Police v P HC Auckland CRI 2008-404-383

[2009] NZHC 683

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-00383

BETWEEN  THE NEW ZEALAND POLICE Appellant

ANDP

Respondent

Hearing:         25 May 2009

Appearances: D A Marshall for the Appellant

DGA Reece for the Respondent

Judgment:      8 June 2009

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 8 June 2009 at 12.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Counsel:
D A Marshall, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

DGA Reece, Barrister, P O Box 4208, Shortland Street, Auckland 1140. Fax: [phone]

POLICE V P HC AK CRI 2008-404-00383  8 June 2009

The Issue

[1]      This  is  an  appeal  by  way  of  case  stated.    The  situation  in  which  the respondent found himself in the District Court gave rise to interrelated provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[2]      As  detailed  elsewhere  in  this  judgment,  Judge  EP  Paul  discharged  the respondent in respect of one information which had been laid against him.  He did so on the basis of his perception that the only available identification evidence relating to the respondent was propensity evidence. In terms of the Evidence Act 2006, the Judge considered the propensity evidence should be excluded.

[3]      The issue raised by the case stated is whether the Judge’s approach was correct.

Background

[4]      The information to which the case stated  applies  alleged  wounding  with intent under s 188(1) of the Crimes Act 1961.  The prosecution case was that, shortly after 7.35 a.m. on a Sunday morning in March 2008, the victim was cycling around the Waiatarua Reserve in Ellerslie.   Shortly before the alleged assault,  she had passed the respondent and greeted him.  On her return journey, she rode across a foot bridge.  The respondent allegedly turned towards her, punched her in the face with sufficient force to knock her from her bicycle to the ground, and then picked her up and threw her across the bridge railing into the creek below.  As the victim tried to climb out of the creek, the respondent allegedly picked up her bicycle and threw it on top of her.  The respondent said nothing during this assault.  The victim sustained bruising, scratches and a fractured right orbital socket.

[5]      This incident resulted in considerable media publicity and understandable neighbourhood alarm.

[6]      There had been two earlier incidents allegedly involving the respondent and different victims.  On a Sunday afternoon in January 2008, a male victim was laying

a treasure hunt for children in the Michael’s Avenue Reserve in Ellerslie.  The victim walked past the respondent and  greeted  him.    There  was  no  acknowledgement. Approximately ten minutes later, as the victim walked past the respondent a second time, the respondent punched him in the right eye, knocking him to the ground, punched him two further times, and then walked off wordlessly.

[7]      Five days later, another male victim was riding his bicycle up Koroha Street, which runs into Abbotts Way where the respondent lived.   As the victim’s cycle drew abreast of the respondent, the respondent stepped off the footpath and stiff- armed the victim in the face.

[8]      As a result of police investigations, a search warrant was executed at the respondent’s home in Abbotts Way on 14 March 2008.   The respondent became obstructive and aggressive.   He administered two closed-fist punches to a police officer.

[9]      Thus, in addition to the s 188(1) charge to which this appeal relates, the respondent also faced charges under s 189(2) of injuring with intent to injure; s 193 of assault with intent to injure; and s 10 of the Summary Offences Act 1981 of assault on a police officer.

Criminal Procedure (Mentally Impaired Persons) Act 2003

[10]     In the wake of the respondent’s arrest, it became apparent that he had a psychiatric history and that there were questions as to whether he is fit to stand trial. In that situation, s 9 came into play which provides:

Court must be satisfied of defendant's involvement in offence

A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

[11]     Thus the Judge first had to decide, in respect of the four charges against the respondent, whether he was satisfied, on the balance of probabilities, that there was

sufficient evidence establishing the respondent had caused the assaults lying at the heart of the four charges (s 12(1)).  If there was such a finding, charge by charge, the District Court’s inquiry would turn to whether the respondent  was  fit  to  plead. Absent such a finding the Court was obliged to discharge the respondent (s 13(2)).

[12]     In respect of the two January 2008 assaults and the assault on the police officer, the prosecution had no difficulty establishing the respondent was the cause. All three victims were able to identify, without difficulty, the respondent.

[13]     The woman, however, who had been punched and thrown over the bridge in March 2008 (supra [4]) was not able to identify her assailant.   During police investigations she had failed to identify the respondent from a photo-montage. Accordingly, the Crown sought to rely on both circumstantial evidence and propensity evidence.   The propensity evidence clearly included the two similar, unprovoked, wordless assaults which had taken place two nights earlier.

[14]     In   addition   to   propensity   evidence,   the   prosecution   would   rely   on circumstantial  evidence  to  establish  that  the  March  2008  assailant  was  the respondent.  Such circumstantial evidence included:

•      The victim’s description of her assailant as a large or obese Polynesian male.

•The proximity of the respondent’s home to the site of the assault (an entrance to  Waiatarua  Reserve  being  just  across  the  road  from  the  respondent’s Abbotts Way home).

•Evidence from the respondent’s wife that on the morning of the assault she woke at 8.00 a.m. and found the respondent already dressed and watching television.

•Evidence from the respondent’s wife that he would often leave the house early in the morning and go for lengthy walks.

•Evidence from the respondent’s wife that he did not like palangi and would rather walk with Tongans than with whites.

[15]     The propensity evidence on which the prosecution would rely included:

•      The occurrence of three assaults within a two-month period.

•The respondent being clearly identified in respect of the two January 2008 assaults and the subsequent assault on a police officer.

•The  proximity  of  the  scene  of  all  three  assaults  on  strangers  to  the respondent’s home.

•      Two of the three attacks involving people on bicycles.

•      The assaults being unprovoked.

•      In all four assaults, the assailant’s silence.

•      The assailant striking the victims on the face.

•      The assailant walking at the time.

•      All victims being European.

•      No suggestion of witness collusion.

[16]     Thus   the   circumstantial   evidence   and   the   propensity   evidence,   in combination, were to be offered by the prosecution at the s 9 hearing to form the basis of a finding that, on the balance of probabilities, it was the respondent who had caused the March 2008 assault.

[17]     The Judge had no difficulties in establishing for s 9 purposes that it was the respondent who had caused the two January 2008 assaults and the assault on the police officer.

[18]     In  respect  of  the  s  188(1)  grievous  bodily  harm  charge,  the  Judge  first reviewed the complainant’s evidence.  He next referred to the fact that the victim, a month later, had been unable to identify the respondent from a photo montage.

[19]     The Judge then correctly identified the issue as being the identity of the male who attacked the victim in March 2008.  He referred to the fact that there had been no admissions from the respondent, nor was there any independent evidence to place the respondent in the park at the time the assault had occurred.

[20]     The Judge then referred to the propensity evidence which the prosecution was offering under s 43 of the Evidence Act 2006.  He reminded himself of s 43(2) in the context of weighing the probative value of the evidence  against the risk of the propensity evidence having an unfair prejudicial effect.  The issue for that exercise, the Judge stated, was identity.

[21]     The Judge then reviewed the propensity evidence on which the prosecution relied.   He turned to s 43(4) and its mandatory requirement that he consider the issues of unfair predisposition and disproportionate weight.  He concluded:

The only evidence leading to identify Mr P  , could be the propensity evidence.  I have nothing else, which could assist me in identifying who the attacker was.   If that is the case then logically I must be giving disproportionate weight to that evidence because it is the only evidence, there is nothing else.  It seems to me, even on the balance of probabilities’ test, as the fact finder going back to what s 9 requires of me, that I must be satisfied there is sufficient evidence to establish that it was Mr P   that [sic] wounded [the victim].   I form the view that I cannot be satisfied that the evidence is sufficient, particularly where the only evidence of identity is propensity and in my view it has a prejudicial effect and would unfairly operate against Mr P  .   For those reasons I cannot find that charge established pursuant to s 9 of the Act.

[22]     On that basis, the Judge discharged the respondent pursuant to s 13(2).

[23]     The case stated, dated 23 February 2009, settled by the Judge in consultation with counsel, poses two questions for this Court which are:

a)       Whether   the   only   evidence   identifying   [the   respondent]   was propensity evidence is correct; and

b)Where the only evidence   identifying [the respondent] is propensity evidence it must be the case that the evidence would unfairly predispose the case against [the respondent] and I would have to give the propensity evidence disproportionate weight is correct.

[24]     Counsel’s submissions were helpful and focussed.  Mrs Marshall submitted that the Judge erred in finding that the only evidence against the respondent was the propensity  evidence.     He  had  failed  to  take  into  consideration  the  victim’s description of her assailant; and the evidence from the respondent’s wife of his walking habits, his dislike of palangi and the fact that he was awake and dressed shortly after the attack (supra [14]).

[25]     Mrs Marshall also submitted that the Judge had failed to give any explanation as to why the propensity evidence would be unfairly prejudicial.  He limited himself to the proposition that he would “logically” have to give the propensity evidence disproportionate weight.  He had thus misdirected himself.

[26]     Mr Reece, for the respondent, conceded that the logic of the Judge when he had stated “... logically I must be giving disproportionate weight to [the propensity evidence] because it is the only evidence, there is nothing else” was flawed. Nonetheless, counsel submitted the Judge had made it clear he was not satisfied, on the balance of probabilities, that the propensity evidence was strong enough to link the respondent with the attack and that the Judge was entitled to find, as he had in terms of s 43(4) of the Evidence Act, that the admission of the propensity evidence would unfairly prejudice the respondent.

[27]     Mr Reece further submitted that the propensity evidence, as it related to the

January 2008 attacks was too remote in time on the issue of identity.

[28]     Section 43 of the Evidence Act provides:

43       Propensity evidence offered by prosecution about defendants

(1)The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

(2)      When  assessing  the  probative  value  of  propensity  evidence,  the

Judge must take into account the nature of the issue in dispute.

(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.

[29]     Propensity evidence itself is defined in s 40(1)(a).  There was no dispute by counsel, nor indeed did that the Judge doubt, that the propensity evidence the Crown intended to offer (supra [15]) was indeed evidence which tended to show the respondent’s propensity to act in a particular way.

[30]     Nor, when consideration is given to the s 43(3) criteria, can there be any serious challenge to the various propensity threads weaving their way through the two January  2008  assaults  and  the  March  2008  assaults,  including  frequency, connection   in   time,   similarity,   the   absence,   in   this   case,   of   collusion   or suggestability, and the unusual features of all three assaults.

[31]     The Judge was correct to identify for s 43(2) purposes the disputed issue as being identity.  The propensity evidence, together with the circumstantial evidence, was being offered as having probative value tending to establish that the accused, was the March 2008 assailant.

[32]     It  is  almost  trite  to  observe  that  relevant  and  admissible  evidence  is prejudicial to the interests of a person accused of a crime.  The propensity evidence to be offered by the prosecution clearly met the s 7 requirement of relevance.  As with all relevant evidence, if its probative value were to be outweighed by the risk of an unfairly prejudicial effect (s 8(1)(a)), then it must be excluded.  The same policy and the requirement to weigh the probative value of evidence against the risk of unfair  prejudice  lies  at  the  heart  of  s  43(4)  so  far  as  propensity  evidence  is concerned.

[33]     The Judge has, with respect, made an error which both counsel discerned. The s 43(2) issue in respect of which the Judge needed to assess the probative value of the propensity evidence, was indeed the issue of identity.   But the Judge erred when he described that propensity evidence as being “the only evidence” (supra [21]) which led to identifying the respondent.   There was other evidence which melded with the propensity evidence on the identity issue.  That evidence included

the evidence of the respondent’s wife; the victim’s evidence of her assailant’s ethnicity and size; the evidence of times; and the geographic proximity between the respondent’s home and site of the assault.

[34]     By incorrectly seeing the propensity evidence as the “only” evidence on the identity issue, the Judge has embarked on a s 43(4) balancing exercise from an incorrect start point.  Given the other identity evidence available, it would be wrong to conclude, as the Judge did, that he was giving the propensity evidence disproportionate weight because it was “the only evidence, there is nothing else”. Although the Judge does not specifically refer to the s 43(4)(a) limb, there do not seem  to  be  any  aspects  of  the  propensity  evidence  which  would  “unfairly predispose” the fact finder (in this case, the Judge himself) against the defendant. Nor does the Judge give any reason (quite apart from the error) as to why he felt he had to give the evidence disproportionate weight.  His finding of disproportionality has been skewed by his failure to consider the circumstantial evidence.

[35]     Given that the s 9 standard of proof is the balance of probabilities and given that  a  Judge  alone  was  the  fact  finder,  it  seems  highly  unlikely to  me  that  an experienced judicial fact finder would have given disproportionate weight to the propensity evidence (given the other available evidence) when assessing the identity of the March 2008 assailant for s 9 purposes.

[36]     Regrettably, the incorrect assumption that the propensity evidence was the only available evidence on identity has permeated the case stated.   Both questions (supra [23]) are based on the assumption that the propensity evidence was the only available evidence.  It was not.

[37]     There is no basis, that I can discern, to exclude the propensity evidence offered by the prosecution on the identity aspect of the s 188(1) charge.  It should have sufficed for the purposes of s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Result

[38]     For these reasons, the opinion of this Court on the two questions raised in the case stated is as follows:

a)       The Judge’s decision that the only evidence identifying the respondent was propensity evidence is not correct.

b)The Judge’s decision (based on the incorrect assumption that the only evidence identifying the respondent was propensity evidence) that it must  be  the  case  that  the  evidence would  unfairly predispose  the Judge against  the  respondent  and  that  he  would  have  to  give  the propensity evidence disproportionate weight is not correct.

[39]     Mrs Marshall submitted that if I answered the questions this way, I should substitute my own decision for that of Judge Paul.   Although such an approach would simplify matters, my preference is to remit the matter back to the District Court for determination in the light of the result of this case stated.

[40]     My reason for that preference is that on 17 December 2008, three weeks after his s 9 judgment, the Judge, having received a health assessor’s report, proceeded to make various orders under s 24.  The Judge additionally recorded, pursuant to s 30, that the duration of the orders he made was for a period of 2½ years.  In terms of the statutory scheme, that order clearly had in mind half of the maximum permitted term (5 years) under s 189(2) of the Crimes Act 1961.

[41]     If, as should be the case, a reassessment of the admissibility of the propensity evidence, leads the District Court to decide for s 9 purposes that the respondent, on the balance of probabilities, caused the act lying at the centre of the March 2008 assault, then the duration of the order could, in the exercise of the Court’s discretion, be longer then 2½ .  The maximum imprisonment term for s 188(1) wounding with intent to cause grievous bodily is 14 years.

[42]     Given that the case stated is limited solely to the admissibility of propensity evidence under the Evidence Act 2006, I think it would be wrong in principle for me to exercise the District Court’s discretion under another statute and without benefit of the reports and submissions available to the Court.

[43]     Thus, this Court having ruled on the case stated that the Judge’s two findings were incorrect, the matter is referred back to the District Court for redetermination in the light of those answers and my comments.

..........................................… Priestley J