R v Edwards

[2019] NZHC 407

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. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-027-890

[2019] NZHC 407

THE QUEEN

v

MARK ERUITI EDWARDS

Hearing:	11 March 2019
Appearances:	R B Annandale for Crown J Moroney for Defendant
Judgment:	12 March 2019

JUDGMENT OF LANG J

[on admissibility of propensity evidence]

This judgment was delivered by me on 12 March 2019 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

R v EDWARDS [2019] NZHC 407 [12 March 2019]

[1]    Mr Edwards is to stand trial in this Court on six charges arising out of an incident that occurred in Northland on 2 March 2018. In brief, the Crown alleges that Mr Edwards kept his then partner captive for a lengthy period and assaulted her on numerous occasions during that time.

[2]    The Crown seeks an order under s 101 of the Criminal Procedure Act 2011 declaring admissible as propensity evidence eight sets of convictions entered against Mr Edwards between 2009 and 2016 for violent offending against his previous partners.

[3]    During the hearing, Mr Annandale confirmed that the Crown no longer sought to adduce evidence relating to offending that occurred on 15 January 2009. Mr Moroney, counsel for Mr Edwards, also properly conceded that propensity evidence in relation to five further incidents was admissible on orthodox propensity principles. I hold that evidence of those incidents is admissible as propensity evidence at Mr Edwards’ trial. It will be for the Crown to liaise with the defence regarding the form in which the evidence is placed before the jury.

[4]    The only issues in dispute are whether previous convictions for offending that occurred in 1995 and 2000 should be admitted at trial.

Male assaults female – 12 May 2000

[5]    The Crown has obtained a certificate of conviction in relation to this offending. The only evidence it can adduce, however, is in the form of a summary contained in Judge Harding’s remarks when he sentenced Mr Edwards on 15 June 2000.1 The Judge summarised the facts giving rise to the charge as follows:

After an argument with your former partner you punched her in the eye and then struck her several times about the head when she was unable to escape and ended up on the floor where she was kicked about the chest and head area with bare feet. She received a black eye and bruising as a result.

[6]    Mr Moroney submits that the absence of the summary of facts on which Mr Edwards based his guilty plea renders these remarks unreliable. He also submits it is

1      New Zealand Police v Edwards DC New Plymouth CRI 43007115-116, 15 June 2000 at 1.

not necessary for the Crown to adduce this evidence because it can already rely upon the five sets of convictions he accepts are admissible.

[7]    As Mr Annandale points out, however, the answer to the first of these submissions is that the Judge must be taken to have based his remarks on the summary of facts that Mr Edwards agreed to when he entered his guilty plea.

[8]    The second of Mr Moroney’s submissions is answered by the following observations made recently by the Court of Appeal in R v Rewa:2

[22] Parliament has recognised that the probative value of propensity evidence increases with the frequency with which the acts have occurred, the connection in time, the degree of similarity and the number of persons making the allegations. The strength of the propensity evidence is therefore undermined if only part of the picture is presented to the jury….

These observations plainly favour the Crown’s argument in the present case.

[9]    The issue at trial will be whether the complainant is telling the truth as to what occurred during the incident giving rise to the present charges. Two of the charges allege Mr Edwards assaulted his partner with intent to injure her and that he caused grievous bodily harm to his partner with intent to do so. The jury may consider it to be no coincidence that Mr Edwards has acted in a similar way towards one of his previous partners.

[10]   I consider the nature of the conduct in the proposed propensity evidence is sufficiently similar to several of the acts giving rise to the present charges that it provides support for the evidence of the complainant in relation to the charge of assault with intent to injure. It will be for the trial Judge to determine whether the Crown is also entitled to rely on it as propensity evidence in relation to the charge involving the infliction of grievous bodily harm.

[11]   Any unfair prejudice can be met by careful directions to the jury regarding the legitimate use to which they may put the evidence. I therefore rule the evidence to be admissible.

2      R v Rewa [2018] NZCA 574.

Male assaults female and other charges – 7 August 1995

[12]   The Crown has not yet been able to obtain a certified copy of these convictions. Correspondence received from the District Court indicates that the charging documents relating to these charges cannot be found. This is apparently necessary before the District Court will issue a certified copy of the convictions. I am not sure why this is the case given the fact that the convictions are contained within Mr Edwards’ criminal history but will leave it to the Crown to pursue the issue with the District Court.

[13]   The Crown has not been able to locate a summary of facts for this offending. However, it has obtained a copy of a formal statement made by the complainant on  1 September 1995. Much of the material contained in the statement is irrelevant for present purposes, but the complainant describes an incident that she says occurred on or around 9 August 1995 in which she says she was detained over a considerable period by Mr Edwards and subjected to considerable violence by him.

[14]   Mr Moroney contends this evidence is too historical to be of any real probative value. I do not accept this to be the case. Aspects of the evidence are so similar to the allegations contained in some of the present charges that it provides strong support for the evidence given by the complainant notwithstanding the passage of time since it occurred.

[15]   Such evidence would clearly be admissible on propensity grounds in relation to the present charges of assault with intent to injure and abduction because again the jury may consider it to be no coincidence that Mr Cooper acted in a similar way towards an earlier partner. Whether it can amount to propensity evidence in relation to other charges will be for the trial Judge to determine. Any unfair prejudice can again be met through appropriate judicial directions.

[16]   It is obviously open to the Crown to call this complainant to give evidence at Mr Cooper’s trial but Mr Annandale is doubtful that she can now be located. In the absence of a certified copy of the convictions or summary of facts I am not prepared to rule the evidence admissible at this stage but the Crown has leave to renew its application should it be able to rectify these deficiencies or locate the complainant.

Lang J

Solicitors:

Crown Solicitor, Whangarei Counsel:

J Moroney, Thode Utting, Albany