R v Ferris-Bromley

[2015] NZHC 3210

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-054-794 [2015] NZHC 3210

THE QUEEN

v

JESSE FERRIS-BROMLEY

Hearing:	11 December 2015
Counsel:	B D Vanderkolk for Crown R B Crowley for Defendant
Judgment:	17 December 2015

JUDGMENT OF CLIFFORD J

[1]      Mr  Jesse  Ferris-Bromley  is  charged  with  the  murder  of  his  partner, Ms Virginia Ford.  The Crown frames that charge of murder on the basis that whilst Mr Ferris-Bromley did not intend to kill Ms Ford, he meant to cause her a bodily injury that was known to him to be likely to cause death, and was reckless whether death ensued or not (Crimes Act 1961, s 167(b)).   Mr Ferris-Bromley accepts he caused Ms Ford’s death by the unlawful act of assault.   It was Mr Ferris-Bromley who called the ambulance on the evening Ms Ford died.   Mr Ferris-Bromley is,

therefore, prepared to plead guilty to manslaughter.

R v JESSE FERRIS-BROMLEY [2015] NZHC 3210 [17 December 2015]

[2]      He is, however, not prepared to plead guilty to murder.  He would defend that charge on the basis of putting the Crown to the proof that he acted with the necessary intent.  He would deny he acted with the knowledge and recklessness required by s 167(b).

[3]      This is an application by the Crown to admit, as propensity evidence:

(a)       evidence of injuries suffered by Ms Ford, which did not contribute in any material way to her death, in the preceding days and weeks; and

(b)evidence tending to prove that Mr Ferris-Bromley was responsible for those injuries, (together, the evidence).

[4]      As to the nature and significance of those injuries, the evidence would come from the pathologist. As to tending to prove Mr Ferris-Bromley was responsible, the evidence would comprise notes Ms Ford had recorded on her mobile phone.

Submissions

[5]      For the Crown, Mr Vanderkolk relied on certain aspects of the majority and minority decisions in Mahomed.1     In Mahomed, the (child) victim of the alleged murder had also suffered injuries in the weeks before her death.  In addition, on one occasion some eight days before her death the victim’s father had acted in a way which tended to show a disregard for her wellbeing (the van incident).  The Supreme Court analysed the probative value and admissibility of that evidence of previous

abuse.  At [8] the majority accepted that aspects of that evidence was probative of a state of mind which demonstrated indifference, perhaps recklessness, as regards the child’s welfare.  At [73] and [74] the minority considered that the evidence of the prior abuse, and in particular what was known in the appeal as the van incident, was of considerable probative value as regards the charges the parents faced.   The evidence of the earlier abuse, in particular, showed that the parents tended to act and think in a particular way towards or about the victim.   It was, the minority said,

“inappropriately atomistic” to focus on various  events individually.   Rather, the

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

evidence of the previous abuse was of a very distinctive pattern of events which, as a whole, was highly relevant to the case.

[6]      Mr Vanderkolk argued that, by analogy, so was the evidence here: that is, it was evidence of a pattern of behaviour that showed a propensity to inflict violence upon Ms Ford, and to do so with reckless disregard.

[7]       For  Mr  Ferris-Bromley,  Mr  Crowley  argued  that  the  evidence  had  no material probative value and, in addition, to the extent that it might have, its effect would be more unfairly prejudicial than probative.

Analysis

[8]      The remarks of both the majority and the minority in Mohamed need to be put into context, and in particular into the context of the charges the defendants faced in that case and the issues at trial.

[9]      The victim’s father faced a charge of murder, two charges of causing grievous bodily harm with intent to do so and one charge of failing to prove the necessaries of life. The mother was charged jointly with the father for failing to provide the necessaries of life: that charge related to the period of time after the infliction of the fatal injuries and before the child was taken to hospital.  The parents also faced a severed trial before a judge alone for failing to provide the necessaries in the period leading up to the victim’s death, as evidenced by her malnourished state when finally admitted to hospital, and the van incident.

[10]     Notwithstanding the severance decision, which the Crown could not appeal, evidence of the victim’s malnourished state and, following an appeal, of the van incident, was ruled to be admissible at the parents’ trial.

[11]     Mr and Mrs Mohamed denied all aspects of the charges.  So the issue was not simply one of intent: the Crown needed to establish that Mr Mohamed had been responsible for the injuries the victim suffered, including those that caused her death. Likewise, the facts of the alleged “failure to provide” in the hours after the victim’s

injuries were sustained was also at issue.  The situation was complicated further by the defence tactics: as described by the minority in Mahomed:

[42]      A primary plank in the defence advanced on behalf of Mr Mahomed was  that  the  person  who  inflicted  the  injuries  was,  or  may  have  been, Mrs Mahomed. As is apparent, Mrs Mahomed did not face a murder charge. But if she had inflicted the fatal injuries, her delay in taking Tahani to hospital might be thought necessarily to have involved a criminal failure to supply the necessaries of life. Despite this, there was no attempt on her part at trial to push back against the contention that she had inflicted all the injuries  to  Tahani.  Instead,  there  was  a  joint  and  coordinated  defence strategy.

[12]     Against that background, it can be seen that the issues in Mohamed were very different to those that will arise at Mr Ferris-Bromley’s trial on the murder charge. The only issue there will be one of intent in terms of s 167(1)(b).   Neither the majority nor the minority in Mohamed suggested that the evidence of earlier abuse went to intent. At [12] the majority acknowledged that the disputed evidence, that of the van incident, was not probative either of the identity as between the parents of the person who inflicted the fatal injuries, nor of the state of mind necessary to make that person a murderer “whether on account of an intent to kill or an intent to cause bodily injury with the necessary degree of recklessness as to death ensuing”.  The minority, in their analysis of the relevance of the evidence of prior abuse, noted that the Crown case as to the non-accidental nature of the injuries and mens rea was predominantly based on the nature of the injuries and the degree of force which was required to inflict them.

[13]     In  my  view,  the  evidence  is  not  probative,  as  propensity  evidence,  of Mr Ferris-Bromley assaulting Ms Ford with knowledge that his actions were likely to cause her death.  If anything, the previous patterns of assault, if the jury accepted he  was  responsible  for  them,  could  be  said  to  be  probative  of  the  opposite conclusion: that is, because he had inflicted serious violence on Ms Ford in the past, which had not caused her death, it was less likely he knew that his violence on this occasion was likely to do so.

[14]     At   the   hearing   of   this   application,   and   I   acknowledge   with   some encouragement from me, Mr Vanderkolk developed an argument that even if the evidence  was  not  probative  as  to  the  first  limb  of  s  167(1)(b)  (knowledge),  it

nevertheless was probative as regards the second element, namely recklessness.  On reflection, I do not think that argument can be accepted.

[15]     The authors of Adams explain as follows as regards reckless killing:2

CA167.06 Paragraph (b) – reckless killing

Under this paragraph the defendant need not have had the object of killing anyone; it suffices that the offender’s object was to cause bodily injury to the person killed, knowing it to be likely to cause death, and being reckless. “Reckless” in para (b) means a conscious taking of the risk of causing death; and it does not suffice that the defendant failed to give thought to a serious risk of this, or would have foreseen it if he or she had paused to think about it.  The requirement of recklessness indicates that the defendant was willing to risk causing death, and serves to point the contrast with para (a), but usually it adds nothing of significance to the preceding words. These require that the defendant had an actual or conscious appreciation that death was a likely consequence of the act, a state of mind that must exist at the time of an act which either caused death, or was an operating and substantial cause of death: R v Harney [1987] 2 NZLR 576 (CA); R v Fryer [1981] 1 NZLR 748 (CA); R v Nathan [1981] 2 NZLR 473; R v McKinnon [1980] 2 NZLR 31 (CA); R v Dixon [1979] 1 NZLR 641 (CA); R v Aramakutu [1991] 3 NZLR

429, (1991) 7 CRNZ 114 (CA), at 432, 117; R v Bristow CA490/99, 2 March

2000; R v Lee [2006] 3 NZLR 42, (2006) 22 CRNZ 568 (CA). See also R v

Lawford (1993) 61 SASR 542 (SC). In R v Meads CA514/99, 20 April 2000 the Court concluded that “reckless” in s 167(b) simply means “that there must be a conscious taking of the risk of causing death”, and it was unwise for the Judge to also say that it meant “careless”, which obscured the need for conscious awareness of the risk.

In R v Cooper (1993) 18 CR (4th) 1 SCC), the aspect of recklessness in a provision identical to s 167(b) has been considered to be an afterthought, since to secure a conviction under the section it must be established that the defendant had the intent to cause such grievous bodily harm and knew it was likely to cause death.  It was stated at 7:

“One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur.”

See also Harney (above) which considers Court of Appeal decisions where it had been suggested that the reference to recklessness in s 167(b) added nothing of significance to the preceding requirement of knowledge.

[16]     In light of that very clear authority, an assertion of separate probative value as regards recklessness cannot be sustained.  There is no real distinct proof required.

Once  the  jury  finds  that  a  defendant  acted  with  the  necessary  knowledge,  and

2      Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA167.06].

continued, recklessness is to be inferred.  The evidence is not, therefore, probative in any relevant way and could only have unfair prejudicial value.

[17]     The Crown’s application to admit the evidence is declined.

“Clifford J”

Solicitors:

Ben Vanderkolk and Associates, Palmerston North for Crown

R B Crowley, Wanganui for Defendant