R v Crozier

[2016] NZHC 2661

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL [RETRIAL].

PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2016-018-4

[2016] NZHC 2661

REGINA

v

DENIS BERNARD CROZIER

Hearing:	7 November 2016
Appearances:	M Zarifeh for Crown M Zintl for Defendant
Judgment:	8 November 2016

JUDGMENT OF MANDER J

[1]    The defendant, Mr Denis Crozier faces a charge of causing grievous bodily harm with intent to cause grievous bodily harm arising from an incident said to have occurred on New Year’s Eve last year.

[2]    The Crown has made application pursuant to s 101 of the Criminal Procedure Act 2011 for orders that the evidence of Ms Tina Shrives and Detectives Daniel Shields and John Nicholls relating to the production of a record of Ms Shrives’ text messages is admissible at trial. That application was made as a preliminary step to the Crown’s related application for Mr Crozier’s trial to be adjourned.

R v CROZIER [2016] NZHC 2661 [8 November 2016]

Background

[3]    Mr Crozier’s trial is scheduled to commence on 5 December 2016. His original trial, which started on 15 August 2016, was abandoned on the second day after a Crown witness made reference to Mr Crozier’s previous convictions for violence.1 The 5 December trial date was confirmed at a call-over on 15 September.2

The Crown applies to adjourn the trial

[4]    On 27 October the Crown filed a memorandum applying for the trial to be adjourned until a date in the new year. The Crown seeks to call Ms Shrives as an eyewitness to the alleged attack by Mr Crozier using a baton to strike the complainant’s head.

[5]    The difficulty for the Crown is that Ms Shrives is alleged to have sworn a false affidavit on 14 January 2016, in which she deposed to being present at the incident but denied seeing Mr Crozier hit the complainant over the head with a baton. Ms Shrives in her affidavit described Mr Crozier as only pushing the complainant and that he fell over. Based on the allegation she swore a false affidavit, Ms Shrives is charged with attempting to pervert the course of justice.

[6]    Ms Shrives’ Judge alone trial is set to commence in the Greymouth District Court on 2 February 2017. The objective of the Crown’s application for an adjournment is for Mr Crozier’s trial to be delayed until the criminal proceeding against Ms Shrives have been completed, thereby avoiding the difficulty of Ms Shrives declining to answer questions on the grounds she may incriminate herself. Mr Crozier opposes the adjournment of his trial.

The new evidence

[7]    On 1 November, I convened a telephone conference with counsel. The nature of the evidence the Crown seeks to introduce was discussed. It is this material which is the subject of the s 101 application. Central to that evidence is a text message which

1      R v Crozier HC Greymouth CRI-2016-018-4, 16 August 2016.

2      R v Crozier HC Greymouth CRI-2016-018-4, 15 September 2016.

it is alleged Ms Shrives sent to an associate late on the afternoon of 1 January 2016. In that text she refers to the incident the subject of the charge and of seeing Mr Crozier strike the complainant with a baton. This account differs from the content of her affidavit.

[8]    On 2 January 2016, the police spoke to Ms Shrives as part of their area inquiries into the alleged attack on New Year’s Eve. She is a neighbour of Mr Crozier. Her response to the police at that time was that she had been at a local hotel all night and that, while she knew Mr Crozier and his partner, she did not go to his house on the night in question.

[9]    Later that same day, Ms Shrives phoned the police and again spoke to the detective to whom she had provided her earlier account. She apologised for misleading the police and advised she had been at the address, but that she would say nothing more until she had spoken to a lawyer. Ms Shrives subsequently sought to avoid the police. When finally approached at her place of employment, she made it clear she did not wish to speak to the police. Later that month, Ms Shrives made the affidavit which is the subject of her prosecution.

[10]   As part of the police enquiry a production order was obtained for Ms Shrives cellular phone. The text messages, including the text in which Ms Shrives refers to Mr Crozier using the baton, were discovered.

The Crown’s argument on the adjournment of the trial

[11]   Ms Shrives, through her lawyer, has communicated to the Crown that she will not cooperate with the prosecution.   Initially the Crown decided that because of    Ms Shrives’ association with Mr Crozier, and her conflicting statements and lack of cooperation, it would not call her as a witness. After reappraising its case, the Crown has now reviewed that position. The Crown is concerned that an apparent defence being advanced by Mr Crozier is that one or both of the Crown’s eyewitnesses, Ms Clarke and Mr Van Groen, who are associates of the complainant and left the scene with him, may have assaulted him at some later stage. There is also the potential for conflicting expert evidence regarding when the injury may have been inflicted.

[12]   The Crown submitted that, pursuant to s 73 of the Evidence Act 2006 (the Act), Ms Shrives is a compellable witness. She will, however, be able to claim privilege against self-incrimination should she be called at the December trial pursuant to s 60 of the Act insofar as there is any question directed to her about what she witnessed.

[13]   The Crown submitted it is important the jury has the benefit of Ms Shrives’ evidence but that it will be denied that opportunity if she is able to claim privilege because of her present jeopardy in relation to the charge of attempting to pervert the course of justice. Accordingly, the Crown submitted that while delaying Mr Crozier’s trial is unfortunate, it is important that Ms Shrives’ criminal proceeding be determined first in order that the evidence is available.

[14]   In support of its submission that the trial be adjourned, the Crown observed the charge faced by Mr Crozier is a very serious one and that it is in the interests of justice that a verdict is reached with the benefit of all available admissible evidence. The Crown further submitted the postponed trial would not represent a significant delay, having regard to the period between the date of the charge and the trial. The matter has made reasonably prompt progress through the system and Mr Crozier’s conditions of bail are not onerous.

Mr Crozier’s response

[15]   Mr Crozier opposed the December trial being adjourned. He stressed that the trial had been confirmed at a pre-trial call-over in September and that the Crown’s change in position has come with only some five weeks to trial. As a result of professional commitments his counsel, Mr Zintl, would not be able to conduct the trial until April or May 2017. It was submitted the Crown has been alive to this issue since 14 January 2016 when it became aware of Ms Shrives’ position as formalised in her affidavit. Mr Crozier submitted the Crown’s predicament is of its own making with a decision having been made to prosecute Ms Shrives in June, thereby allowing her to claim privilege against self-incrimination.

[16]   Mr Crozier submitted the evidence is not crucial to the Crown’s case and there is other evidence available to it to prove the charge which it has relied upon up until this point. He stressed the defence would be inconvenienced having summonsed some

six defence witnesses, including an expert witness, to be available in the week of 5 December.

The admissibility issue

[17]   At the telephone conference on 1 November, Mr Crozier considered Ms Shrives’ evidence to be potentially inadmissible. It was submitted at that time that Ms Shrives has provided a number of accounts to the police, and that she presents as a known hostile and unreliable witness who the Crown should not be permitted to call.

[18]   Essentially, the Crown seeks to rely upon the content of the text message sent by Ms Shrives less than 24 hours after the incident. Ms Shrives is a compellable witness and the text message would be able to be introduced if she did not give oral evidence consistent with it. So long as she is called as a witness, the introduction of the text message would not constitute hearsay.3 Given the likelihood that with her pending February trial Ms Shrives would claim privilege against self-incrimination in response to questioning, the text message remains available to be introduced as evidence in its own right.

[19]   The defence, five weeks out from trial, cannot claim itself embarrassed by the notice it received of the Crown’s intention to call Ms Shrives and to introduce the text message through the police officer who obtained the text records. Subject to the Court’s overarching power to exclude evidence if its probative value is outweighed by the risk it will have an unfairly prejudicial effect on the proceeding, the Crown does not strictly need to have the December trial adjourned in order to secure the admission of the text evidence.4

[20]   Because the admissibility of the evidence at the root of the Crown’s application for an adjournment was in contest, the Crown was directed to file a s 101 application. However, Mr Crozier has now modified his stance regarding the admissibility of Ms Shrives’ evidence. He has abandoned his objection based upon the Crown calling a

3      Evidence Act 2006, ss 4 and 17.

4      Section 8(1).

witness known to be hostile for the purpose of introducing an otherwise inadmissible text message.

[21]   However, Mr Crozier’s overall concern regarding Ms Shrives’ evidence having an unfair prejudicial effect on the proceeding remains. This appears to be focussed on the unpredictability of how she will respond to questions in cross-examination. Mr Crozier submitted the December date could be retained on the basis that prior to Ms Shrives being called as a witness a voir dire is conducted to assess how she will respond to questions about what she observed on the night of the alleged attack and the content of the text message. In summary, the defence position was that it no longer opposed the Crown calling Ms Shrives as a witness, but requested that before she be permitted to give evidence an assessment be undertaken as to her reliability and whether her evidence would have an unfair prejudicial effect on the proceeding.    Mr Crozier remains opposed to an adjournment of the trial.

Decision

[22]   I have concluded the interests of justice favour granting the Crown an adjournment of the trial. I have carefully considered the matters raised by Mr Crozier in opposition to his trial being delayed. I do not underestimate the difficulty and stress the postponement of his trial into the new year will cause, however, because of the seriousness of the charge and the nature of the issues likely to be at stake at trial, I consider an overriding consideration is that the jury be provided with the opportunity to assess all relevant evidence. In particular, and notwithstanding Ms Shrives’ conflicting accounts, the jury should not be denied the opportunity to consider the evidence of an eyewitness able to give direct evidence about the central issue it must decide.

[23]   The reliability of Ms Shrives as a witness is clearly in issue. The Crown can point to, and will no doubt rely upon, the statements she made in her text message shortly after the event the subject of the charge. The defence can emphasise the varied and conflicting accounts Ms Shrives has given, and it remains to be seen what      Ms Shrives will say about the text message. However, the difficulty for both parties

is that if the trial proceeds in December, Ms Shrives is entitled to claim privilege against self-incrimination.

[24]   As already observed, the Crown does not strictly need Ms Shrives’ oral account and can rely on the content of the text message. When put to her for her comment, it is unlikely Ms Shrives will incriminate herself by confirming its content. Importantly, however, Ms Shrives, with her pending criminal trial, is likely to feel equally constrained in being able to answer questions in response to defence cross- examination. This is likely to focus on her other accounts, either to demonstrate her unreliability, or that the version contained in the text message is not correct. It would be unsatisfactory for the trial to proceed while an eyewitness is likely to be so inhibited.

[25]   I acknowledge the Crown has had  available  the  evidence  sourced  from  Ms Shrives for some time, and has only now chosen to commit itself to adducing that evidence at trial, thereby necessitating the adjournment of the December trial. In mitigation of its late decision to introduce this evidence, the Crown points to the nature of Mr Crozier’s defence which has only become apparent to it as a result of the abandoned August trial. Mr Crozier exercised his right not to make a statement when he was interviewed by the police so there was little indication of the prospective defence to the charge. Ms Shrives’ inconsistent accounts and her apparent hostility initially counted against her being included as part of the Crown’s case, but it now seeks to revise that position.

[26]   Mr Crozier points to the fact the Crown confirmed the December trial date at a call-over in September when the recent developments said to have initiated its change of approach would already have been known. The Crown acknowledges its belated decision but submitted that it does not alter the merits of making Ms Shrives available as a witness at Mr Crozier’s trial.

[27]   The concern of the Court is that the jury be provided with the opportunity to hear all relevant evidence that bears upon whether it can be sure Mr Crozier committed the alleged act. The evidence the Crown seeks to introduce is potentially of some considerable probative value, taking as it does the form of a record sourced from Ms

Shrives and made by her before she was approached by the police, and, it would appear, before she was aware of what had happened to the complainant. However, that evidence cannot be allowed to be introduced in a vacuum. In order to allow the jury to make a proper assessment of the evidence sourced from Ms Shrives she needs to be able to be fully questioned. After examination of Ms Shrives’ conflicting accounts, she may be considered by the jury to be an unreliable witness upon whose evidence little, if any, reliance can be placed, including the content of her text message. Ms Shrives herself should be afforded an unencumbered opportunity to comment on the text message, and to be questioned by the parties, in particular by the defence.

[28]   I do not consider the approach proposed by Mr Crozier of retaining the December trial date and making Ms Shrives evidence the subject of a voir dire to assess whether she will be cooperative and respond to questioning will advance the position. Leaving to one side what Ms Shrives’ ultimate evidence about what she saw may be, it is not disputed she was present and is an eyewitness to whatever happened. As matters presently stand, it cannot be realistically envisaged that Ms Shrives will waive her right not to incriminate herself. So long as the parties are afforded full opportunity to question Ms Shrives, any unfair prejudicial effect from the introduction of the text message on the proceeding will be avoided. However, that can only be achieved by adjourning the trial. Conducting a voir dire in the course of the December trial does not alleviate the difficulty of Ms Shrives declining, as she is entitled, to answer questions and claiming privilege. In that event there is a real risk the proceeding will become unfair.

[29]   Without opposition, I make an order that the evidence of Detective Shields relating to his execution of a production order and the securing of Ms Shrives’ text message data is admissible. A necessary precondition to the admissibility of the text message, however, is that Ms Shrives be called as a witness. The evidence of Detective Nichols, insofar as it relates to the identification of Ms Shrives’ cellular phone number, is also admissible. It is not possible to make any order as it relates to the evidence of Ms Shrives herself because no statement was obtained from her by the police, and the content and ambit of her evidence is presently unknown.

[30]   Because the Crown’s evidence as it relates to Ms Shrives’ text message data is admissible at trial, I consider it necessary to vacate the December trial date in order to secure Mr Crozier a fair trial. It is essential that Ms Shrives is in a position to comment on the content of her text message and that Mr Crozier be able to fully question the witness. He is unlikely presently to be able to do this while Ms Shrives’ trial remains pending. While I acknowledge the hardship to Mr Crozier and his family in delaying his trial into the new year, I consider the interests of justice are best served by allowing that course.

[31]The matter will be the subject of a further call on Tuesday 29 November at

9.00 am in anticipation that a substitute date can be confirmed at that time.

Solicitors:

Raymond Donnelly & Co, Christchurch Hannan & Seddon, Greymouth