R v Guild Ca84/04

[2004] NZCA 414

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

84/04

THE QUEEN

v

JESSE MICHAEL GUILD

Hearing:         6 April 2004

Coram:Hammond J William Young J Chambers J

Appearances: P K Feltham for Crown

G J King and T F Rickard-Simms for Respondent Judgment:  7 April 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

A crash on the Western Hutt Road

[1]    On 28 March last year there was a terrible crash at the intersection of  Western Hutt Road and Grounsell Crescent in Lower Hutt. Two cars collided, leaving two people dead and another injured. Following the collision, the police

R V JESSE MICHAEL GUILD CA 84/04 [7 April 2004]

charged two people. We are concerned on this appeal with just one of the two  people charged, Jesse Guild. The Crown have filed an indictment against him, alleging that he is guilty of manslaughter with respect to the two people killed in the collision. The Crown also charges him with reckless driving causing injury, contrary to s36(1)(a) of the Land Transport Act 1998.

[2]    The Crown case is that, on the night of 28 March 2003, Mr Guild was driving his Mazda motor vehicle along Western Hutt Road in the direction of Wellington.  As he approached the controlled intersection with Grounsell Crescent, he moved into the right-hand lane. The Crown asserts that the right-hand arrow showed red. The Crown says that Mr Guild then turned right against the red arrow, intending to turn into Grounsell Crescent. His car then collided with a Mitsubishi coming along Western Hutt Road in the other direction. The Crown case is that the Mitsubishi driver was partly at fault: he ran either an amber or a red light. The Mitsubishi driver is the other person who has been charged and who has already faced a trial.

[3]    One of the crucial facts in issue in Mr Guild’s trial will be whether he did proceed through the intersection on a red arrow.

[4]    The defence will be that, when Mr Guild turned, the arrow was green. The defence case is that the Mitsubishi driver was completely at fault for the collision: he went through a red light.

[5]    The Crown advised the defence of its intention to call evidence of Mr Guild’s driving at this intersection on some earlier occasions. The Crown says that Mr Guild knows this intersection well and that he has on other occasions turned right on a red arrow at this intersection. The Crown says that this evidence of Mr Guild’s driving on earlier occasions is probative of the crucial issue in this trial, namely whether on 28 March last year Mr Guild turned right against the red arrow. The Crown also submits that the evidence is relevant as to whether or not his turning against the red was deliberate.

[6]    The defence opposed the admission of this other evidence. The defence claimed that it was “similar fact” evidence, and that its illegitimate prejudicial effect outweighed its probative value.

[7]    The Crown accordingly applied under s344A of the Crimes Act 1961 for an order that the proposed evidence was admissible. That application was heard by MacKenzie J on 11 March this year. His Honour delivered an oral judgment. He ruled that the evidence was not admissible. His Honour also dealt with some other more general evidence as to Mr Guild’s past driving. He ruled that evidence too inadmissible. The Crown does not challenge that part of the ruling, so we need say no more about it. The Crown does challenge, however, the judge’s ruling with respect to the evidence of Mr Guild’s turning right on the red arrow on this very intersection on earlier occasions.

Issue on the appeal

[8]    There is one issue on this appeal. Was the judge right to exclude  the proposed evidence on the basis that its illegitimate prejudicial effect outweighed its probative value?

The balancing exercise

[9]    The disputed evidence comes from two witnesses. The first is Marianne Stacey, a woman who has known Mr Guild, she says, since about 2001. At the preliminary hearing, she gave evidence that she had regularly been a passenger when Mr Guild was driving. She said that she had often been through the Western Hutt- Grounsell intersection with Mr Guild. The reason for that is that they had friends living in Belmont to which Grounsell Crescent leads. She says that on other occasions when she was with Mr Guild, he had not waited for the red arrow to turn green before he had proceeded to turn right from Western Hutt Road to Grounsell Crescent. She estimated that she had been in the car on probably three occasions when Mr Guild had turned right on a red arrow.

[10]   The other disputed evidence came from Detective Dominic Hayden. He said that on 19 March 2003 – some nine days before the incident with which this case is concerned – he had been off duty travelling along Western Hutt Road. He had noticed a car which had turned left from the Kennedy-Good Bridge onto Western Hutt Road. It was obvious to Detective Hayden that the car must have gone through  a red light when making that turn. Detective Hayden pulled in behind the vehicle.  He noted that it was a brown Holden Camira with a registration number  MU2000. As the Holden approached the next intersection on Western Hutt Road – the Grounsell intersection – it moved into the right lane, as if to turn into Grounsell Crescent. The right arrow was red. Cars were proceeding along both sides of Western Hutt Road: their light was green. After a car passed coming north on Western Hutt Road, the Holden Camira, according to Detective Hayden, suddenly accelerated and moved across Western Hutt Road into Grounsell Crescent. The manoeuvre was done on a red light. Detective Hayden says that he observed one of the wheels spinning and screeching and, as the car made the turn, it started to slide sideways. The driver was throwing his head back laughing as the vehicle slid sideways.

[11]   Detective Hayden was so concerned about the driving he had witnessed that he tried to follow the Holden Camira. But he lost it. Later he returned home.  He  then telephoned the Lower Hutt Police Station as he wanted the police to trace the registered owner of the Holden Camira on the Wanganui computer. The result of  that inquiry showed that the car was registered in the name of Jesse Guild.

[12]   When Detective Hayden gave evidence at the preliminary hearing, he was asked whether he got a good view of the driver of the Holden Camira. He said that he had. He identified the driver as being Mr Guild, the defendant in this case.

[13]   We are well aware that the test for similar fact evidence has been expressed in judgments of this court in slightly different ways. This is not the occasion for attempting yet another formulation, still less a reconciliation of the various cases. There are two reasons for this. First, this judgment is needed urgently as the trial of this proceeding is due to take place immediately after the Easter vacation. Secondly,

we are quite satisfied as to what the result of this case should be, whichever test is applied.

[14]   The first question is always whether the evidence is relevant. In order to determine relevance, one must first establish what factual matters are in issue. It is indisputable in this case that one of the matters in dispute is whether Mr Guild turned right on a red arrow. Indeed, Mr King, for Mr Guild, described this as one of “the critical facts in issue” in this case. That is undoubtedly right. If the Crown fails to prove beyond reasonable doubt that Mr Guild did turn right on a red arrow, the Crown case will fail. This evidence of what Mr Guild did on earlier occasions at this very same intersection is relevant to the principal inquiry, as,  if  the  evidence  of  Ms Stacey and Detective Hayden is accepted, it makes more likely the assertion that he also turned right against a red arrow on 28 March last year: See R v Mokoraka [2002] 1 NZLR 793 (CA) at [48]. It is also relevant as to whether Mr Guild’s turning right against the red was deliberate or advertent. So there can be no doubt about the relevance of this evidence. Indeed, in the end Mr King conceded as much.

[15]   The real difficulty, as so often, comes at the next stage of the inquiry, where one is weighing the probative value of the discrete conduct evidence against its illegitimate prejudicial effect. On that topic, MacKenzie J held that probative value was outweighed. He thought that, if the evidence were admitted, there was real risk that a jury, even properly directed, might too readily attach undue weight to the fact of driving through a red light, and attach too little weight to the necessity to establish the element of danger and the element of a failure to take reasonable care to avoid that danger, which is where, he said, the focus of the charges must be.

[16]   With respect, we do not accept that analysis. There will be a number of facts in issue in this trial. It is not necessary, of course, that the discrete conduct evidence should be relevant to all the likely facts in issue. One of the issues here will be whether Mr Guild turned right against a red arrow at this intersection. The disputed evidence, if accepted, makes that proposition more likely, as it demonstrates that   Mr Guild is a person who regularly uses this intersection, knows the phasing of its traffic lights, and has previously been prepared to run the risk of turning into Grounsell Crescent on a red arrow. This is not a case where the discrete conduct

evidence is general evidence of bad driving, or even running red lights at other intersections. It relates to this very intersection. The discrete conduct  evidence relates to exactly the same chain of events as allegedly occurred in this case, albeit on the other occasions without any unfortunate consequences.

[17]   The illegitimate prejudicial effect of Ms Stacey’s evidence and Detective Hayden’s evidence is low. Certainly the jury will hear that on some previous occasions Mr Guild turned right at this intersection against a red arrow. But that evidence is not in itself particularly prejudicial. This evidence is not in the same league as much “similar fact” evidence, which involves the jury learning of really serious offending on other occasions.

[18]   Mr King’s main point was that this is likely to be a complicated case, with some difficult scientific evidence (which is in dispute) as to how the collision occurred. He submitted that, if the jury were to learn that Mr Guild had previously turned right against the red arrow, that might prove a tempting way out for them, which might lead to illegitimate reasoning: in essence, the jury might simply ignore the scientific evidence and just rely on the prior incidents. We do not accept that.  For a start, from the evidence at the preliminary hearing, we do not consider that this case is going to be particularly difficult for a jury to handle. Further, we do not accept that a jury, if properly directed, would engage in the illegitimate reasoning process to which Mr King referred. It is not to be lightly inferred that a properly directed jury will ignore the judge’s directions and adopt an illegitimate reasoning process.

[19]   We are satisfied that this evidence is properly admissible. It is relevant to a crucial issue in the case. Its probative value easily exceeds its illegitimate prejudicial effect.

Result

[20]   We grant the Solicitor-General leave to appeal against that part of the decision of MacKenzie J ruling inadmissible the evidence of Ms Stacey and Detective Hayden. We allow the appeal.

[21]   There will be an order under s344A of the Crimes Act that the proposed evidence of Ms Stacey and Detective Hayden is admissible. It may be that some parts of Detective Hayden’s evidence can be edited. We are referring there to some of the evidence of preceding bad driving. But whether or not such editing is appropriate may depend on whether Mr Guild accepts that he was the driver that Detective Hayden observed. Whether editing is appropriate is a question counsel should be able to resolve. Alternatively, it will be a matter for the trial judge.

Solicitors:

Crown Solicitor, Wellington