R v Balkind

[2019] NZHC 257

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2018-006-096

[2019] NZHC 257

THE QUEEN

v

ANN SHIRLEY BALKIND

Hearing:	22 February 2019
Counsel:	M A O’Donoghue and J W Cameron for Crown R A Harrison and E J Riddell for Defendant
Judgment:	26 February 2019

JUDGMENT OF CHURCHMAN J

[1]    The Crown has given notice of intention to call propensity evidence. That is objected to by the defendant, therefore, pursuant to s 101 Criminal Procedure Act 2011, I am required to make a pre-trial order as to admissibility.

[2]    The trial in this matter relates to one count of murder. The defendant is charged with murdering her former partner, Mr McPherson.

[3]    Initially there were a large number of items of evidence which the Crown proposed to call that were challenged by the defence. The grounds for challenge varied but included the fact that the evidence had been improperly obtained, and that it was inadmissible propensity or hearsay agreement. Most of the objections raised by defence counsel have been resolved, either prior to the hearing or during the course of argument. However, there is still an outstanding issue in relation to propensity

R v BALKIND [2019] NZHC 257 [26 February 2019]

evidence. The particular propensity evidence in issue is a passage of evidence in relation to the proposed statement of Ethan McPherson together with another passage in the statement of Graham Ian Morris and that passage is also referred to in the evidence of Chris Benjes.

[4]    The passage in relation to Ethan McPherson which the defendant still objects to says:

There were many occasions when I saw her slap and punch Dad as he would be putting her back to bed.

He showed me scratches on his neck where she had clawed at him and bites to the arms, chest and back at various different times over the period.

I cannot say the precise dates and times of each of these incidents, it happened very regularly.

The bite mark on his back up by one of his shoulder blades was a particularly nasty one that broke the skin.

[5]    In relation to the evidence of Mr Morris, the passage objected to appears at page 10 of his statement and reads:

When I moved in Shirley pointed out a bedroom door in the house which had knife marks in it.

I think we were talking in the kitchen area at the time and I am not sure how long it was after I moved back in.

Shirley told me that she had had a row with Chris and that he had gone into his bedroom.

She told me that she was that wild that she wanted to kill him.

Also that she grabbed a knife and tried to stab him through the door.

[6]    That passage is also supported by evidence in the proposed brief of evidence of Chris Benjes.

[7]    In terms of the propensity evidence, the Crown have said that because one of the issues raised is self-defence, they are under an obligation to negative that defence and should be permitted to lead propensity  evidence.   The theory developed by    Mr O’Donoghue for the Crown in relation to propensity was that:

(a)the defendant would drink alcohol;

(b)having done that she would get into a domestic argument;

(c)she would then become angry and aggressive; and

(d)she disproportionately over-reacted resulting in responses such as threats or the production knives.

[8]    The particular context for this was the fact that the incidents that the Crown proposed to call evidence on related to domestic partners. The Crown have specifically said that the evidence which it is proposed to call will not be used to establish mens rea.

[9]The defendant opposed the application on a number of grounds:

(a)That the evidence was not propensity evidence, that at most it was relevant to show the defendant had been in abusive relationships in the past.

(b)The evidence is unfairly prejudicial, that there would be a risk the jury would misuse it by improperly rationalising that Ms Balkind uses knives in all confrontations rather than properly considering the circumstances of the previous incidents.

(c)A full consideration of the previous allegations would overwhelm the trial and would become a trial within a trial, whereas the jury should be focusing on the circumstances in the lead up to the death of the deceased, in particular, Ms Balkind’s state of mind in the campervan in the hour before the incident.

[10]   In relation to the evidence that was proposed to be called from Mr Morris, there was a further ground of objection namely, that it had occurred so far in the past that it lacked evidential value.

[11]   It was also submitted in relation to the evidence proposed to be given by Ethan McPherson that it lacked the same flavour as the evidence admitted in the cases of Keefe v R and R v Ford.1 It was submitted that the evidence did not mention knives, it was the implication that because knives might not have been used, it did not fit within the matrix for which the Crown wished to adduce propensity evidence.

[12]   In relation to Mr Benjes’ evidence, it was submitted that he was so unreliable that none of his evidence should be put to the jury.

[13]   There was also an objection which applied to all of the propensity evidence on the basis that it was said that an element of the Crown’s theory was that the defendant was in a state of gross intoxication and that the propensity evidence could be distinguished from the evidence relating to the index event in that on the night of the alleged murder, the Crown could not establish that the defendant was grossly intoxicated.

[14]   I will now address the relevant law. Section 40(1) Evidence Act 2006 defines propensity evidence as follows:

(1)In this section and sections 41 to 43, propensity evidence –

(a)Means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b)Does not include evidence of an act or omission that is–

(i)     one of the elements of the offence for which the person is being tried; or

(ii)    the cause of action in the proceeding in question.

[15]In the case of Mahomed v R, it was said that:2

The rationale for the admission of 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.

1      Keefe v R [2014] NZCA 113; R v Ford HC Auckland CRI-2010-044-000312, 22 July 2011.

2      Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.

[16]   The prosecution may only offer propensity evidence about a defendant if the evidence has a probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudicial effect.

[17]   Section 43 Evidence Act provides a non-exhaustive list of consideration relevant to an assessment of proposed propensity evidence:

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 proceedings which outweigh 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 commissions, events, or circumstances that are the subject of the evidence have occurred:

(b)the connection in time between the acts, omissions, events, or circumstances that 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 that 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 person 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 that 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.

Analysis

[18]   The nature of the issue in dispute is whether the defendant was acting in self- defence.

[19]The s 43(3) factors said to be relevant are:

(a)The acts which are the subject of the evidence had occurred reasonably frequently over a period.

(b)The connection in time varies but is up to six years prior to the current matter.

(c)There is a degree of similarity between the proposed propensity evidence and the present allegations in that:

(i)the victims were all male domestic partners;

(ii)alcohol was involved;

(iii)there was the introduction of a knife; and

(iv)incidents happened at home during domestic disputes.

(d)There is no evidence of collusion.

[20]   The Crown submitted that a difference in seriousness does not, of itself, deprive propensity evidence of probative value. To draw a distinction based on severity when the act falls within the same spectrum or category of offending is artificial. This is said in reliance on R v Khan:3

3      R v Khan [2010] NZCA 510 at [25].

We also accept the Crown submission that the fact the current offending involves allegations of actual touching is immaterial. A difference in the seriousness of offending will not, of itself, outweigh the probative value of the propensity evidence. Such differences may merely reflect the circumstances in which the offending occurred, and the opportunity presented to the offender.

[21]   The Crown submits that the Court’s focus must be upon similarity rather than points of difference and striking similarity is no longer required.4 I accept that submission.

[22]   A decision whether a particular type of conduct is unusual is made not by reference to the population of offenders who behave in that way, but by reference to the community at large. The Crown submits it is uncommon for one partner, after drinking alcohol and arguing in a domestic setting, to threaten or attempt to stab the other partner with a knife.

[23]The nature of the issue in dispute, self-defence, will require a consideration of:

(a)the circumstances as the defendant believed them to be;

(b)whether, in the circumstances, the defendant stabbed the deceased in self-defence, and

(c)whether, in those circumstances, the force used by the defendant, namely stabbing him twice, was reasonable.

[24]   Both the Crown and the defence brought to the Court’s attention the case of Keefe v R in which the Court of Appeal upheld in part a High Court ruling that propensity evidence was admissible at the defendant’s trial on a charge of manslaughter.5 The proposed  propensity  evidence  was  of  two  incidents  where Ms Keefe had threatened the deceased with a sharp weapon. The Crown wished to use the evidence to assist the jury in assessing that the circumstances were as Ms Keefe perceived them to be and to support its case that Ms Keefe’s use of a knife was disproportionate to the threat.

4      O’Reilly v R [2011] NZCA 32.

5      Above no 1.

[25]   The Court ruled that the evidence was not admissible on the issue of whether the defendant stabbed the victim deliberately (the defendant claiming it was accidental) but it was admissible in the event that the Judge was required to direct on self-defence. The evidence was relevant for the Crown’s purpose and could cast doubt on Ms Keefe’s version of events in which the deceased was the aggressor and she had reacted to his aggression.

[26]   The two propensity incidents were evidence of Ms Keefe’s propensity to act aggressively and use of a weapon when in confrontation with the deceased. The fact that the two incidents involved a form of threat with a weapon and the alleged offending involved use of a weapon gave the evidence a strong probative value.

[27]   The Crown submits that in this case the propensity evidence demonstrates the defendant’s propensity to overreact with a weapon when in a domestic argument. All of the propensity incidents involve use or threat of actual violence in most cases with a weapon and the alleged offending in this case obviously involves a weapon.

[28]   The Crown notes that the victim of the propensity incidents and the victim in the current matter were domestic partners of the defendant at the time and the offending occurred in a domestic context.

[29]   I note that the defence dispute that Mr Benjes could be said to be a domestic partner of the defendant, however, ultimately that will be a matter for the jury. There is, on the basis of the evidence that the Crown proposes to call, sufficient evidence for a jury to conclude that he was, in fact, a domestic partner of the defendant rather than a boarder.

[30]   The defence submits that this case can be distinguished from Keefe where it is submitted that the propensity evidence was highly specific to the nature of the particular relationship between the appellant and the deceased.

[31]   The proposed evidence, it is submitted, does not assist to show that Ms Balkind was not afraid of the deceased, as it did in Keefe. Nor does it suggest that she was the aggressor and in control of any of the previous situations.

[32]   The Crown brings to the Court’s attention the case of R v Ford in which the female defendant was charged with murdering her male domestic partner.6 The incident occurred in the context of a violent domestic dispute where a witness saw the deceased punch the defendant in the head several times outside their house. The couple went inside and a loud argument was overheard. The deceased died from a single stab wound to the chest with a kitchen knife.

[33]   The propensity evidence in that case was four incidents of the defendant offering violence in domestic situations.7 Two of those incidents related to her attacking a former partner with a weapon, namely a screwdriver on one occasion and a vacuum cleaner pipe on the other. The Court held the evidence admissible on the issue of the credibility of the defendant in relation to a possible self-defence argument as being relevant to all three limbs of the self-defence inquiry.8

[34]   The Crown submits that the current matter bears similarities regarding the domestic context, the drinking of alcohol, an argument, threats and use of a weapon, a claim of domestic violence, and the fact that self-defence is in issue. It is also said to present as highly relevant that in the case of Ford, even where domestic violence was established, the propensity evidence was admitted.

[35]   The defence submits that one of the propensity incidents in Ford involved an actual stabbing with a screwdriver and a complainant who had puncture wounds visible to independent people. The connection in time was much more meaningful with the propensity incident being just over a year prior to the alleged murder. The evidence was put forward primarily to establish that it was more likely that it was  Ms Ford that stabbed the deceased rather than the flatmate who the defence were potentially going to accuse at trial. On both occasions, she was the aggressor. There was held to be some relevance to self-defence if that was to be the defence run at the trial, particularly because of the proximity in time to the incidents to the alleged murder.

6      Above no 1.

7 At [10].

8 At [95].

[36]   In contrast with the facts in Ford, as mentioned, the defence points out that Ms Balkind does not accept that she was in a domestic relationship with Mr Benjes. She says that they lived together as flatmates. The defence also submits that there was no reliable evidence that Ms Balkind was seriously intoxicated on the night of Mr McPherson’s death.

[37]   In relation to the argument put forward by the defendant that the time connection between the evidence which it is sought to have admitted as propensity evidence and the index offence was too long, I note that the Court of Appeal in the case of White v R addressed this issue. The Court said:9

There is also a sufficient connection in time. A period of four or five years is not a long gap between incidents, given the nature of domestic relationships. M’s account of the assaults on her will be probative on the issue of the complainant’s credibility and the reliability of her evidence.

[38]   Balancing up the various factors I am required to consider and making a judgment as to whether or not the probative value exceeds the prejudicial effect of the evidence in question, I am satisfied that in terms of the Crown theory and specifically in connection to the defence of self-defence, that the items of disputed propensity evidence are appropriate to be admitted.

[39]   The evidence does demonstrate what could be argued to be a pattern of events similar to what occurred on the night in question.

[40]   Therefore, I admit these disputed aspects of propensity evidence but direct that they be admitted solely for the purpose of negativing the defence of self-defence.

Churchman J

Solicitors:

Crown Solicitor’s Office, Tasman for Crown Inangahua Chambers, Blenheim for Defendant

9      White v R 2010] NZCA 6 at [10].