Pepene v The Queen
[2011] NZCA 497
•29 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA8/2011 [2011] NZCA 497 |
| BETWEEN CLEM WILLIAM JAMES PEPENE |
| AND THE QUEEN |
| Hearing: 25 August 2011 |
| Court: Randerson, Harrison and Wild JJ |
| Counsel: M L Wotherspoon for the Appellant |
| Judgment: 29 September 2011 at 11.30 am |
JUDGMENT OF THE COURT
The appeal, which is against conviction, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Pepene appeals against his conviction for murdering Mr Paul Chong. He contends that French J’s evidentiary trial rulings Nos 5 and 6 resulted in a miscarriage of justice.[1]
[1]R v Pepene HC Auckland CRI-2009-044-7883, 19 October 2010 (Ruling No 5); R v Pepene HC Auckland CRI-2009-044-7883, 26 October 2010 (Ruling No 6)..
In Ruling No 5 the Judge admitted a hearsay statement from a Mr Wimutu. In Ruling No 6, the Judge permitted the Crown to adduce further evidence after the defence had closed its case. The further evidence was about telephone calls made by the appellant from prison shortly before and during his trial.
The issue on appeal is whether justice has miscarried in relation to either ruling, or to both taken together.
Background
Mr Will Junior Dillon arranged to sell half a gram of methamphetamine to a friend, Mr Greg Elliot. Mr Pepene accompanied Mr Dillon to make the sale on 11 May 2009. When the pair arrived at the appointed place, they found it was Mr Chong and not Mr Elliot who was to buy the methamphetamine.
The three men went to Mr Chong’s nearby workshop. There, Mr Chong handed over the $300 price Mr Dillon had agreed with Mr Elliot. Mr Dillon told Mr Chong he wanted more money and refused to hand over the methamphetamine. An argument escalated into violence. Mr Pepene stabbed Mr Chong three times with a kitchen knife before threatening him with a sledgehammer. One of the stabs was fatal. The knife is important. Mr Pepene’s evidence was that he picked it up from Mr Chong’s kitchen table, while the Crown case was that Mr Pepene had got it from the kitchen of Mr Dillon’s house and taken it with him to Mr Chong’s house.
Later on the afternoon of 11 May 2009, Mr Dillon and Mr Pepene were at the home of Mr Pepene’s partner, Ms Amy Greaves. Ms Greaves is the sister of Mr Dillon’s partner, Ms Carmen Rongonui, who was also there. At Mr Pepene’s request, Ms Rongonui contacted her half-brother, Mr Zane Wimutu, and asked him to come over. When Mr Wimutu arrived, Mr Dillon and Mr Pepene told him what had happened at Mr Chong’s house.
Two days later, on 13 March 2009, the police visited Mr Wimutu in the course of their investigation into Mr Chong’s death. Somewhat to the surprise of the police, Mr Wimutu told the police of the involvement of Mr Pepene and Mr Dillon. Mr Wimutu agreed to go to the police station, where he made, and signed, a formal statement. The key contested parts of Mr Wimutu’s statement are those we have emphasised below. We have set them in their immediate context:
Clem [Pepene] and Will [Dillon] were both talking over each other, I knew that they were serious. I asked Clem who he had killed, Clem told “Paul Chong”. I asked him how he killed him, he told me with a knife. Clem and Will were both trying to sort their story out, what they were going to tell police.
Clem told me that he had used a knife to kill Paul Chong, he said he used a steak knife that he had got from Carmen’s house, her house in Powell Street, Avondale. That is Will and Carmen’s house, it’s Will’s bail address. He got it from the kitchen.
…
Clem told me that Paul Chong attacked him. He said that Paul punched him in the head. Clem was standing up as he told me this, acting it out, showing me with actions.
Clem stepped back and pulled out the knife and stabbed him in the eye or face with the knife, Clem told me that he stabbed him a couple of times in the face but Chong kept coming at him. He said that he then stabbed him in the chest a couple of times, he said he feel the knife go into the chest, he said he thought he got him in the heart, that’s how he killed him.
Where the knife came from had an important bearing on the issues of Mr Pepene’s intent and whether he acted in self defence. Although the Crown put it to the jury that they could find that Mr Pepene meant to kill Mr Chong, the main thrust of the Crown case was that Mr Pepene had the so-called “reckless” murderous intent. That is, he meant to cause Mr Chong injuries he knew were likely to cause Mr Chong’s death, and was reckless as to whether or not death ensued.[2]
[2] That is the intent defined in s 167(b) of the Crimes Act 1961.
Although Mr Pepene abandoned the defence of self-defence, French J nevertheless directed the jury on it. Given that there was an evidentiary basis for self-defence, that was the correct course.
Ruling No 5: Admissibility of hearsay statement
The Crown was unable to locate Mr Wimutu at the time of trial, so sought to offer in evidence the statement he had made to the police. That engaged a number of sections of the Evidence Act 2006 (the Act), in particular s 18 which provides:
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
…
To evaluate the admissibility of Mr Wimutu’s statement, French J used Lang J’s formulation from Bishop v Police:[3]
… the Court may only permit a hearsay statement to be admitted as evidence in a criminal proceeding if it is satisfied:
a)That the notice requirements under s 22 have been met; and
b)That the circumstances relating to the statement provide reasonable assurance that the statement is true; and
c)That the maker of the statement is unavailable as a witness; or
d)That undue expense or delay would be caused if the maker of the statement were required to be a witness; and
e)That the probative value of the statement is not outweighed by the risk that the statement would have an unfairly prejudicial effect on the proceeding (taking into account the right of the defendant to offer [an effective] defence) or that it would needlessly prolong the proceeding.
[3] Bishop v Police HC Gisborne CRI 2008-416-3, 28 February 2008 at [12].
Mr Wotherspoon for Mr Pepene accepts Lang J’s formulation. He challenges French J’s decisions on b), c) and e). The nub of his concern is that the Crown was better off without Mr Wimutu appearing because he could not be cross-examined. Mr Pepene was correspondingly worse off, and was unfairly prejudiced because his counsel was not able to cross-examine Mr Wimutu, particularly about what he told the police Mr Pepene had said about the knife. We will work through each of c), b) and e), and in that order.
Was Mr Wimutu “unavailable as a witness”?
Upon a voir dire, French J heard evidence, in particular from Detective Sergeant McCormack, the officer second-in-charge of Mr Pepene’s case, that the West Auckland police had been trying to locate Mr Wimutu on outstanding arrest warrants since September 2009.
Initial disclosure was made to Mr Pepene’s counsel in October 2009. This included advice that the police had an “informant’s statement”, but not disclosure of that statement. Defence counsel did not query this limited disclosure.
In her ruling the Judge records that it appeared to her from the evidence that the police had made a deliberate decision not to serve a witness summons on Mr Wimutu. Detective Sergeant McCormack explained that the police considered Mr Wimutu needed to be treated with sensitivity because of his criminal connections and concern for his safety. As the Judge put it, it appeared the police did not want him “spooked”.
French J recorded that efforts to locate Mr Wimutu for the purposes of Mr Pepene’s trial[4] intensified late in September 2010. Those steps included featuring Mr Wimutu on the New Zealand Herald crime page on 22 September 2010, and on TV One’s Police Ten 7 programme on 30 September 2010. Police also made inquiries of Mr Wimutu’s family, and of his known associates. None of these inquiries bore fruit. Those inquiries were consequent upon the Crown’s decision, communicated to the defence on 23 September 2010, to call Mr Wimutu as a witness at Mr Pepene’s trial. A copy of Mr Wimutu’s statement was then provided to the defence.
[4] The trial began on 11 October 2010.
Mr Wotherspoon reiterated to us the same criticisms he had made to French J of the efforts by the police to locate Mr Wimutu. The gist of these criticisms was that the police had started their efforts to find Mr Wimutu far too late. They should much earlier have taken the steps they took in late September 2010. Mr Wotherspoon actually went further in his submissions to us, contending that the police had conveniently done nothing until about three weeks before the trial when it was too late to find Mr Wimutu. When we put it to Mr Wotherspoon that that alleged bad faith on the part of the police, he immediately disowned any such suggestion.
Mr Wotherspoon has not persuaded us that French J was wrong to find, on the evidence she heard, that Mr Wimutu was unavailable as a witness in terms of s 18(1)(b)(i). The West Auckland Police had been seeking Mr Wimutu on the outstanding warrants since September 2009. There were legitimate operational reasons for the police decision not to intensify efforts to locate Mr Wimutu before late September 2010, so that he could be called as a witness at Mr Pepene’s trial about three weeks later. Mr Wotherspoon was unable to substantiate how the result would have been any different, had police acted earlier. We agree with the Judge that the fact that a witness summons had never been served on Mr Wimutu is a factor, but not a decisive one.
Did the circumstances relating to Mr Wimutu’s statement provide reasonable assurance that the statement was true?
French J worked through each of the relevant circumstances, as they are defined in s 16(1) of the Act:
circumstances, in relation to a statement by a person who is not a witness, include –
(a)the nature of the statement; and
(b)the contents of the statement; and
(c)the circumstances that relate to the making of the statement; and
(d)any circumstances that relate to the veracity of the person; and
(e)any circumstances that relate to the accuracy of the observation of the person.
Dealing first with the nature of the statement, the Judge noted that it was a formal written statement to the police, taken during an interview spanning several hours, signed by Mr Wimutu and witnessed by Constable Renfree who took the statement. The Judge found that Mr Wimutu was not aware until he had made the statement that he might be called to give evidence, a factor she considered arguably went against the reliability of the statement. The Judge also noted that the statement did not contain the usual acknowledgment at the end by Mr Wimutu that he had read over the statement and confirmed its truth. It seemed that was an oversight by Constable Renfree. However, set against this were the circumstances of the making of the statement and those relating to Mr Wimutu’s veracity, which we mention in [27]–[29] below.
Mr Wotherspoon did not contest the relevance of those factors, or point to any factor overlooked by the Judge. His challenge was at the more general level that Mr Wimutu’s statement was double hearsay. That is not strictly correct because Mr Pepene gave evidence, and always intended to give evidence. But even if the statement was double hearsay, French J was right to recognise that the real concern was the statement’s reliability.
Turning to the contents of the statement, French J described it as a detailed account of a conversation. It contained accurate detail which Mr Wimutu could only have got from Mr Pepene and Mr Dillon. The Judge made the points that Mr Pepene, who gave evidence on the voir dire, accepted that he had spoken to Mr Wimutu and that most of what Mr Wimutu had recounted to the police was accurate. The main exceptions were what Mr Wimutu told the police Mr Pepene had told him about the origin of the knife, his stating that Mr Pepene was already burning his bloodstained clothes when Mr Wimutu arrived, and Mr Wimutu also telling the police that all present had watched an item about the homicide on the six o’clock news before he left the house.
The Judge also took into account the evidence Ms Rongonui and Mr Dillon gave on the voir dire. Ms Rongonui corroborated Mr Pepene’s evidence as to what he had told Mr Wimutu about the knife. Mr Pepene’s evidence-in-chief on the voir dire was simply that he had “just grabbed a knife”[5] when Mr Chong threatened him and then attacked him. Under close cross-examination, Mr Pepene said he told Mr Wimutu he had got the knife from Mr Chong’s kitchen, “from off his kitchen table”. He added that when Mr Wimutu pressed him about where he had got the knife from, he said he had told Mr Wimutu “I dunno, all over”.[6] He repeatedly denied that he had got the knife from Ms Rongonui’s home and taken it with him when he went with Mr Dillon to sell the methamphetamine.[7] The Judge noted that Mr Dillon, on the other hand, said Mr Pepene had said nothing to Mr Wimutu about the knife while he (Mr Dillon) was there with the two of them.
[5] Voir dire evidence at 620.
[6] Voir dire evidence at 624.
[7] Voir dire evidence at 624, 625–626 and 630.
We have some difficulty in following Mr Wotherspoon’s submissions on this aspect. They largely challenge French J’s findings relating to the circumstances of the statement. In particular, Mr Wotherspoon submitted the Judge erred in respect of Mr Dillon’s evidence. We do not think she did. Mr Dillon said two different things about the knife. First, he said “he [Mr Pepene] grabbed a knife from a table in the kitchen”.[8] It seems Mr Dillon was referring to the kitchen at Mr Chong’s house, but this was not clarified and defence counsel’s examination was interrupted by an objection by prosecuting counsel. Second, there followed this exchange:[9]
Q.Well, what was said about the knife by Mr Pepene whilst Mr Wimutu was there?
A.Nothing.
[8] Voir dire evidence at 655.
[9] Voir dire evidence at 656.
Mr Wotherspoon did not contend that French J had overlooked anything in looking at the contents of Mr Wimutu’s statement. His submission was more that the errors in the statement rendered it generally unreliable. We accept that some errors in the statement were established. What we do not accept is that those errors rendered the statement generally unreliable. For example, the Crown accepted that Mr Wimutu was mistaken in saying that the homicide was reported in the six o’clock news. The jury were made well aware of this mistake. We are satisfied that the mistake was of marginal importance and did not undermine the reliability of the statement as a whole. There is nothing compelling in Mr Wotherspoon’s challenge on this aspect.
Our [7] above largely reiterates the Judge’s summary of the circumstances relating to the making of the statement. The Judge also took into account the “cognitive” nature of the statement, and the length of the interview that produced it. “Cognitive” referred to the fact that Constable Renfree had asked Mr Wimutu general, open-ended questions such as “tell me about what happened”, rather than specific questions.
Dealing with circumstances relating to Mr Wimutu’s veracity, the Judge noted he had a significant number of convictions for dishonesty. The Crown subsequently led evidence of those convictions at the trial, so the jury could take account of them when weighing up Mr Wimutu’s statement.
On the other hand, French J considered there was no evidence that Mr Wimutu had a motive to lie in his statement to the police. He was related to the partners of both Mr Pepene and Mr Dillon, and was on good terms with the men at the time. Indeed, the defence voir dire witnesses accepted that Mr Wimutu was invited to come around because they wanted his help. By contrast, Mr Wimutu was not well disposed toward Mr Chong. He told the police that he had spoken to Mr Chong on the phone “after he pretty much sold me a bag of salt instead of meth, it was shit, he had cut it down. He told me to get fucked …”. The Judge noted that Mr Wimutu told the police he was talking to them because he believed Mr Pepene and Mr Dillon had gone too far.
With one exception, Mr Wotherspoon’s submissions to us were a reiteration of these points. The exception was his reliance on evidence Mr Pepene gave on the voir dire that Mr Wimutu had “told a few of the boys in jail” that he had arranged for Mr Pepene to kill Mr Chong because Mr Chong owed him money – “he killed him for me”. That, of course, is itself hearsay. It also has a whiff of false self-aggrandisement about it. We see no fault in French J’s assessment on this aspect, and consider the one new point taken by Mr Wotherspoon far from compelling.
Lastly, in terms of circumstances relating to the accuracy of Mr Wimutu’s observation, the Judge noted he was smoking cannabis. Mr Wotherspoon also referred us to Mr Pepene’s evidence that Mr Wimutu “says a bit too much and starts to exaggerate because he’s always under the influence of methamphetamine …”.[10] Countering this was Mr Pepene’s acceptance that most of what Mr Wimutu had told the police was correct, and the fact that he spoke to the police only two days after the murder.
[10] Voir dire evidence at 640.
When all these matters are taken into account, we consider French J was correct to conclude that the circumstances relating to Mr Wimutu’s statement provided reasonable assurance that the statement was true. Certainly, we see no error in the Judge’s approach.
Probative value outweighed by unfair prejudice?
In terms of the assessment required by s 8 of the Act, French J assessed the probative value of Mr Wimutu’s statement as high. She noted Mr Wotherspoon’s submission that three things resulted in the risk of an unfairly prejudicial effect outweighing whatever probative value the statement had. The first was the inability to cross-examine Mr Wimutu, the second the danger that the jury would treat the statement as if it were an agreed one, and the third the danger that the jury would accept what Mr Wimutu stated Mr Pepene had told him about the knife, because much of the rest of his statement was consistent with other evidence.
The Judge regarded the loss of the ability to cross-examine Mr Wimutu, particularly about the knife, as a significant but not decisive factor. She pointed out that the inability to cross-examine Mr Wimutu was not of itself a reason for excluding his statement. That follows from the power in s 18 to admit the statement of a witness who is unavailable for cross-examination. She noted that Mr Wotherspoon had not suggested there were grounds to believe Mr Wimutu would recant what he had stated, nor that he could give other evidence that might assist the defence. The Judge observed that any recanting would have resulted in the Crown confronting Mr Wimutu with his signed written statement. The Judge considered that the key matters Mr Wotherspoon had indicated he wanted to put to Mr Wimutu could be brought out through other witnesses. Two examples were the fact that Mr Wimutu was smoking cannabis and his previous convictions. French J considered the risk of prejudice could also be managed by her giving appropriate directions to the jury, including directing them to treat Mr Wimutu’s statement with caution because it had not been tested by cross-examination.
Mr Wotherspoon reiterated to us the submissions he had made to the Judge. In particular he submitted that he “should have had the right to cross-examine Mr Wimutu about his important evidence about the knife”.
We cannot see any fault in French J’s weighing of the prejudicial value of Mr Wimutu’s statement against any unfair prejudicial effect admitting it may have. The Judge’s focus was rightly on what Mr Wimutu had told the police Mr Pepene had said about the knife. We agree with the Judge that an important consideration was that the jury was to hear (and did hear) evidence from three other people who were there at the time: Mr Pepene himself, Mr Dillon and Ms Rongonui.
We also agree with the emphasis the Judge placed on her ability to direct the jury about Mr Wimutu’s statement. Mr Wotherspoon makes no criticism of the way in which the Judge did that, doubtless because she particularly emphasised these points which Mr Wotherspoon had suggested were potential sources of unfair prejudice:
(a)The agreed written statements of evidence read to the jury were in “a very different category” from the statement made by Mr Wimutu. That was because the defence “strongly dispute the accuracy of some parts of [Mr Wimutu’s] statement”.
(b)Mr Wimutu’s statement is hearsay because he did not himself give evidence, and for that reason the defence never got a chance to cross-examine him. His statement should therefore be approached with caution.
French J then summarised for the jury the reasons why the Crown contended Mr Wimutu’s statement was reliable, and the matters which Mr Wothersoon said showed the statement was not reliable. She concluded this part of her summing up by cautioning the jury (for the third time) about Mr Wimutu’s statement in these terms:[11]
Ultimately it is for you to decide whether to accept the Wimutu statement, and if you accept it, what weight you give to it, bearing always in mind the need for caution because it is hearsay and it has not been tested in cross-examination.
[11] At [95].
We can see no fault in the way French J went about assessing the admissibility of Mr Wimutu’s statement to the police, and no fault in her assessment that its probative value outweighed any unfairly prejudicial effect its admission may have on Mr Pepene’s trial.
For the sake of completeness, we record that after French J had given her Ruling No 5, the defence advised it was not arguing self defence.[12] The Judge nevertheless put self-defence to the jury, as there was an evidential basis for it. Counsel accepted that was the proper course.
Ruling No 6: Permitting the Crown to call further evidence after defence had closed its case
[12] Recorded in French J’s minute of 20 October at 2/708.
We mentioned that Mr Pepene’s trial began on 11 October 2010. Between 5 and 21 October Mr Pepene telephoned his partner Ms Amy Greaves from remand prison. Recordings of those telephone conversations were obtained by the police pursuant to a search warrant. In some of those conversations Mr Pepene told Ms Greaves to tell her sister Ms Carmen Rongonui what to say when she gave evidence in his trial.
As an example, this is part of the conversation Mr Pepene had with Ms Greaves on 18 October:[13]
[13] Quoted in the Judge’s Ruling No 6 at [11].
Mr Pepene:You need to ring Carmen up and tell her this, they gonna ask her if I went to sleep the night before
…
Ms Greaves: We stayed at Carmen’s the night.
Mr Pepene: Yeah, but they’re going to ask did he go to sleep
Ms Greaves: Yeah and
Mr Pepene:All she has to say is she doesn’t know. But when she got up to go toilet she never seen me. So yeah I think you might of
…
Mr Pepene:Just tell her to state that she doesn’t she can’t she can’t really remember, oh nah nah just tell her to state what um she doesn’t know cause she she went to bed pretty early but when she got up to um go toilet stuff like that the only one that she’s seen awake was Junior. That was it.
When Ms Rongonui gave her evidence it differed in significant respects from her deposition. That caused the Crown to apply for a search warrant permitting it to obtain the tapes recording Mr Pepene’s conversations with Ms Greaves.
After the defence closed its case the Crown sought permission pursuant to s 98 of the Act to put these conversations in evidence. Section 98 provides:
98 Further evidence after closure of case
(1)In any proceeding, a party may not offer further evidence after closing that party’s case, except with the permission of the Judge.
…
(3)In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if –
…
(c)the further evidence was not available or admissible before the prosecution’s case was closed; or
(d)for any other reason the interests of justice require the further evidence to be admitted.
…
French J granted permission indicating that her reasons would follow which they did, on 26 October. The Judge recorded that the Crown wanted the jury to hear the conversations because they provided the “ultimate corroboration” that the defence witnesses’ version of events was a fabrication. In particular, the Crown contended that the conversations bore on the reliability of Mr Wimutu’s statement and the lack of credibility of Mr Pepene and Ms Rongonui, as well as demonstrating consciousness of guilt on Mr Pepene’s part.
The Judge’s Ruling No 6 sets out the grounds on which Mr Wotherspoon opposed the Crown’s application. He contended the conversations were not sinister. They showed nothing more than Mr Pepene encouraging his witnesses to come up to brief and tell the truth. They added nothing to the case, in particular because they were irrelevant to the critical issue of whether Mr Pepene had murderous intent. While they may possibly go to Ms Rongonui’s credibility, they dealt only with peripheral matters and not the key question of from where Mr Pepene had obtained the knife.
French J started by reminding herself that the s 98 power is to be exercised very sparingly, and in a way that strikes the balance of justice for the Crown and the defence alike. It was not disputed that the conversations were in fact between Mr Pepene and Ms Greaves. The Judge considered they went well beyond an accused exhorting his witnesses to come up to brief and tell the truth. Ms Greaves had confirmed that some of the messages had been relayed to Ms Rongonui, and that was supported by the nature of the evidence Ms Rongonui had given.
The Judge considered there was enough to constitute “exceptional circumstances” justifying admitting the conversations under s 98(3)(c) and (d). Although some of what Mr Pepene had said was ambiguous, some parts were compelling, going directly to the veracity of both Mr Pepene and his witnesses, and were capable of being probative of guilt. There was no question of the Crown deliberately holding the evidence back, and nor did the evidence take the defence by surprise. The Crown had consistently contended that the story advanced by the three defence witnesses was a concoction.
The Judge accepted that admitting this further evidence would prolong the trial, particularly as Mr Pepene indicated that he intended to call evidence in “rebuttal of the rebuttal”. But the Judge was satisfied that the evidence was sufficiently important that it could not be said “needlessly” to prolong the trial.
In his submissions to us, Mr Wotherspoon accepted that part of the further evidence was not available before the Crown closed its case on 19 October. He took issue with the Judge’s statement that Ms Greaves had confirmed that she had relayed some of the messages, pointing out that Ms Greaves had not given evidence. But the thrust of Mr Wotherspoon’s submissions was that the further evidence did not impact on the vital issue in the trial, which was where Mr Pepene had got the knife from. The conversations contained no confession by Mr Pepene that he had got the knife from Mr Dillon’s house and taken it with him when he went with Mr Dillon to Mr Chong’s house. Mr Wotherspoon put it to us that the further evidence could never be determinative of the knife issue for the jury. He argued that it was “too peripheral and collateral” to be admissible.
The obvious response to this point is that French J did not admit the evidence because she considered it to be determinative of the knife issue, or to contain a confession about the knife. We have summarised in [44]–[48] why French J admitted the evidence. Although he undoubtedly contested the adequacy of the Judge’s grounds, Mr Wotherspoon did accept their validity. He accepted that the further evidence “really went only to accredit the s 18 statement [that of Mr Wimutu] or discredit the three defence witnesses”. However, Mr Wotherspoon contended that “the so-called rebuttal evidence was just an addendum or afterthought to the Crown’s own theory, already extensively aired, that the three defence witnesses were all lying about where the knife came from”. He argued that the correct Crown response to these conversations – if any – was to prosecute Mr Pepene separately for perverting the course of justice.
We endorse the Judge’s characterisation of the s 98(3) power as one to be exercised sparingly. Such a construction is evident from the Act. The Law Commission’s Evidence report details the policies behind the general rule prohibiting further evidence after closure of case as being:[14]
(a)The rule avoids giving undue emphasis, because it is heard last, to evidence in rebuttal.
(b)Allowing rebuttal evidence prolongs trials and encourages “surprise” evidence.
(c)In criminal cases, the defendant is entitled to conduct the defence on the “case to meet” established by the prosecution evidence. It would be unfair to allow the prosecution to alter the nature and scope against a defendant mid-trial.
The eventual s 98 was not altered as the Evidence Bill progressed through Parliament. Nor is it mentioned in Hansard.
[14] Law Commission Evidence (NZLC R55, 1999) at [431].
Section 98(3) prescribes a limited number of exceptions to the general rule in s 98(1). If the proposed evidence falls within one of the exceptions listed in s 98(3) the judge may grant permission for that evidence to be brought. The Judge’s exercise of the s 98(3) discretion should reflect the policies behind the general prohibition on further evidence and is, of course, still bound by ss 7 and 8, with s 8(1)(b) assuming particular importance in this context.
Mr Wotherspoon accepted that some of the further evidence came within s 98(3)(c). We think the Judge was correct to hold that all of it did, because the Crown had no basis to obtain the search warrant that produced the further evidence until Ms Rongonui had given her evidence on 18 October. In that the further evidence tended to demonstrate Mr Pepene attempting to pervert the course of justice, we think French J was right to regard it as also coming within s 98(3)(d).
Mr Wotherspoon’s submissions effectively concede the validity of the Judge’s reasons – that the further evidence tended to support Mr Wimutu’s statement, and discredit the relevant parts of the evidence of Mr Pepene, Mr Dillon and Ms Rongonui. Given that all the evidence about the critical issue of the knife came from those four people, we consider the Judge was entitled to permit it to be called.
Mr Wotherspoon did not contend that the further evidence unfairly prejudiced the defence. After the jury had heard the recorded telephone conversations, at the request of defence counsel the videotapes of the police interviews with Mr Dillon and Ms Rongonui were played to the jury. Both those interviews had taken place on 14 May 2009. The defence was then permitted to recall Mr Pepene. All of that, plus related legal argument, occupied well over a further day of trial time. While the Judge may not have anticipated that the trial would be prolonged to that extent, the important point on this appeal is that there cannot be any suggestion of resulting unfair prejudice to the defence.
To summarise, Mr Wotherspoon’s submissions have not persuaded us that the Judge’s Ruling No 6 was wrong.
Result
Neither the challenge to the Judge’s Ruling No 5 nor that to Ruling No 6 has succeeded. The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for the Respondent
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