R v G HC Auckland Cri-2009-044-268

[2009] NZHC 2615

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-000268

QUEEN

v

G

Hearing:         12, 13, 14, 15, 16 October 2009

Counsel:         K Glubb and P Williams for Crown

G Newell and C Williams for the offender

Judgment:      16 October 2009

JUDGMENT OF ASHER J

Solicitors:

Meredith Connell, Crown Solicitor, PO Box 2213, Auckland

G Newell, Barrister, Auckland

R V G HC AK CRI-2009-044-000268  16 October 2009

[1]      G   is on trial for the murder of Gene Atkins.  In the fifth day of trial after the conclusion of the Crown case, the opening of the defence case and the giving of evidence by Mr G  , objection is taken by the Crown to certain further evidence that the defence proposes to call on Mr G  ’s behalf.

[2]      Mr G  ’s central defence is self-defence.  It has been accepted throughout by the defence that Mr G   shot Mr Atkins with a 44-calibre rifle following an incident at the G   family home.

[3]      Mr G   and Mr Atkins had been long-term friends.  On 12 January 2009 they had been socialising at Mr G  ’s home where he lived with his partner and their two young children.  Mr Atkins had been present with his partner, Sarah Dean. A situation developed between Mr Atkins and Ms Dean, which resulted in them both leaving the G   home and then Ms Dean returning alone following an argument. Mr Atkins had been violent towards her, and she sought to stay at the G   home.

[4]      Five minutes later when she was on the deck with Mr G   and others Mr Atkins arrived.  He appeared to be very angry and in pursuit of Ms Dean, who ran  off  to  hide.    Mr G    and  another  male  present,  a  Mr Swain,  sought  to intercede.   Mr Atkins attacked Mr Swain and rendered him partially unconscious. He then proceeded through the house in a great rage, going into the children’s bedrooms, and assaulting Mr G  ’s partner on the stairs.  He then went down the stairs and as he approached Mr G  , Mr G   shot him twice.  The second shot was fatal.

[5]      It is the defence case that Mr Atkins, when he arrived, was in a jealous rage. The defence says that had a history of such rages and that when they occurred he became extraordinarily strong and uncontrollable, and would perpetrate very severe violence.  The defence says that Mr G  , as a good friend of Mr Atkins, knew much of his violent history and propensity.  Mr G   in his evidence has stated that he believed that he and his family were in severe danger of great violence, including being killed.  He asserts that in the circumstances he used reasonable force in self-defence.

[6]      Mr Newell for Mr G   wishes to call a number of witnesses who will give evidence about violent events involving Mr Atkins.  The purpose will be two-fold. First, to show the circumstances concerning Mr Atkins as Mr G   believed them to  be.    The  second  is  to  support  the  defence  contention  that  Mr Atkins  was extraordinarily  violent  that  night.     The  relevance,  therefore,  relates,  first,  to Mr G  ’s state of mind in terms of his knowledge of Mr Atkins’ violence; and, secondly, Mr Atkins’ propensity for violence.  The Crown has accepted throughout that  Mr G    is  able  to  give  evidence  about  what  he  believed  concerning Mr Atkins’ violent past.

[7]      The contest that has now arisen relates to two particular incidents prior to Mr Atkins’ death on 12 January 2009.  The first incident occurred at a nightclub in Auckland  known  as  the  Code  Bar.    Mr Atkins  had  been  in  that  nightclub  in April 2008 with his girlfriend and partner, Ms Dean.  Ms Dean was dancing close to a  man  called  Nze Townsend.    It  is  the  defence  case  that  Mr Atkins  grabbed Mr Townsend in a headlock because he was jealous of what Mr Townsend was doing in relation to Ms Dean, and that Mr Atkins smashed a drinking glass into Mr Townsend’s face, blinding him in one eye.  As a result of the incident Mr Atkins was charged with wounding Mr Townsend with intent to cause him grievous bodily harm. The charge had not come up for trial at the time of Mr Atkins’ death.

[8]      The second incident was an occasion of alleged road rage perpetrated on

22 December 2008 against a Mr Myles Hugill.   This incident occurred some three weeks prior to Mr Atkins’ death.  The allegation is that Mr Atkins became enraged with  Mr Hugill’s  driving  and  rammed  him  with  his  car,  deliberately  damaging Mr Hugill’s car by running his van along the side of it.

[9]      Mr G   has given evidence that he had been told by Mr Atkins about both of these incidents.  The relevance of that evidence from Mr G   is not contested by the Crown.  It is accepted that it has relevance to Mr G  ’s understanding of the circumstances as he believed them to be on the night of 12 January 2009.  The objection is to there being any further evidence led about those incidents now that Mr G    has  given  that  evidence.    It  is  the  Crown  argument  that  now  that Mr G   has given his evidence, adducing further evidence on the incidents is

unnecessary and indeed irrelevant.  If further evidence of the incidents does have any probative value, the Crown submits that it would have an unfairly unprejudicial effect on the proceeding and that that prejudice outweighs any probative value.

[10]     It is necessary to rule on this point now before the evidence can proceed further.

[11]     Mr Newell  for  Mr G    in  resisting  the  objection  submits  that  it  is procedurally unfair for the Crown to raise a complaint about the evidence being adduced at this late point in the trial.  He also submits that further evidence will have relevance to Mr G  ’s state of mind, and is relevant propensity evidence.   To consider the respective arguments it is necessary to place them in the context of the procedural history of the proceeding in this Court.

Procedural history up to the time of the objection

[12]     On 8 June 2009 application was made on behalf of Mr G   for orders that “evidence” of the Code Bar and road rage incidents be admissible in the proceedings. Submissions were filed in support of that application on 16 July 2009.   In those submissions  it  was  stated,  again,  that  the  “evidence”  should  be  admissible. Reference was made specifically to there being a serious assault on Mr Townsend, and that the alleged victim of the road rage incident was Mr Myles Hugill.

[13]     The Crown responded by a submission of 30 July 2009, which succinctly set out the Crown’s position.  I set it out in full:

1.Having read the submissions by the applicant, it is apparent that the basis upon which the disputed evidence is sought to be admitted is as set out in paragraph 3.12 of the applicant’s submission, namely that he  was  aware  of  the  deceased’s  reputation  and  propensity  for violence and that this affected his perception of the situation.  If that be the case, then, as the Crown set out in its Notice of Opposition, the evidence is admissible.

2.The recognition that the evidence is admissible is subject, however, to the reservation that it is only admissible if the accused himself gives the evidence.   Otherwise, it simply becomes an exercise in putting prejudicial material before the Court which has no real relevance to the issue of self defence.

3.The Crown’s position therefore remains the same as set out in the Notice of Opposition and appears to be in accordance with the submissions on behalf of the applicant.

The  submission  appears  to  say that  the  Crown  accepted  that  the  evidence  was admissible but only if the accused himself gave the evidence.

[14]     The matter came before Priestley J on 6 August 2009.  Matters were resolved before  him  by  consent  and  it  was  not  necessary  for  him  to  give  a  judgment. However, he recorded the position in a detailed minute.  He noted that the essential live issue would be the reasonableness of the force employed by the accused, and that the accused’s subjective knowledge about the deceased’s past and his probable propensity to violence would be highly relevant.  He noted at [6]-[7]:

[6]       The accused’s 344A application has been dealt with by agreement between counsel and advice given to me from the bar today.  The Crown’s initial opposition to Mr Newell’s application was that the evidence, although admissible, could only be deployed legitimately if the accused himself gave evidence about his subjective beliefs at the time of the homicide.  Mr Newell has filed an affidavit from the accused dated 15 July 2009 which sets out those matters of which the accused had knowledge.

[7]       Mr Newell advises me that the accused will in fact, as I suspect he would be obliged to do to lay the foundations of the defence, be giving evidence at his trial.   On that basis Mr Burns’s opposition crumbles.   The only remaining caveat of Mr Burns, properly raised, is that it would not be permissible  for  evidence  to  be  introduced  relating  to  past  violence  or activities of the deceased of which the accused has no knowledge at the time of the homicide ...

[15]     This was the position that pertained up to the trial.   There had been some discussions between the Crown and defence about the further evidence to be called in relation to Mr Atkins’ past activities, but no further agreement was made beyond that recorded by Priestley J.

[16]     Mr Newell in his submissions today has stated that he understood that having taken the unusual step of stating that Mr G   would be called, there was no objection to him calling evidence in addition to that of Mr G   about the Code Bar and road rage incidents, and that he has proceeded through the trial on that basis.

[17]     Mr Williams, who has presented the argument on this matter for the Crown, does not take issue with Mr G  ’s statement as to his personal understanding.

However, he submits that the Crown was proceeding on the basis that evidence about the two incidents in addition to that of Mr G   could only be called to the extent that his recollection was disputed or challenged by the Crown.  In other words, if the Crown decided not to contest Mr G  ’s evidence about the two incidents, that the defence was not able to call further evidence in relation to the two incidents.  That is the position now taken by the Crown in its objection.   I will return to these two different perspectives later in this decision.

[18]     The Crown opened and the first witness called was Ms Dean.  In the course of cross-examination Mr Newell asked her about the Code Bar incident.  She stated that Mr Atkins had used the glass “more of a protection as he was jumped by several others”.  She then saw a number of people on top of Mr Atkins.  Later it was put to her by Mr Newell that evidence would be called about the incident, but she resisted suggestions in cross-examination that she had been having some sort of interchange with the man who was the ultimate victim.   She appeared to resist the implied proposition that it was jealousy that provoked Mr Atkins’ attack.  When she was re- examined by the Crown she was asked about the Code Bar incident and whether she was dancing with anyone.  In general the re-examination enabled her to restate her position  where  she  resisted  the  suggestion  that  she  had  been  interacting  with someone  else.    Cross-examination  also  emphasised  the  distance  she  was  from Mr Atkins when the glass incident occurred.

[19]     In  general  it  is  fair  to  say  that  cross-examination  of  Ms Dean  was unsympathetic  to  the  defence  position  that  this  was  an  extraordinarily  violent incident provoked by jealousy.   The issue of jealousy is relevant in that it is very much the defence case that when Mr Atkins came to the house on the night of

12 January 2009 he was in a jealous rage, and that he had strong feelings of jealousy towards the man he initially punched and kicked when he arrived, Mr Swain.

[20]     When Mr Newell opened for the defence he gave very considerable focus to the two incidents.  Indeed, more than three pages of a nine-page opening are devoted to the two incidents.  This was after Mr Newell had said to the jury that there would be evidence about the question “What was the deceased capable of?”     He also observed  that  this  evidence  would  enable  the  jury  to  know  something  about

Mr Atkins and the type of risk he really posed.  Thus, the evidence was referred to in some detail expressly on the basis that it was relevant to Mr G  ’s state of mind, an objective consideration of the proportionality of the response, and the level of risk to Mr G   and others that night.

[21]     Mr Newell stated specifically to the jury that they would hear evidence from Mr Townsend and his friend Cody Patterson who would give evidence, “and several others”.  He stated that it was intended to call these persons although it might not be necessary to call all of them.  He also stated that there were parallels between the Code Bar incident and what happened on 12 January 2009, because when Mr Atkins thought someone was interested in Ms Dean his reaction could be very damaging to other people.   He also referred to the road rage incident and stated that the jury would hear evidence which would corroborate what Mr G   knew.   He stated that it would fleshed out so that the jury would know the truth, although that was in relation to a point that Mr G   might have overstated the actual incident.

[22]     Mr G    in  his  evidence  referred  to  both  incidents.    He  referred  to Mr Atkins “glassing someone in the head”, and the road rage incident, although his references to these incidents were of a fairly general nature.  He was not asked and he did not state with precision the exact words that Mr Atkins had used to him when he had described the incidents.

Relevance of the procedural history

[23]     Mr Newell submits that he has run his case for Mr G   on the basis that he would be able to adduce the evidence of the two incidents.  He submits he was entitled to proceed on this basis.

[24]     An objective reading of the respective defence and Crown documents filed for Priestley J indicates that the Crown did accept that evidence about the incidents could be called if Mr G   gave evidence.   There is nothing to indicate any limitation  on  that  position  beyond  Mr G    giving  evidence  of  the  incidents. There is nothing to indicate that the acceptance of the further evidence being called was limited to aspects on which Mr G   was challenged.   I read Priestley J’s

minute as being on the same basis as the assumption made by Mr Newell.  When he said that Mr Burns’ opposition crumbled, the reference is to opposition to evidence in addition to that of Mr G   being withdrawn.  Nothing else would make sense.

[25]     Thus, I conclude that Mr Newell was entitled to proceed on the basis that there was going to be no contest about him calling the further evidence of witnesses to the two incidents.  To now prohibit the defence from calling this further evidence would be unfair for procedural reasons alone.  There is now evidence from Ms Dean which  is  not  consistent  with  the  defence  perspective  of  the  Code  Bar  incident. Ms Dean has in her evidence somewhat downplayed the seriousness of the incident and the fact that it was the consequence of jealous rage.  Her position was somewhat supported by the re-examination of the Crown.  It is only fair that the defence have an opportunity to call other evidence from other persons who were there as to what actually happened.

[26]     It will be most unhelpful to the credibility of the defence if evidence that Mr Newell said he would lead in his opening is not now led.  The jury are expecting to hear this evidence.  No objection was taken when Mr Newell said it would be led. If it is not now led the jury will wonder why.  Any speculation could well be to the detriment of the defence.

[27]     Mr Newell has also observed that his examination of Mr G   was made on the basis that he would be calling the further evidence about the incidents.  He did not need to press him for detail on what he was told in the same way he would have if Mr G   was the only person to give evidence about those incidents.  I accept that if he knew that Mr G   was his only opportunity to present the detail of those incidents, that he would have questioned harder in examination-in-chief.

[28]     Thus, I approach the Evidence Act 2006 considerations on the basis that the defence has reasonably proceeded on the basis that it could call this further evidence without objection, and that it is now embarrassed to find an objection raised.

Evidence Act 2006 considerations

[29]     One  of  the  purposes  of  the  Evidence Act 2006  as  set  out  in  s 6(c) is  to promote fairness to parties and witnesses.  It is a fundamental principle that relevant evidence is admissible.  It is stated at s 7(3):

7        Fundamental principle that relevant evidence admissible

…

(3)Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

This is subject to the general exclusion at s 8, which provides:

8        General exclusion

(1)In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a)      have an unfairly prejudicial effect on the proceeding; or

(b)      needlessly prolong the proceeding.

(2)In   determining   whether   the   probative   value   of   evidence   is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

[30]     The relevance of the evidence is best considered under the two headings already mentioned: the relevance to Mr G  ’s state of mind at the time and any objective consideration of the reasonableness of his response; and, secondly, the seriousness and nature of the violence at the time shown by Mr Atkins, which can be seen as a propensity issue.

[31]     Propensity evidence is defined in s 40(1)(a) as:

40       Propensity rule

(1)      In this section and sections 41 to 43, propensity evidence—

(a)  means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; …

[32]     I consider that evidence of both the Code Bar and road rage incidents tends to show Mr Atkins’ propensity to go into extreme violent rages when provoked by jealousy or other incidents that offend his sensibilities, and for the violence to be of a remarkably severe and uncontrolled nature.   The Code Bar incident was on any objective consideration unprovoked, but if it is shown to have a genesis in jealousy that has parallel to the defence case, and why and how Mr Atkins was violent on the night of 12 January 2009.   Thus the genesis and consequence are similar.   The violence was very extreme.  In both cases it was in circumstances where there were other people present.   The Code Bar incident took place in a crowded bar and Mr Atkins’ actions showed a remarkable disregard for likely consequences, just as they appear to have done on 12 January 2009.

[33]     Although the Crown has not contested the fact that Mr Atkins has this violent past and Mr G  ’s knowledge of it as he expressed it in his evidence, there are nevertheless issues of fact and degree which will undoubtedly enhance the defence case  if  further  evidence  can  be  called  concerning  the  incident.    Mr G  ’s evidence about it was very general.

[34]     In relation to the road rage incident it showed an extraordinary over-reaction to a minor slight, in circumstances  which showed a complete disregard for the likelihood that his number might be taken and he would be apprehended in due course for his actions.   It was road violence of a very unusual and extreme type repeated  over,  at  least,  a  number  of  minutes.    In  neither  incident  is  there  any evidence of some sort of natural abatement of rage.  Again, Mr G  ’s description of the incident was quite general and further evidence will have probative value for the defence.

[35]     In relation to the relevance in terms of Mr G  ’s state of mind, the further evidence beyond that already given by Mr G   may still have some additional probative value.  As I have observed, Mr G  ’s own evidence on the point was of a general nature.  He has given evidence that Mr Atkins would confide with him very openly on past events, and the jury may well be prepared to infer that Mr Atkins told Mr G   about details that Mr G   has not recounted in his evidence.

[36]     As I have noted, Mr Newell did not question Mr G   closely on what he was told by Mr Atkins, anticipating, reasonably, that he would be calling this further evidence.   Of course, if the evidence goes further than that which Mr G   has indicated he knew, then it would not have probative value in terms of his state of mind, and it may be that specific aspects of the evidence will have to be examined with that in mind.  However, in general terms, a detailed account of the incidents that he was aware of will have some probative value.

Prejudice to the Crown case

[37]     The evidence of these incidents will, of course, be prejudicial to the Crown case, but evidence that has probative value always prejudices the other side.   The issue is whether the prejudice will be unfair.  It will be unhelpful to the Crown case for the fact of these incidents to be reinforced by accounts being given by those involved, in particular Mr Townsend, who has suffered a severe injury.   However, the general fact of these incidents and Mr Townsend’s injury is before the jury. Although  Mr G   did  not  refer  to  the  blindness  in  one  eye,  Mr Newell  has already referred to this in his opening without objection from the Crown.

[38]     Nevertheless, the issue of unfair prejudice to the Crown case might have been more evenly balanced if this argument had proceeded prior to the trial.  Prior to trial if  the  evidence  had  been  excluded,  Mr Newell  could  have  planned  his  case accordingly, briefed Mr G   accordingly and examined him accordingly.   He could have made a more informed decision as to whether it was wise to cross- examine Ms Dean on the Code Bar incident or, if he did, how far he should go. What clearly tips the balance in favour of this evidence being admitted is the procedural history that I have outlined and the way in which Mr Newell has run his case.

[39]     Section 8(2) of the Evidence Act 2006 provides:

8        General exclusion

…

(2)In   determining   whether   the   probative   value   of   evidence   is outweighed  by  the  risk  that  the  evidence  will  have  an  unfairly

prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

[40]     Given the way this case has unfolded I conclude that the right of Mr G   to offer an effective defence will be affected if he is now prevented from calling the evidence he anticipated he would be able to call.  It will, of course, be open to the Crown to object to aspects of any briefs which go further than offering the relevant propensity evidence and evidence as to Mr G  ’s state of mind, and there may be further issues that need to be determined in that regard.

[41]     However, it is my ruling that the Crown’s general objection to the admission of further evidence about the Code Bar and the road rage incidents does not succeed. That evidence, subject to specific objections, is admissible.

………………………..

Asher J