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 circumstances relating to the text messages provide reasonable assurance that they are reliable for purposes of s 18. She contended that there is no reliable evidence attributing the text messages to Mr Anderson;  that  would  require  a  search  warrant  for  the  relevant  telephone company to determine ownership of the phones, and a search of call or text records to confirm that the phones were used to send and receive the messages.  It would be necessary to interview Mr Anderson and put these matters to him.  For the Crown, Mr Horsley disputed that the text messages are hearsay, as the Evidence Act defines that term;  they may not be assertions of any matter, nor are they offered to prove the truth of their contents.

[5]      In argument, however, Ms Vidal acknowledged that the text messages, if written by Mr Anderson, are defendant’s statements and so admissible under s 27 unless excluded under ss 28 – 30.   The issue is not whether they are hearsay, but whether there is sufficient evidence that he wrote them.  That issue does not arise under s 27, which presumes that the statement is that of the defendant.   Rather, it must be determined under the general principles governing admissibility, which are found in ss 7 and 8.  And the evidence immediately in issue is not the text messages themselves, but rather the evidence on which the Crown relies to attribute them to Mr Anderson.

Discussion

[6]      Section 7  establishes  the  fundamental  principle  that  relevant  evidence  is admissible and irrelevant evidence is not.  Evidence is relevant if it has a tendency to

prove or disprove anything that is of consequence to the determination of the proceeding.  Relevant evidence is admissible unless excluded or inadmissible under the Evidence Act or any other Act.

[7]      Accordingly, the first question for the Judge was whether there was evidence tending  to  prove  that  Mr Anderson  wrote  the  texts.    The  second  question  was whether that evidence ought to be excluded under s 8 on the ground that it will have an unfairly prejudicial effect on the trial.

[8]      So far as the first of these questions is concerned, Ms Vidal argued that the Judge had to be satisfied, on the balance of probabilities “at least”, that Mr Anderson was in fact the author of the messages.   We think that submission confuses the respective roles of judge and jury.  Faced with a challenge to admissibility of any given item of evidence, the Judge had only to be satisfied that the item concerned tended to prove Mr Anderson’s authorship.  It would do so if it made his authorship more probable than it would be without that evidence.  If so, it was relevant and so prima facie admissible.  The jury will answer the question whether Mr Anderson was in fact the author.

[9]      The  evidence  comprises  the  admission  by  Mr Anderson  in  his  police interview and Ms Smythe’s evidence that she had entered his cellphone number in her  own  phone,  which  attributed  the  messages  that  she  received  to  him.    The messages  themselves  might  also  tend  to  show  Mr Anderson  was  the  author, depending on their content, but they are not in evidence on this appeal.

[10]     Ms Smythe’s evidence and Mr Anderson’s admission both plainly tend to show that he wrote the messages.  Both are accordingly relevant.  There is nothing before us to suggest that the evidence will have an unfairly prejudicial effect on the trial.

[11]     Leave to appeal is granted but the appeals are dismissed.

Solicitors:

Queenstown Legal Chambers, Queenstown for Appellant

Crown Law Office, Wellington