R v Ferris-Bromley - [2015] NZHC 3210

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 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…

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 Ferris-Bromley

Details

AGLC: R v Ferris-Bromley [2015] NZHC 3210
Case: [2015] NZHC 3210
Decision Date: 17 December 2015

CaseChat Overview and Summary

Jesse Ferris-Bromley is charged with the murder of his partner, Virginia Ford. The Crown contends that Ferris-Bromley caused Ford's death with the requisite intent under s 167(b) of the Crimes Act 1961, even though he did not intend to kill her. Ferris-Bromley is prepared to plead guilty to manslaughter, but disputes the murder charge, seeking to prove that he did not act with the necessary intent. The Crown seeks to introduce evidence of prior injuries Ford suffered at Ferris-Bromley's hands, as well as evidence that Ferris-Bromley was responsible for those injuries. Ferris-Bromley opposes the introduction of this evidence.

The legal issue before the court was whether the evidence of prior injuries and Ferris-Bromley's responsibility for them was admissible as propensity evidence. Clifford J examined the decision of Mahomed v R [2011] NZSC 52, where both the majority and minority considered the admissibility of evidence of prior abuse in a murder trial. Clifford J distinguished Mahomed on the basis that the issues in Ferris-Bromley's trial were different. Clifford J held that the prior injuries could not prove that Ferris-Bromley had the requisite knowledge under s 167(b). Clifford J further held that the evidence had no probative value as to recklessness, as recklessness is inferred once the jury finds the requisite knowledge. The evidence could only have unfair prejudicial value.

Clifford J declined the Crown's application to admit the evidence of prior injuries. Ferris-Bromley is permitted to defend the murder charge on the basis that he did not act with the requisite knowledge.

Orders