such groups, the propensity evidence was material to which of the defendants were likely to be in the more active group; this on the basis that the greater a particular defendant’s propensity to act with gross violence, the more likely he was to have been in the group that had acted with gross violence. Evidence which made it likely that Mr Jamieson had occupied one of the slots in the more active group was thus of assistance to the appellant as tending to reduce the number of slots which he could have filled.
[52] In that context, the stronger the cases against Messrs Jamieson, Kreegher, Anglem and Peters, the less likely a conclusion that the appellant had been a direct participant in the infliction of the fatal injuries, thus significantly reducing the chances of a conviction for murder as a principal and as well providing him with at least an outside chance of an outright acquittal. On the other hand, if the propensity evidence was treated by the jury as being material not only to Mr Jamieson’s alleged participation in the fatal assault, but also to his state of mind, its admission could have been to the ultimate prejudice of the appellant as enhancing his prospects of being found guilty of murder on a party basis.
[53] The balancing of advantage and possible disadvantage to the appellant was a matter for him and his counsel to assess, as they no doubt did. And, as is apparent, I see the disputed evidence as relevant and thus admissible.
A miscarriage of justice?
[54] The conclusion that the evidence was admissible does not necessarily lead to the conclusion that there was a miscarriage of justice. Relevant in this context is what was said in Matenga v R [2009] 3 NZLR 145 at [30] (SC):
The Weiss Court accepted that a miscarriage under our para (c) [of s 385(1)] is anything which is a departure from applicable rules of evidence or procedure. We have hesitated about whether in its statutory context that is the meaning which should be given to the word, lest it might lead to the application of the proviso in a large number of cases. Few trials are perfect in all respects. Frequent use of the proviso may create the false impression that the appeal court is too ready to resort to it despite the existence of a miscarriage of justice. In the end, departing in this respect from Weiss, we consider that in the first place the appeal court should put to one side and disregard those irregularities which plainly could not, either singly or collectively, have affected the result of the trial and therefore cannot properly be called miscarriages. A miscarriage is more than an inconsequential or immaterial mistake or irregularity.
In light of the word “should” which appears in s 385(1)(b), broadly the same approach is required if that subsection is relied on.
[55] Given the present appellate context, the materiality or otherwise of the error must be determined with the benefit of hindsight.
[56] The disputed evidence was primarily relevant as to who had been directly involved in the infliction of the fatal injuries and, in turn, primarily as to the likelihood of conviction for murder. The appellant was, of course, found not guilty of murder. This leads me to the question whether admission of the propensity evidence could have been of assistance to the appellant in securing an acquittal on the charge of manslaughter as well.
[57] Although the evidence was relevant, it was not highly relevant. None of the defendants behaved well in the course of events which led to the death of the deceased. Indeed each displayed a tendency to violence. Further, the evidence already pointed very heavily towards Mr Jamieson having been a direct participant in the infliction of the fatal injuries. Indeed, I think it practically inevitable that the jury so concluded. If so, there was no room for resulting prejudice to the appellant. Indeed, as it turned out, exclusion of the evidence may have been to the appellant’s ultimate advantage (in terms of possible party liability).
[58] It is important to recognise that all of those who participated in the attack on the deceased were defendants.
[59] As is apparent from what I have said, the evidence as a whole did not permit a conclusion that Mr Parker had been directly involved in the infliction of the fatal injuries unless the jury was able to conclude that all six attackers and thus all six defendants had been so involved. Assuming for the moment that the jury did adopt that approach (ie that they had all been involved at the end), the challenged ruling did not prejudice the appellant because such prejudice could only be relevant to determining who was, or may have been, in the less active group. On the jury approach just postulated, there was no such group.
[60] If the jury did not take that approach (which in fact is highly likely) it is also clear that the challenged ruling did not, in the end, prejudice the appellant. This is because all six defendants were found guilty of manslaughter. If the jury were of the view that it was reasonably possible that there was a less active group, the pattern of verdicts makes it clear that the jury concluded that any defendant who was or may have been a member of that group was nonetheless guilty of manslaughter.
Conclusion
[61] For those reasons I would dismiss the appeal.
MACKENZIE J
[62] I consider that the key issue is that of relevance. As William Young P notes at [43], s 8 (and I would add s 7) should be applied in a way which leaves proper scope for the intended operation of s 42. I agree that s 42 does not mandate a balancing exercise of the sort which the trial Judge advanced as an alternative basis for his ruling. However, I consider that s 42 does require a strict assessment of whether the evidence is relevant. Under s 7(3) evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Under s 42(1)(a), the evidence may be offered only if it is relevant to a defence raised by the appellant. Reading those provisions together, I consider that the appropriate test for relevance in this context is that the evidence will be relevant only if it has a tendency to prove or disprove anything that is of consequence to a defence raised by the appellant.
[63] The appellant’s defence at trial was that he did not actively participate in the attack on the victim. His case was that the six defendants essentially constituted two groups, those who inflicted the fatal injuries and a less active group who did not. The proposed propensity evidence in respect of Mr Jamieson could be relevant only to the issue of whether Mr Jamieson was the person, or one of the persons, who participated actively in the attack on the victim. It could not, in my view, have any tendency to prove or disprove the extent of the appellant’s involvement in these events. There was no evidence which established with any degree of precision the existence of two groups, or the numbers involved in the groups. As Cooper J observed, this is not a case of there being two (or more) suspects between whom the jury must choose. The cases against each accused must be considered separately. A finding on the extent of Mr Jamieson’s involvement cannot logically point to any conclusion as to the extent of the appellant’s involvement. There is a risk that the use of the propensity evidence in respect of Mr Jamieson to assist in drawing an inference as to the extent of the appellant’s involvement could lead to a line of reasoning which was not logical.
[64] The appellant’s submission as to the value of the evidence was, as Baragwanath J puts it at [2], that the more powerful the evidence against Mr Jamieson, the greater the likelihood of his conviction, and that might tend to distract the jurors’ minds from the Crown theory that the appellant was involved in the killing. William Young P suggests at [51] that evidence which made it likely that Mr Jamieson had occupied one of the slots in the more active group might have been of assistance to the appellant as tending to reduce the number of slots which he could have filled. Those matters might have seemed to counsel to give a potential forensic advantage from the calling of the propensity evidence. I consider that the possible existence of such a forensic advantage is not sufficient to render the evidence relevant to prove or disprove the extent of the appellant’s involvement in the events.
[65] For the reasons I have given, I agree with the conclusion of the trial Judge that the proposed propensity evidence was not relevant to the appellant’s defence. I too would dismiss the appeal.
Solicitors:
Crown Law Office, Wellington
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