R v B HC Auckland CRI 2008-404-62

[2008] NZHC 2448

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0062

THE QUEEN

v

B

Hearing:         30 July 2008

Appearances: J Down for the Crown

C Wilkinson-Smith for the accused

Judgment:      30 July 2008

(ORAL) RULING OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

C Wilkinson-Smith, PO Box 276 167, Manukau, Auckland 1702

R V B HC AK CRI 2008-404-0062 30 July 2008

Introduction

[1]      The  accused  B    is  facing  trial  on  an  indictment containing four counts.   There are two counts of aggravated robbery, one of kidnapping and one of offering to supply methamphetamine.

[2]      The two aggravated robbery counts are relevant to this application.  Counts 1 and 4 in the indictment allege:

1.    THE CROWN SOLICITOR AT AUCKLAND charges that MATHEW GRANT BEAZLEY between 1 September 2006 and 31 October 2006, at Auckland, being armed with offensive weapons namely a stun gun and a torch robbed Richard Leslie Smith of a Holden motor vehicle.

4.    THE  said  Crown  Solicitor further  charges  that  MATHEW  GRANT BEAZLEY between 1 November 2006 and 31 December 2006, at Auckland,  being  armed  with  an  offensive  weapon  namely  a  knife, robbed Ross Stewart Hood of a Honda motor vehicle.

[3]      At the conclusion of the defence evidence, Mr Down for the Crown made an application for a ruling regarding propensity evidence.  The application related to the possibility of the Crown referencing, in closing, the similarity between the factual circumstances giving rise to count 1 and those giving rise to count 4.   The determination of the application turns on the propensity rules in s 43 of the Evidence Act 2006 (the Act).

[4]      Mr Down observed that there had been an earlier pre-trial application by the defence seeking severance of counts 1 and 4.  This matter came before Wylie J on 7

May 2008, at which time the Crown took the position that both counts should be heard together on the basis of the provisions in s 340(6) of the Crimes Act 1961. The question of severance was resolved by Wylie J on that discrete basis.  The Court recognised that this subsection was a legislative endorsement of a general connection between repeated crimes of dishonesty: see R v B   HC AK CRI 2008-404-

000062 7 May 2008, Wylie J at [22].

[5]      Accordingly the cross-admissibility issue, relating to the evidence supporting each of the two counts under the propensity rules, was not resolved.  It was entirely

appropriate that the point was not determined then, because the Court is now in a better position to do so having heard all the evidence.

Crown application

[6]      Mr Down’s application was based on the high internal similarity between the circumstances relating to the two alleged offences.   Mr Down drew the Court’s attention to various factual matters which he submitted supported the proposition that  the  Crown  ought  to  be  able  to  rely  upon  these  internal  similarities.    He contended that there was a clear pattern of the factual circumstances common to both counts and relevant to issues in each count.

[7]      An important question that arises when the prosecution is seeking to offer propensity evidence about a defendant in a criminal matter is the nature of the issue in dispute in respect of which it is said that the evidence has probative value: see s 43(1) of the Act; see also The Evidence Act 2006: Act  & Analysis (2007  ed) Mahoney McDonald Optican & Tinsley, EV43.04.  In a similar vein is the statutory direction in s 43(2) of the Evidence Act that, “when assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.”

[8]      A key issue in this case is the veracity of the complainant Mr Smith for count

1, and that of the complainant Mr Hood for count 4.  Mr Down observed that the defence contention in relation to Mr Smith was that he was manufacturing these allegations  against  Mr  B    in  order  to  save  his  own  skin  over  an  alleged insurance fraud concerning a claim made on his insurance company in relation to the Holden motor vehicle, said to have been the subject of the robbery.

[9]      In  relation  to  count  4,  the  defence  contention  is  that  the  complainant Mr Hood was also making up much of what he said about this incident, involving the loss of his Honda motor vehicle, in order to avoid prosecution in relation to the purchase and use of methamphetamine.  Thus, a similar attack was being made on the veracity of each of the complainants.  The common feature here is the veracity or

credibility  of  both  of  the  Crown  witnesses  relating  to  the  details  of  events surrounding the circumstances in which each was deprived of their motor vehicle.

[10]     Further, in terms of the issues to which propensity is relevant, it is not just a question of the veracity of these two witnesses, but also of the actual occurrence of these events as a matters of fact.

[11]     Mr Down submitted it was stretching credulity to say that both complainants were making up fundamental aspects of their allegations against Mr B  .   In terms of relevance, he submitted that the occurrence of the incident in count 1 involving Mr Smith made it more likely that the incident in count 4 happened, bearing in mind the high degree of similarity between these two incidents.   There was a clear pattern of conduct which was relevant to the resolution of the issues identified.

Applicable principles

[12]     When assessing the probative value of particular propensity evidence under s

43(1) of the Act, the Court is directed to take into account, among other things, the various matters set out in s 43(3) of the Act. This subsection provides:

(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.

Relevant factors

[13]     Mr Down carefully took me through the various relevant factors and pointed first to the close connection in time between these two separate events.  Neither of the complainants knew each other.  Neither were aware that the other incident had happened and even the Police did not make a connection until the later stages of their investigation.  Mr Down referred to the fact that these incidents were separated in time only by between one and two months as being a factor relevant to the consideration in s 43(3)(b) of the Act.

[14]     In terms of the extent of the similarity between the acts and events or the circumstances which are the subject of the evidence relating to the two counts (see s 43(3)(c)), Mr Down referred to the following features of the evidence:

a)        Both complainants were vulnerable in certain respects.

b)The accused isolated the individuals concerned in a house, in each case being assisted, at least initially, by an associate.

c)       There  were  similarities  in  the  way  in  which  each  individual  was required to hand over the keys, or in the case of Mr Smith, his motor vehicle.  It was the same type of property that was taken in each case.

d)       Each incident involved the use of weapons and threats of violence.

e)       There  were  threats  of  retribution  in  each  case  if  the  taking  was reported to the Police.

[15]     In terms of s 43(3)(d) of the Act, the number of persons making allegations against the accused in this case is obviously two.   What the Crown seeks is the ability to rely on the similarities just referred to and the pattern of conduct in relation to the two separate counts of aggravated robbery.

[16]     Mr Down accepted that there was nothing of the type referred to in s 43(3)(f)

in terms of unusual features that applied in this case.

[17]     Mr Down submitted that there had been no suggestion in the evidence of any collusion between Mr Smith and Mr Hood: see s 43(3)(e) of the Act.   But Mr Wilkinson-Smith relied on the notion of suggestibility which is also mentioned in s

43(3)(e), a point to which I will return shortly.

[18]     In summary, Mr Down submitted that the probative value of the evidence on a comparative basis was strong and outweighed any risk of prejudice.  In particular, it more than balanced any risk that the evidence may have an unfair prejudicial effect on the accused.

Defence submissions

[19]     For the accused, Mr Wilkinson-Smith focussed the main part of his argument on the suggestibility issue referred to in s 43(3)(e) of the Act.  He submitted that it was Detective Sergeant Howard that sought out both complainants in the course of his  investigation.     He  went  to  the  individuals  concerned  and  suggested  that Mr B   was involved in the taking of their respective motor vehicles.   Such “suggestibility” arose because Detective Sergeant Howard approached, spoke to the complainants and invited them to make statements about Mr B   and in so doing suggested Mr B  ’s name to the complainants.

[20]     In fairness, Mr Wilkinson-Smith did not make any allegation that Detective Sergeant Howard may have influenced the detailed content of the statements that the witnesses made or the evidence which they were to give in Court.   There was no basis whatsoever for him to do so.  Indeed, Detective Sergeant Howard was not even called or required to give his evidence. His evidence was read to the Court.

[21]     Mr Wilkinson-Smith next responded to the various submissions made by

Mr Down.  In particular, he submitted that the extent of the similarities relevant to s

43(3)(c) was not great.   There were differences between the incidents and such differences were material.  He submitted that it could not be said that there was a high degree of similarity between the acts, omission or circumstances.

[22]     Mr   Wilkinson-Smith   submitted   that   if   Detective   Sergeant   Howard’s suggestion to the two complainants of Mr B  ’s involvement was not able to be taken into account under s 43(3)(e) of the Act, then it was appropriate that this aspect be taken into account as another factor against admissibility on a propensity basis. He submitted that the list of factors in s 43(3) is non-exhaustive.  I agree with this submission and accept that it is appropriate to weigh this factor (for what it is worth) as a separate factor.

Discussion

[23]     The approach to collusion and suggestibility set out in s 43(3)(c) of the Act differs from the position at common law.  Previously, when a Judge was determining the admissibility of propensity evidence offered by the prosecution, the Judge was required to assume the truth of the allegations made by the prosecution witnesses and leave to the jury the task of deciding on the truth or falsity of the allegations.   In other words, the Judge could not take into account any defence arguments about collusion or suggestibility: see Adams on Criminal Law – Evidence at EA43.07(4). Now it is necessary for the Judge making a ruling under s 43 of the Act to consider the issue of collusion or suggestibility: see R v Wyatt CA311/07 10 October 2007.

[24]     An important consideration in this context is the meaning of suggestibility in s 43(3)(e) of the Act.  I note that the section places suggestibility on an equal footing with collusion.   It may well be that this was on the basis of the discussion on suggestibility in the leading House of Lords decision R v H [1995] 2 WLR 737. The case discussed how a suggestion of collusion should be dealt with (and left for the jury to consider). It also concluded that a similar approach should be taken in respect of what their Lordships referred to as the “unconscious influence of one witness by another” (per Lord Mackay at 749), or “innocent infection” (per Lord

Mustill at 753).   I agree with the observation in The Evidence Act 2006: Act & Analysis at EV43.07 that, “such concepts appear to fit in nicely within s 43(3)(e)’s label of “suggestibility”.”

[25]   I interpret the reference to “suggestibility” in s 43(3)(e) of the Act to suggestibility as between one witness and another.  The factual question for the jury will be whether there has been some active influence by one witness upon the other which would amount to collusion, or an unconscious influence of one witness upon another of the type which Lord Mackay referred to as “innocent infection”.

[26]     One could imagine that, if there were an allegation that a third party was involved in causing the evidence to be “infected” or contaminated (which is not the allegation which the defence has made here against Detective Sergeant Howard), it would need to go much further than what occurred in this case.   The Detective Sergeant is said to have mentioned the name of Mr B   as a possible offender to the complainants in relation to the taking of the motor vehicles.  It would require that the Detective Sergeant had gone further and suggested details to the witnesses regarding precise factual circumstances and the precise way in which events on the two  separate  occasions  unfolded.    Nothing  of  that  type  has  emerged  from  the evidence of either Mr Smith or Mr Hood.  Moreover, as noted, Detective Sergeant Howard was not called as a witness.

[27]     I  am  therefore  satisfied  that  there  is  nothing  in  the  point  regarding suggestibility, as raised by Mr Wilkinson-Smith, that I should take into account. This is particularly so because the identity of Mr B  , either generally or in respect of each of the two witnesses, was not in dispute.  My conclusion is that there was no collusion and no suggestibility or innocent infection of the one complainant by the other or by anyone else.   I find on the evidence that Detective Sergeant Howard played no part in the shaping of the statements or the evidence, and certainly had  no  involvement  in  influencing the  detail  of  the  evidence that  either  of  the complainants gave.

[28]     I agree with the submission made by Mr Down that the interpretation of s 43(3)(e) of the Act is linked to the wording in s 43(3)(d).  In (e), the reference is to

“the allegations described in paragraph (d)”.  The focus of the Court’s inquiry must be on the making of the allegations, their nature, similarity and precise content.

[29]    Although I have rejected Mr Wilkinson-Smith’s submission both on the interpretation of s 43(3)(e) of the Act and on the facts, nevertheless, as noted above, I am prepared to take the point into account as a separate factor to be weighed against admissibility.

Balancing

[30]     It is necessary for the Court, in dealing with a matter under s 43 of the Act, to weigh the probative value of the evidence at issue and to determine whether such probative  value  outweighs  the  risk  that  the  evidence  might  have  an  unfairly prejudicial effect on the accused.

[31] I am satisfied that the timing of the two incidents is reasonably close in proximity, each occurring within as little as one month and up to two months of the other, but that is all. So far as the similarity between the acts, events and circumstances is concerned, there is a significant degree of similarity for the reasons outlined in the submissions by Mr Down, summarised at [14] above. I have already dealt with the question of collusion. There was none. Neither was there any suggestibility of the type required by s 43(e) of the Act.

[32]     So  far  as  Detective  Sergeant  Howard’s  role  in  raising  the  name  of  Mr B   with the complainants, I do not place any weight on that at all, even as a separate factor.  The Detective Sergeant was merely conducting his investigation and properly exploring all avenues of inquiry.

[33]     I consider that the probative value of the evidence outweighs any prejudicial effect.  It will be necessary for me to give appropriate directions to the jury and, of course, I will warn the jury that they should deal with each charge separately.  Then I will give an appropriate propensity direction enabling the Crown to rely on the similarities between the two events and the pattern involved relative to the issues to be decided.   I will also refer to the fact that the jury should, in any event, guard

against thinking that if the accused has a tendency to behave badly then he must be guilty.  Obviously, that would be false logic and unfair.

[34]     For completeness, I note that Mr Wilkinson-Smith did not raise as a separate basis for exclusion a submission under s 8 of the Act that the evidence would have an “unfairly prejudicial effect” (s 8(1)) or that the accused was denied the right “to offer an effective defence” (s 8(2)).  Had he done so the submission would have been rejected.  The propensity point is resolved by the application of the principles in s 43 of the Act.  Also, there is no basis for a submission that the outcome has an unfairly prejudicial effect on the accused.   Finally, the accused is fully able to argue his primary defence before the jury based inter alia on veracity of the witnesses.

Result

[35]     The application by the Crown is granted.  Counsel may address the jury on the propensity point and I will direct the jury as I have indicated.

Stevens J