R v Crozier

[2017] NZHC 1289

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2016-018-000004 [2017] NZHC 1289

THE QUEEN

v

DENIS BERNARD CROZIER

Hearing:	12 June 2017
Appearances:	B Hawes for the Crown M Zintl and M Taylor-Cyphers for the Defendant
Date ofRuling:	13 June 2017

RULING 2 OF NATION J

[1]      A witness, Mr Van Groen, is being cross-examined by Mr Zintl, counsel for the defendant.   Mr Zintl indicated just prior to the morning adjournment that he wished to cross-examination Mr Van Groen about previous convictions relating to dishonesty.   He also wishes to cross-examination Mr Van Groen about previous convictions for assault and possessing an offensive weapon.   I will deal with the application and the issue in relation to previous convictions for dishonesty first.

[2]      The issue arises in the context of this trial against Mr Crozier.  The allegation made by the Crown and Crown witnesses is that Mr Thompson, in the company of two friends, a Ms Clark and Mr Van Groen, went to Mr Crozier’s property on New Year’s Eve at the end of 2015.  During the evening they were drinking just outside his home.   There is evidence from these witnesses that, during the course of the evening,  Mr  Crozier  indicated  that  he  would  like  them  to  leave.    Against  that

background, the evidence from these two witnesses is that, essentially, out of the

R v CROZIER [2017] NZHC 1289 [13 June 2017]

blue, Mr Crozier came out from inside the house, swung a baton and hit Mr Thompson  very  hard  on  the  back  of  his  head.    There  is  evidence  from  these witnesses that Mr Thompson was not immediately rendered unconscious, that he left the property with these two people, was in a taxi, returned to Ms Clark’s home later that night and was in bed at Ms Clark’s home during the night but, on the following day,  Ms  Clark  and  Mr Van  Groen  observed  that  he was  seriously  unwell.   An ambulance was called later on New Year’s Day.  Mr Thompson ended up being taken to Grey Hospital and then later that day was flown to Christchurch Hospital.  There is medical evidence that he suffered severe and permanent head injuries.

[3]      Mr Van Groen’s evidence is that he saw Mr Crozier with the bat and saw him swing the bat at Mr Thompson.  His evidence as to this has been challenged.  It has been suggested that Mr Crozier may simply have pushed Mr Thompson and that perhaps he then hit his head against a post that was somewhere near where he had been.  It has also been suggested in cross-examination that someone else might have caused the injury.  All of that means that Mr Van Groen’s evidence or veracity as a witness as to what happened has been challenged.

[4]      Section 37 of the Evidence Act says that a party may not offer evidence in a criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.

[5]      Section  37(3)  says  a  Judge  may consider  one  or  more  of  the  following matters but they are not exclusive.  The examples that are given in that subsection largely relate to a person’s dishonesty in making statements in a situation where they were under a legal obligation to tell the truth for instance.   That is referred to specifically in 37(3)(a).  Section 37(3)(b) refers to a person being convicted of one or more offences that indicate a propensity for a lack of veracity.   Section 37(3)(c) refers to the previous inconsistent statements made by the person.  Then, ss (3)(d) bias or (e) a motive on the part of the person to be untruthful.

[6]      The convictions which  Mr Zintl wishes to cross-examine Mr Van Groen about include convictions for being unlawfully in a building in 2014 and convictions going back to 1991 and 1993 for burglary.  They are very different situations than

perhaps appear to be contemplated by the examples that are given in ss 37(3)(a)-(e)

which relate to a person’s dishonesty largely in making statements.

[7]      The circumstances that Mr Van Groen is giving evidence about are very different from the situations where he has a conviction for dishonest offending. However, I have read the comments of the Court of Appeal in T v R.1   There, cross- examination was permitted and upheld by the Court of Appeal in relation to the prosecution being allowed to cross-examine a defence witness, although I note that, in upholding the decision which had been made by the trial Judge, the Court of Appeal did have regard to the particular ways in which that defence witness was giving evidence, which was actually inconsistent with admissions that had been

made by the appellant.  There was no detail in the Court of Appeal judgment as to just what the previous convictions were for, although there is some reference to the convictions being for theft or conversion of another’s property and it being accepted by counsel for the appellant that these were relevant to veracity.

[8]      In another case, Chown v R, the defence had not been permitted to cross- examine a defence witness.2   That witness was giving evidence about events that had occurred  where  there  was  an  allegation  against  the  defendant  in  relation  to  a stabbing.  The Court of Appeal noted that s 37 provides that a party may not offer evidence about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity and noted what they had previously said in R v

Alletson that the requirement that the evidence be substantially helpful calls for more than relevance as decided in s 7(3).3   The Court of Appeal said that they considered the evidence of the witness’s dishonesty offending would have been substantially helpful in assessing his veracity but noted that, if evidence about a person’s veracity is inconsequential to the determination of a proceeding, it will not be admissible under s 7.

[9]      In this case, the veracity of Mr Van Groen is at issue in the proceeding.  In

Chown, the Court of Appeal said that they considered the issue to have been finely

1      T v R [2011] NZCA 89.

2      Chown v R [2011] NZCA 453.

3      R v Alletson [2009] NZCA 205.

balanced but that they would have been minded to grant the appellant’s application

to cross-examine this witness on his dishonesty offending.

[10]     I consider that the issue here is also finely balanced but,  given Mr Van Groen’s veracity is in issue, I will give leave to the defence to cross-examine him about those previous convictions for being unlawfully in a building and for burglary. Leave to cross-examine about previous convictions as to dishonesty also extends to the convictions for unlawfully interfering with  a motor vehicle and obtaining a cheque by false pretences.

[11]     The other issue relates to convictions for possessing an offensive weapon and assaulting a Police Officer in 2008.  Mr Zintl submits they are relevant and they go to the propensity of potentially Mr Van Groen to be responsible for the assault.  At this stage, there is no evidential basis to suggest that Mr Van Groen was the person who actually assaulted Mr Thompson in some way.  I regard that basis for suggesting that the evidence is relevant as being entirely speculative.  It is evidence which, if before the jury, would be simply of a character-blackening exercise as far as this witness is concerned.  I do not consider that it has any particular relevance to matters that are at issue but, importantly, I need to consider the provisions of s 44 in relation to propensity evidence.  That subsection states that evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in s 37 and, accordingly, this section does not apply to evidence of that kind.

[12]     I do not consider that the convictions for assault or possession of an offensive weapon would be substantially helpful as far as veracity is concerned and I do not consider that they would be of any real probative value in terms of propensity if that was an issue as far as Mr Van Groen was concerned.  The conviction for possession of an offensive weapon was in 2008.  The sentence imposed was community work. There is nothing on the basis of simply that conviction to suggest it would be of any probative value in suggesting that Mr Van Groen would be more likely to commit the sort of offence that is being alleged against Mr Crozier.  The charge of assaulting a Police Office was in 1990 so it is certainly so long before this offending is alleged. There  was  a  charge  at  the  same  time  that  was  associated  with  convictions  for resisting  arrest  and  obstructing/hindering  Police.    The  convictions  related  to  an

altercation which Mr Van Groen had with the Police and is a completely different sort of situation than what is alleged here where, if these convictions were to have any relevance, it would be on the basis that Mr Van Groen had, in the absence of any real evidence of a dispute or conflict between him and Mr Thompson, taken it upon himself to attack in a very serious way Mr Thompson with a bat.

[13]     For those reasons, I do not permit cross-examination as to those convictions.

Solicitors:

Raymond Donnelly & Co., Christchurch

M Zintl, Barrister, Greymouth.