R v Anderson - [2007] NZCA 554

ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA537/07 [2007] NZCA 554

THE QUEEN

v

GLENN JOHN ANDERSON

Hearing: 22 November 2007
Court: Hammond, John Hansen and Miller JJ Counsel: S G Vidal for Appellant
B J Horsley for Crown

Judgment: 3 December 2007 at 2.15 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted but the appeals are dismissed.

BOrder prohibiting publication of the judgment or the reasons therefor in news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest
permitted.

R V ANDERSON CA CA537/07 3 December 2007

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] Mr Anderson seeks leave to appeal against a pre-trial ruling in the District Court. In a decision of 21 May 2007, Judge Phillips declared that text messages and admissions were admissible at his trial on charges of threatening to kill Daniella Smythe and assaulting her. He abandoned an appeal against a decision of
31 August, in which Judge Wolff allowed the Crown to lead Ms Smythe’s evidence by way of video link from the United Kingdom, where she now resides.

[2] Mr Anderson and Ms Smythe lived together for a time in a flat at 24 Frankton Road, Queenstown. The relationship ended in May 2006, and the Crown case is that some days later he entered her room in a very intoxicated condition, refused to leave, and then lost control and punched her. For about a week after that he sent her text messages. There were about 43 of them, and they are said to have included the threat to kill her. The officer in charge of the case photocopied the messages that appeared in the in-box of the phone, and the Crown proposes to introduce the photocopies into evidence. He is said to have admitted in a police interview that he sent the texts by way of retaliation.

The District Court decision

[3] The challenge to the text messages was mounted on the ground that they were hearsay. Judge Phillips reasoned that the complainant is able to give direct evidence that she received a number of text messages, and that they were attributed by her phone to a number that she had entered for the appellant. Evidence of that sort is admissible to associate the appellant with the phone number. Accordingly, the text

messages were not hearsay at all. Alternatively, there was a chain of circumstantial evidence on which a properly directed jury could find that the text messages originated from the accused.

The appeal

[4] It was common ground that the appeal falls to be considered under the Evidence Act 2006. Ms Vidal contended initially that the text messages must be hearsay. As such, the question is whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Anderson

Details

AGLC: R v Anderson [2007] NZCA 554
Case: [2007] NZCA 554
Decision Date: 3 December 2007

CaseChat Overview and Summary

In the case of R v Anderson, Glenn John Anderson appealed against a pre-trial ruling in the District Court which held that text messages and admissions were admissible at his trial on charges of threatening to kill Daniella Smythe and assaulting her. The case was heard by the Court of Appeal of New Zealand on 22 November 2007 and the judgment was given on 3 December 2007. The central legal issues in this case were whether the text messages in question were hearsay and, if so, whether they were admissible under the Evidence Act 2006.

The court held that the text messages were not hearsay as they were not assertions of any matter and were not offered to prove the truth of their contents. The issue, instead, was whether there was sufficient evidence to attribute the text messages to Mr Anderson. The court found that the text messages, if written by Mr Anderson, were defendant's statements and thus admissible under s 27 unless excluded under ss 28–30. The court concluded that the evidence in issue, namely the admission by Mr Anderson in his police interview and Ms Smythe's evidence, tended to prove that Mr Anderson wrote the messages and was therefore relevant and admissible. The court further held that there was nothing to suggest that the evidence would have an unfairly prejudicial effect on the trial.

The court granted leave to appeal but dismissed the appeals, and ordered that the judgment or the reasons therefor should not be published in news media or on the internet or other publicly accessible database until final disposition of the trial. However, publication in a law report or law digest was permitted.

Orders