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…

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 Balkind

Details

AGLC: R v Balkind [2019] NZHC 257
Case: [2019] NZHC 257
Decision Date: 26 February 2019

CaseChat Overview and Summary

The case of R v Balkind involved the Crown's intention to present propensity evidence against the defendant, Ann Shirley Balkind, who was charged with the murder of her former partner, Mr McPherson. The Crown's application to introduce propensity evidence was objected to by the defence, necessitating a pre-trial ruling on its admissibility under section 101 of the Criminal Procedure Act 2011. The propensity evidence in question included statements from Ethan McPherson and Graham Ian Morris, along with supporting testimony from Chris Benjes, detailing previous incidents of domestic violence and threats involving knives. The Crown argued that this evidence was necessary to counter the defence of self-defence and to establish a pattern of behaviour.

The legal issues centred around whether the propensity evidence met the criteria for admissibility under the Evidence Act 2006, specifically section 43, which mandates that the probative value of such evidence must outweigh its prejudicial effect. The defence contended that the evidence was not truly propensity evidence but rather evidence of past abusive relationships, that it was unfairly prejudicial, and that it could lead the jury to improperly generalise the defendant's behaviour. Additionally, the defence argued that the evidence was too old to hold evidential value and that it lacked the necessary similarity to the current charges.

The court considered the factors outlined in section 43 of the Evidence Act, including the frequency, similarity, and connection in time of the past incidents to the current charges. The court found that the evidence demonstrated a pattern of behaviour involving alcohol, domestic arguments, and the use of weapons, which was sufficiently similar to the current allegations to have probative value. The court also noted that the prejudicial effect of the evidence was not so significant as to exclude its admissibility, particularly as it was to be admitted solely for the purpose of counter-arguing the self-defence claim. The court ruled that the disputed propensity evidence was admissible, albeit with specific directions as to its limited use.

In conclusion, the court admitted the contested propensity evidence, subject to the condition that it could only be used to counter the defence of self-defence. This decision allowed the jury to consider the pattern of the defendant's past behaviour in the context of the current charges while ensuring that the evidence did not unfairly prejudice the defendant.

Orders