R v Alexander
[2017] NZHC 1693
•21 July 2017
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-009-9101
[2017] NZHC 1693
THE QUEEN v
JAYDEN ALEXANDER
Hearing: 12 July 2017 Appearances:
A McRae for Crown
J Rapley for Defendant
Judgment:
21 July 2017
JUDGMENT OF MANDER J
[1] The defendant, Jayden Alexander, is charged with the murder of his brother, Tainui Wano. The Crown case is that Mr Wano died as a result of being stabbed by Mr Alexander. The Crown seeks orders that propensity evidence it proposes to call is admissible at Mr Alexander’s trial.1
Background
[2] On the morning of 13 September last year, Mr Alexander visited his brother at an address at Ashburton. Also present were Mr Wano’s partner, Ms Reese Aranui, and
1 Criminal Procedure Act 2011, s 101.
R v ALEXANDER [2017] NZHC 1693 [21 July 2017]
a male associate, Cameron Hall. Throughout the day they drank alcohol in the lounge. All became intoxicated. At around 4 pm, Mr Wano together with his partner went to his room to sleep.
[3] Sometime after 9 pm, Mr Alexander was making a noise from the lounge area and causing damage to the property. Mr Wano awoke. Annoyed with the noise and his brother’s actions, he got up and went down the hallway. He told Mr Alexander to calm down. Mr Alexander was angry. He said that he was stuck in the lounge because the door to the hallway had locked or jammed, and he was going to kick the door in. Mr Wano told Mr Alexander to respect his property or go home. Eventually, Mr Hall who was inside the lounge managed to get the door open and Mr Wano went back to bed.
[4] At around 10.20 pm banging was heard in the hallway. Ms Aranui described the sound as being like a combination of “punching the wall, stumbling, and banging the wall in frustration”. She could hear Mr Alexander mumbling in the hallway. Mr Wano again got out of bed. As he got to the bedroom door, Ms Aranui observed the door beginning to open and that Mr Alexander had his arm through the door.
[5] Mr Wano was heard to say, “You hold a knife to me eh?”, and pushed Mr Alexander away into the hallway. Ms Aranui heard Mr Alexander say, “Yeah, yeah, you think I won’t do it?”, and Mr Wano replying by saying, “Get, go home, roll out”. Mr Wano then started pushing Mr Alexander to the front door to get him out of his house.
[6] Once Mr Alexander was out of the house and the front door closed, Mr Wano discovered he was bleeding from his chest. Ms Aranui placed a towel on the wound and returned Mr Wano to the bedroom before calling an ambulance. However, the wound was fatal. Mr Alexander remained outside the house where, in an agitated state, he was heard by neighbours ranting and yelling. A number of witnesses describe hearing an angry male voice swearing, yelling abuse, and making threats to kill. The words “I’ll stab you in the throat” were heard.
[7] One neighbour gives evidence of hearing two voices: one a very loud and angry male voice and the other a softer male voice. This witness heard the angry sounding male yell, “I’m gonna fucking kill you”, which he describes as having been yelled twice. The softer male voice responded but the witness could not hear what was being said. A third person who sounded like a female was heard to say something similar to “no fighting”. While other neighbours may have heard Mr Alexander shouting after being removed from the house, the Crown submits this witness heard what was being said while Mr Alexander was still inside the house.
[8] The Crown’s case is that Mr Alexander, while intoxicated and angry, deliberately stabbed Mr Wano in the hallway as he sought to have his brother leave the house.
Proposed propensity evidence
[9] The proposed evidence takes the form of two relatively short passages contained in the formal statements of the brothers’ mother, Ms Amanda Leahy- Alexander, and their sister, Ms Ariana Alexander. The third source of the proposed propensity evidence is from Mr Alexander’s girlfriend at the time, Ms Tahlia Heke. Her evidence is more extensive and relates to Mr Alexander’s involvement with knives and a number of incidents when Mr Alexander was intoxicated and aggressive. During the last of those events there was a physical altercation involving Mr Alexander and Mr Wano, and Ms Heke threatened by Mr Alexander with a knife.
Amanda Leahy-Alexander
[10] Ms Leahy-Alexander’s evidence concerns an incident on 7 September when she left Mr Alexander in her car with her 16 month old daughter while she went into a supermarket. Upon her return she found Mr Alexander “ranting and raving” about a woman who had walked past the car and commented that children should not be left alone in cars. Mr Alexander had erroneously thought the comment related to him. Mr Alexander said that he had gone “nuts” at the woman and tried to “step her out”, and that she had then run.
[11] After they returned to Ms Leahy-Alexander’s address, some plumbers arrived to fix a drain. As Ms Leahy-Alexander was returning to the house from her car with a bag of groceries she saw Mr Alexander physically challenging one of the plumbers who was standing next to his van. Mr Alexander was described as “trying to staunch him out”. Ms Leahy-Alexander yelled out to him. It appears Ms Leahy-Alexander’s verbal intervention worked because she next refers in her evidence to Mr Alexander leaving the property. She describes Mr Alexander as “getting messy” and that she needed to drop him off somewhere. Mr Alexander was intoxicated throughout these events.
Ariana Alexander
[12] The proposed evidence of Ms Alexander is of short compass, it reads as follows:
16. we have always been close however we have issues when [Jayden]
drinks, he always says he wants to kill someone, he gets very aggravated.
17.Jayden used to always make comments like “its time for some 187”, I think that is the American code for murder.
18.He was mainly saying this when he got out of jail last time however lately it slowed down and he didn’t say it as much.
19.
When he was in jailhe’d write letters to me saying he wanted to kill people, one time he sent a photo of a bullet with simply the words “Lavina and Shane”.
20.Lavina and Shane are our mum and dad.
21.I am unsure if I still have the letters.
Tahlia Heke
[13] Ms Heke’s proposed evidence comprises four parts. The first relates to what she describes as being Mr Alexander’s “fascination” with knives. She refers to his habit of acquiring and carrying knives which he comes across. Ms Heke refers to a pocketknife that was confiscated from him a week prior to the homicide. She described Mr Alexander as more recently carrying around with him a small white- handled knife that looked like a butter knife.
[14] Ms Heke refers to an incident in 2015 when Mr Alexander, in a grossly intoxicated state, laid down on the pavement. When people stopped to inquire if he was all right, he would get up, start abusing them, and try to fight. After lying down again if he heard someone nearby, he would, in Ms Heke’s words, “be like ‘fuck you, fuck you status’ and like ‘oh my God, 187, 187, I’ll fucking kill you’.” “187” is described by Ms Heke as being a code word for murder used by “gangsters”, with which she says Mr Alexander is fascinated.
[15] Ms Heke describes Mr Alexander as being “like he’s hypnotised when he’s talking about killing someone”. In her statement, Ms Heke states:
67.He used to ask me things like if I got caught killing someone would you have my back or would I snitch on him, would I join him, would I help him.
68.I was like, “Oh no, why are you asking me questions like this for”.
69.And then one day I was just like, “oh yeah I will”.
70.He was like “whatever no you won’t”.
71.I was like “yeah okay well then I don’t know, so stop asking me then, stop talking to me about it”.
72.He said that he’d enjoy murder.
[16] Ms Heke also describes an occasion when Mr Alexander grabbed a knife out of the sink and held it to her throat, threatening to kill her. Ms Heke dared him to kill her before Mr Alexander put the knife away. She describes having some scratches or knife marks from the incident.
[17] The final event about which Ms Heke gives evidence occurred about a week before the homicide. She describes being at an address with Mr Alexander when Ms Aranui and Mr Wano were also present. Ms Aranui and Mr Wano were having a conversation. Ms Heke describes Mr Alexander standing in the background and being left out. Mr Alexander pushed Mr Wano to the wall. Both brothers were intoxicated. Mr Wano’s reaction was to seek to calm Mr Alexander down, saying, “It’s cool, we’re all cool”, but Mr Alexander kept pushing him around and punching him in the chest. Both Ms Aranui and Ms Heke became involved and pushed Mr Alexander away before he stopped. Mr Alexander calmed down for a short period but then commenced
pushing and shoving Mr Wano again. Ms Aranui, her friend and Mr Wano went into a different room.
[18] While the others were in the other room, Ms Heke describes Mr Alexander using the knife he was carrying to poke her to get her attention. He said to her, “That baby’s dead” and “I’m gonna kill that baby”, before the others came back into the room. Mr Alexander then quickly put the knife away.
[19] Ms Aranui, her friend and Mr Wano returned to the room and commenced talking between themselves. Ms Heke describes Mr Alexander again becoming aggressive. He again began shoving and punching his brother. Mr Alexander was removed from the house by others. He was heard trying to knock on the window to get back in, and walking around to the locked back door. Ms Heke describes Mr Wano as feeling sorry for his brother and opening the door to let him in, however, that ended up with the two of them having “a little push around punch-up out the front, outside the gate”, after which Mr Wano came back inside. Mr Alexander continued to try to open the door but it was locked.
[20] At this point, Ms Heke refers to her own involvement with Mr Alexander. She opened the door and describes Mr Alexander as being “ready to stab me up”. She saw the tip of a blade pointing at her. Mr Alexander was whispering, “I’m going to kill you”. Ms Heke closed the door and locked it before going to get her own knife. She then describes a confrontation between the two of them outside where both attempted to use their respective knives on each other. Mr Alexander attempted to stab Ms Heke “in [her] gut area”, and she retaliated by trying to stab him in his neck. Mr Alexander made threats about killing her unborn baby. Ms Heke describes Mr Alexander as being very intoxicated and that, armed with a larger knife, she was able to force Mr Alexander to back off.
The Crown submission
[21] The Crown submits this evidence demonstrates various features of Mr Alexander’s propensity to act in a particular way or have a particular state of mind. In particular, the Crown submits this evidence is probative of the following:
(a)Mr Alexander’s short temper, aggressive nature and proclivity to overreact when intoxicated;
(b)His regular voicing of an intent to kill and fixation on the topic of murder, particularly when intoxicated;
(c)His propensity to carry knives; and
(d)His propensity to use a knife in altercations in which he has overreacted when intoxicated.
The defence position
[22] On behalf of Mr Alexander, Mr Rapley opposes the admission of the evidence. He accepts that evidence of Mr Alexander having an alcohol problem which makes him unpredictable and his general propensity when intoxicated to become angry and to often seek to fight people is admissible. A number of witnesses give evidence to that effect. However, he objects to evidence that goes further than this general type of observation.
[23] Having acknowledged that Mr Alexander will not be putting forward self defence, Mr Rapley submits that evidence of particular incidents such as those sought to be adduced by the Crown will have an unfairly prejudicial effect which is not outweighed by the evidence’s probative value. Mr Rapley submits the propensity evidence will unfairly predispose the jury against Mr Alexander, and risks being given disproportionate weight in reaching a verdict.
Legal principles
[24] It is necessary when determining the admissibility of propensity evidence to accurately identify the issues at trial in respect of which the proposed evidence is said to have probative value.2 The Court of Appeal in Bachelor v R, after considering the leading Supreme Court authority of Mohamed v R, held:3
2 Evidence Act 2006, s 43(2).
3 Bachelor v R [2012] NZCA 106; Mohamed v R [2011] NZSC 52, [2011] 3 NZLR 145.
[20] The task for the Court is not mechanically to identify points of similarity and dissimilarity but to determine whether there are aspects of the propensity evidence which are genuinely and logically relevant to the issue or issues the jury will have to determine. Then to weigh the probative value of that evidence against any potential unfairly prejudicial effect on the appellant.
[25] The Crown may only offer propensity evidence if its probative value in relation to an issue in dispute outweighs the risk of the evidence having an unduly prejudicial effect on the defendant.4 The assessment of the probative value of the proposed propensity evidence rests largely on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. However, the propensity evidence must have some specificity about it in order to be probative of a defendant’s tendency to act in a “particular way or to have a particular state of mind.”5
Decision
[26] The Crown in its written submissions submitted that the proposed propensity evidence was of probative value in determining the following issues:
(a)Whether Mr Alexander acted in self defence.
(b)Whether Mr Alexander was in “accidental” possession of the knife or whether it was intentional”. This issue was further described as being whether Mr Alexander had the knife in his hand as a weapon, or whether it was only in his hand because it was required to be used in the door, or because he had been cooking.
(c)Whether the physical element of the charge has been proved, namely whether Mr Alexander inflicted the stab wound that caused Mr Wano’s death.
(d)Whether the mental element of the charge had been proved, that is whether Mr Alexander intended to kill Mr Wano, or, alternatively, had
4 Evidence Act 2006, s 43(1).
5 Mohamed v R, above n 3,at [3].
an intention to cause him serious harm, being reckless as to whether death ensued.
(e)Whether the accounts of the five neighbours who heard the angry words spoken by a male voice were accurate.
[27] On the hearing of the application it became apparent that two of these issues were not realistically in play.
(a)Self defence
[28] Mr Alexander through his counsel expressly disavowed an intention to defend the charge on the basis he was defending himself from Mr Wano. As matters presently stand that will not be a live issue at trial. If there was to be any change to that position, then the admissibility of the propensity evidence would need to be reassessed accordingly.
(b)Mr Alexander’s possession of the knife
[29] A long boning knife was seized at the time Mr Alexander was apprehended sitting on the steps to the front door of the house. The knife was positioned on the step next to Mr Alexander. There is no dispute this is the knife with which Mr Wano was mortally wounded. Mr Rapley advised that it was conceded that Mr Alexander had the knife in his hand in the hallway when there was “pushing and shoving”. However, Mr Alexander’s position is that he did not know that he had stabbed his brother with it. There is no concession that he struck Mr Wano deliberately with the knife.
[30] Mr McRae on behalf of the Crown acknowledged that it was not sought to prove that Mr Alexander did not have a legitimate purpose for being in possession of the knife immediately prior to the altercation. There is evidence the knife has come from the kitchen of the address and that meat was being cooked that day. Importantly, knives were used to open doors in the house, and in particular the lounge door. For some reason, the door handles in the address have been removed and knives were often used to operate the mechanism that opens the door.
[31] Mr Alexander had become upset and angry earlier in the evening as a result of not being able to open the lounge door. It is the Crown’s case that the banging by Mr Alexander which caused his brother to get up from his bed a second time was again as a result of Mr Alexander’s frustration and anger at not being able to operate the lounge door. While the Crown’s case is that upon being confronted by Mr Wano, Mr Alexander’s purpose and use of the knife changed to an illegitimate one, the Crown does not seek to suggest his initial possession of the knife was for the purpose of using it against his brother, or that he had armed himself with the knife to use as a weapon.
[32] In those circumstances, I do not consider that Ms Heke’s evidence of Mr Alexander’s “fascination” with knives and his propensity to collect or carry knives has probative value. The issue at trial will not be whether Mr Alexander was in possession of a knife, nor as to how he may have come into possession of such a weapon. Rather, the issue will be whether he deliberately used the knife as a weapon on his brother.
[33]I turn now to the other issues which will be in contest at trial.
(c)-(d) Whether Mr Alexander inflicted the stab wound to Mr Wano and his state of mind at the time
[34] At the hearing of the application I sought clarification from Mr Rapley as to whether it was contested that Mr Alexander inflicted the stab wound to his brother. Mr Rapley advised that the issue at trial would be whether Mr Alexander was guilty of murder or manslaughter, which would turn upon whether the Crown could prove he had a murderous intent. It is accepted that Mr Alexander assaulted Mr Wano during a struggle in the hallway and that, as a result of that unlawful act, Mr Wano died. However, as I have already observed, Mr Alexander does not accept the Crown’s allegation that he struck his brother a deliberate blow with the knife. His position is that he did not know he had stabbed his brother.
[35] It follows that a more accurate formulation of the disputed factual issue is whether Mr Alexander deliberately stabbed Mr Wano with the knife. That issue is inextricably linked with the question of whether Mr Alexander had a murderous intent at the time Mr Wano was wounded.
Ms Leahy-Alexander’s evidence
[36] There is no dispute that Mr Alexander was in an angry and frustrated state immediately before the physical altercation with his brother in the hallway. He was intoxicated at the time, which is also not disputed. The proposed propensity evidence of Ms Leahy-Alexander is merely consistent with that undisputed evidence. Insofar as her proposed propensity evidence extends to Mr Alexander becoming aggressive and confrontational when intoxicated, I do not consider the detail of the self-reported incident in the supermarket, nor with the plumber at Ms Leahy-Alexander’s house, advances the evidence presently available to the Crown from those witnesses who speak of Mr Alexander having a problem with alcohol which makes him unpredictable, aggressive, and wanting to fight people. Ms Leahy-Alexander would also be able to give evidence in those general terms.
[37] If Ms Leahy-Alexander is challenged about her knowledge of how Mr Alexander is known by her to react when intoxicated, then reference could be made by the witness to those two incidents. In the absence of putting her knowledge of Mr Alexander’s conduct when intoxicated in issue, I consider reference to the details of those incidents is of limited probative value when assessed against its unfairly prejudicial effect. Ms Leahy-Alexander makes no reference to Mr Alexander resorting to a knife, or having one in his possession, at the time of these incidents.
Ms Alexander’s evidence
[38] Ms Ariana Alexander’s evidence that her brother has issues when he drinks and gets very aggravated is unobjectionable. However, I do not consider her evidence that when Mr Alexander is drunk he says he wants to kill someone, his “187” comments, nor his written threats to kill people including his parents, have any real probative application to the circumstances of Mr Wano’s death
[39] The Crown sought to rely on R v Derrick-Hardie as an example of where previous statements of an intent to kill have been permitted in support of proving the defendant’s murderous intent.6 However, in that case the statements tended to show
6 R v Derrick-Hardie [2012] NZCA 316.
that the defendant had turned his mind specifically to the situation that later presented itself, implying that he had contemplated killing somebody and using a knife to do so in circumstances comparable to those in issue. This was what was described by the Court of Appeal as a “precise coincidence” between his statements and his subsequent actions, which was decisive in assessing the evidence’s probative value.7 That is not the situation here.
[40] There is no suggestion of Mr Alexander setting out to kill someone at the house that night which can be linked to these earlier statements of intent. The circumstances of the physical altercation in the hallway, and the Crown’s case of Mr Alexander being aggressive and overreacting in his intoxicated state to his brother, is distinct from some persistent but latent general desire by Mr Alexander to kill someone, which he has previously articulated when intoxicated. Accordingly, I am not satisfied the evidence has sufficient probative value to overcome its illegitimate prejudicial effect. There is a very real risk that the admission of such evidence would result in the jury giving disproportionate weight to these earlier statements.
[41] For the same reasons, I do not consider Ms Heke’s evidence about Mr Alexander ruminating about killing someone and whether she would support him has sufficient specificity to be referable to the circumstances of Mr Wano’s death.
Ms Heke’s evidence
[42] I do not consider Ms Heke’s evidence relating to the incident in 2015, when Mr Alexander lay intoxicated on the pavement and abused and sought to fight people, as being probative of Mr Alexander having deliberately stabbed Mr Wano or of him having a murderous intent at that time. The 2015 street scenario is factually different. Mr Alexander did not have a knife and there is no evidence that anyone was actually attacked, although threats were made. It is not suggested by the Crown that Mr Alexander in his intoxicated state held any animus towards his brother, sought to fight him, or made threats to kill him prior to the confrontation in the hallway. Rather, it is the Crown’s case that Mr Alexander has a proclivity to overreact in response to
7 At [13].
someone challenging him or bringing him into line, as the Crown submits Mr Wano was doing in the hallway. That scenario is not comparable to the 2015 street incident.
[43] Similarly, Ms Heke’s evidence of Mr Alexander holding a knife to her neck and threatening to kill her is a different situation from the circumstances of the present alleged offending, and in particular the confrontation in the hallway between the two brothers. Despite the threat to kill and the holding of the knife to Ms Heke’s throat, no actual blow was struck. As with the 2015 street incident, evidence of this event lacks the necessary probative value in comparison to its unfair prejudicial effect.
[44] For the same reasons, I consider Ms Heke’s evidence about Mr Alexander poking her with the knife and threatening to kill her baby does not have sufficient linkage with how the Crown contends Mr Alexander reacted to being confronted by his brother in the hallway in order to have the necessary probative value to outweigh the risk of the illegitimate prejudice such evidence may have on the jury.
[45] However, Ms Heke’s evidence of an intoxicated Mr Alexander becoming angry and aggressive toward his brother does have parallels with the Crown’s case of how Mr Alexander came to stab his brother on the night of his death. The previous incident involves the same parties, Mr Alexander and Mr Wano. Mr Alexander appears to have become upset with his brother and, despite efforts by Mr Wano to calm Mr Alexander down, Mr Alexander pushes and punches him in the chest. After Mr Wano and Ms Aranui return to the room, Mr Alexander again becomes aggressive and pushes and shoves his brother before others intervene and throw him out of the house. On the third occasion, Mr Wano opened the door and went outside to see his brother and let him back in, only for that initiative to result in there being further pushing and punching before Mr Wano returns inside the house.
[46] This evidence supports that of other witnesses who refer to Mr Alexander’s propensity to become aggressive when intoxicated and to physically engage with others in an aggressive manner, in respect of which it has been responsibly acknowledged there can be no objection. It is evidence which demonstrates that during a physical altercation Mr Alexander is persistently the aggressor while his brother seeks to calm the situation. It is Mr Alexander, intoxicated and angry, who in
such a situation is the one who seeks to attack his brother. In the absence of any knife being produced, or any attempt to strike Mr Wano with such a weapon, the evidence has limitations. In that regard, I note that Ms Heke’s evidence appears to be that at the time of these altercations Mr Alexander did have a knife on his person. However, this evidence of Mr Alexander’s aggressive conduct towards his brother is not dissimilar to that which the Crown on its case contends occurred in the hallway when the homicide occurred a week later.
[47] In my view it is evidence which legitimately can be taken into account by the jury when assessing the nature and intent of an intoxicated Mr Alexander at the time of the confrontation with his brother. I do not consider the evidence carries to any material degree any unfair prejudice that cannot suitably be managed by appropriate directions. As I have already observed, there are aspects of the evidence which the defence will be able to highlight as countering the inference which the Crown seeks to draw from it. I have confidence the jury will be able to objectively assess the probative value of this evidence as one part of all the evidence which may bear on Mr Alexander’s actions in the hallway and his state of mind.
[48] Ms Heke’s evidence of being confronted by Mr Alexander with a knife and his alleged attempt to use it on her is also probative evidence the Crown is entitled to lead for propensity purposes. This evidence is capable of showing that on a recent previous occasion Mr Alexander was prepared to use a knife as a weapon when intoxicated, during a physical confrontation with another person who was known to him. At that time, Mr Alexander whispered to Ms Heke, “I’m going to kill you”, which again is evidence capable of being used to assess Mr Alexander’s, albeit intoxicated, intentions in using a knife in a situation of confrontation, and his apparent knowledge of potential consequences in so doing.
[49] I accept that a difficulty with the proposed propensity evidence is that it is contested. Before the jury could potentially use this evidence, they would have to be satisfied the Crown has proved the incident. There is therefore a risk that the incident involving Ms Heke and Mr Alexander could essentially become a mini-trial within the trial itself. That, however, is no different from any other contested piece of evidence, nor to the situation where a number of offences are tried together which are capable
of providing propensity evidence in support of each other. I do not consider this evidence will needlessly prolong the trial.
[50] The evidence, should it be accepted by the jury, is capable of showing Mr Alexander’s propensity to become aggressive while intoxicated and to overreact to the situation he faces, even when the person is well-known to him. In that regard, Ms Heke’s evidence about Mr Alexander confronting her with a knife and attempting to use it on her is an example of that more general evidence of Mr Alexander’s proclivity to act in a particular way when intoxicated, about which other witnesses speak. However, her evidence, including as it does the actual use by Mr Alexander of a knife when confronted by another, has the necessary specificity to demonstrate a tendency to act in a particular way, or have a certain state of mind, which can be linked to Mr Alexander’s alleged conduct and mental state at the time Mr Wano was fatally wounded in the hallway of his address.
[51] The assessment and application of this propensity evidence will be for the jury, aided by appropriate judicial directions. Having concluded that the evidence has probative value which outweighs the risk that it may have an unfairly prejudicial effect on Mr Alexander, I do not consider the jury will afford it disproportionate weight, nor that it will unfairly predispose the fact-finder against him.
(e)The accuracy of the accounts of the neighbours who heard shouting at the relevant time
[52] To the extent that I have excluded evidence of Mr Alexander on previous occasions uttering or shouting threats to kill of a type similar to those heard by neighbours, such evidence can be reassessed at trial. Its potential admissibility would only be in rebuttal to challenges made by the defence to the accuracy of the evidence of the neighbours about the words they heard. The admissibility of such evidence would need to be assessed against the nature and extent of any such challenge, and the extent to which any discrete evidence of Mr Alexander’s propensity to make such a threat could be used to corroborate the witnesses’ evidence.
Conclusion
[53] I make orders ruling the proposed propensity evidence of Ms Leahy- Alexander, (paragraphs 47-59) and Ms Alexander (second part of paragraph 16, after “he drinks”, to paragraph 21) inadmissible. Similarly, I rule paragraphs 23-87 of Ms Heke’s evidence inadmissible. Paragraphs 88-93 and 97-121 of Ms Heke’s evidence I rule admissible. Ms Heke’s statement is, I understand, taken from a transcript of a recorded interview. Care will need to be taken to elicit evidence from her only of what she heard and saw, rather than theory, opinion or supposition on her part which is inadmissible. I also note there should be no reference to the knife, as contained in paragraph 88.
[54] For fair trial reasons, there will be an order prohibiting publication of the judgment and any part of the proceedings (including the result) in the news media or on the internet or other publicly available database until final disposition of the trial. Publication in a law report or law digest is permitted.
Solicitors:
Gresson Dorman & Co, Timaru
James Rapley Barrister, Christchurch
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