R v H HC Whangarei CRI 2005-088-4349

[2007] NZHC 103

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2005-088-4349

THE QUEEN

v

H
S

Hearing:         5 March 2007

Appearances: P J Magee & A L Patterson for Crown

L Postlewaight &  M A Gardam for H 

A B Fairley & W D McKean for S 

E Remmerswaal for Manager of CYPFS Judgment:  5 March 2007

RULING (No 1) OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

Webb Ross Johnson, Whangarei for S 

R V H AND ANOR HC WHA CRI 2005-088-4349  5 March 2007

[1]      In contending that S   and H   murdered Stanley Wells on 2 December 2005 in Matai Street, Otangarei, the Crown in part relies on the evidence of three eye witnesses, one of whom, CP, was the only eye witness to give evidence at depositions. All three made statements to the police on 5 December

2005 and all will give evidence broadly consistent with their statements except, in one respect, CP.

[2]      All three will say that they saw   H   punch Stanley Wells once to the face, causing him to fall down on the footpath. All will say that   S   punched him next. CP and NT will say, that before he did that, he picked up Mr Wells from the footpath and propped him against a fence, then punched him. They will say that he went down a second time. They differ as to whether his pockets were rifled before or after. CP says that Mr S   rifled his pockets before, LT after. LT will say only that   S   punched Mr Wells.

[3]      NT, consistent with her statement, will say that   S  , once Mr Wells was on the ground a second time, kicked him once to the head softly. CP will say, as she said for the first time at depositions when cross-examined, that she saw   S   kick Mr Wells twice to the upper body.

[4]      Critical to the character of the assault and its significance to each accused is that final kicking. Mr S  ’s counsel says that it must be critical to the Crown’s case under s 167 and to rebut any claim of self-defence by Mr S  ; in part supported by the evidence of LT. It is said for   H   that, though he is not described as having kicked Mr Wells himself or as having rifled his pockets, it is critical to his culpability as a party. He was, on the evidence as it is to be, standing right there.

[5]      CP is a child in care and Mr S  ’s counsel has served on Kono Clark, the  Manager  of  the  Children  Young  Persons  and  Their  Families  Service  in Whangarei, a witness summons requiring her to produce CP’s file at this trial. Ms Clark has allowed Mr S  ’s counsel to inspect the file (that happened last Friday) and has made available today copies of aspects of the file thought relevant to CP’s credibility. However, Ms Clark, as her own counsel has said today, asks to be

excused having to produce those documents, relying on s 35(1) of the Evidence Amendment Act (No 2) 1980. To produce the documents, she says, would be in breach of the confidence inherent in the special relationship that the Service has with CP as a child in care.

Section 35(2) issues

[6]      Whether Ms Clark ought to be excused turns on the three issues identified in s 35(2) and there is no issue as to the second in subs 2(b): the fact of the special relationship between the Service and CP as a child in care, or the intimate nature of CP’s confidences to her carers recorded in the documents in issue. In that respect I agree with Potter J’s decision in Holdaway v The Queen (HC Rotorua, T 990884, 30

March 2000). The issue is whether, notwithstanding that, the documents must be disclosed in evidence to secure a fair trial for Mr S   and Mr H  ; and that turns, as subs 2(a) expresses it, on ‘the likely significance of the evidence to the resolution of the issues to be decided’. The third issue, in subs 2(c), to which I will turn finally, is not to be ignored either: the likely effect of disclosure on CP herself.

Documents in issue

[7]      The documents abstracted from CP’s file thought relevant to this case lie in two categories and Mr S  ’s counsel no longer actively seeks those in the first category,  though Mr  H  ’ counsel claims they  have  continuing  significance. They begin in 2001 and confirm that CP has been in care twice, perhaps more than twice now, initially in 1997, and has suffered multiple placements and sexual abuse. In 2001, and for some time afterwards, she had a propensity to misbehave and lie; a propensity attributable, it seems, to her vulnerability. That propensity has not been evident in recent years.

[8]      The second category of documents, which is in issue, coincides in time with the incident in December 2005, the subject of this trial, of which CP was one eye witness; an experience, it seems, that compounded her vulnerability. More especially

is that so because she has been obliged to live for the past year or more in the South

Island.

[9]      There are two reports before the event from mental health workers in July - August 2005. One is from Te Roopu Kimiora in Dargaville, dated 27 July, and the other on 5 August from the Auckland District Health Board. They are best summarised, I consider, in the second. In that report CP is described as anxious, sad and tearful; and as reluctant to participate in her assessment. She is reported to have heard voices inviting her to kill herself and to having admitted to an instinct to self- harm. She is described also, however, as having ‘congruent effect’ and as oriented as to time, place and person, as organised in thought. She is not thought to suffer any disorder of thought or perception or to be at immediate risk of harming herself.

[10]     The next report of relevance is after the event, from a consultant psychiatrist to the Canterbury District Health Board dated 15 August 2006. Her behaviour when she was first in the lower South Island, he notes, was delinquent and called for institutional care. But, he notes also, she had adjusted well, though suffering still from trauma, made worse when she found out that an uncle, who had abused her sexually, had also abused her mother. In that context the psychiatrist, somewhat elliptically,  describes  CP  as  suffering  frequent  flashbacks,  re-experiencing  the trauma, as then appearing disconnected from her surroundings and as hearing voices and seeing people that others could not see or hear. However, that he considers, is attributable to the trauma CP has suffered, not to any frank disorder of perception.

[11]     The final report, again from the Canterbury District Health Board, dated 29

September 2006, is the only one that speaks in any detail of CP’s response to the incident resulting in Mr Well’s death. It is described as a psychiatric assessment summary but that is misleading. It is by a social worker, relying on the psychiatric report and fleshing it out, relying not on what she has seen for herself but on what another social or mental health worker has told her. Amongst the unseen stimuli CP had responded to, she records, was Mr Wells. Mr Wells, it appears, blamed CP for not preventing his death and CP carried a burden of guilt.

[12]     That report might suggest that the flashbacks the psychiatrist describes could relate as much to the death of Mr Wells as to the effect of sexual abuse.  Once again, however, there is no suggestion that CP suffered any disorder of perception.

Conclusions

[13]     Having reviewed the evidence CP is to give against that of the two other eye witnesses and what is admitted by the accused, I consider that the relationship of confidence between CP and the Service should remain paramount and that disclosure in evidence of the material sought is not necessary to ensure that this trial is fair.

[14]     First, the evidence that CP is to give at trial is that set out in her statement on

5 December 2005 within three days of the incident, subject to one exception, the fact that she did not disclose kicking. That statement coheres with the evidence to be given by the two girls, whose capacity to give accurate evidence is not questioned today, NT and LT. There are differences but they are within a normal tolerance. There is nothing in that of itself suggesting CP’s account results from any disorder. Moreover, what she saw and spoke to on 5 December, with the exception of the kicking and the rifling of the pockets, is what both accused concede.

[15]     Secondly,  the  variance  between  what  CP  first  described  seeing,  which stopped short of kicking, and the addition of the kicking, is clearly significant and was no part of her brief at the preliminary hearing. Then the kicking only emerged in cross-examination. That variance is open to attack for prior inconsistency and fabrication but neither need depend on the material now sought. Nor could it. The material does not disclose that CP has ever suffered a disorder of perception. It does document that she has heard voices but those voices are not of a kind relevant here. One voice told CP to harm herself, the other to accept blame for Mr Wells’ death. Only the latter could be pertinent yet it seems to have come to the fore after she made her most definitive statement on 5 December 2005.

[16]     Thirdly, there is, furthermore, this difficulty. The probative value of these reports has to  be questionable. Each tends to draw on earlier  reports and  to  be hearsay on hearsay. The only function these reports could serve the defence, if they

were before the jury, and I say this in no sense critically, is as a source of innuendo. As a source of questions about CP’s stability and reliability that neither the reports themselves nor the evidence as a whole could begin to answer. That cannot be in the interests of a fair trial.

[17]     Finally, as I said at the outset, there is the distinct consideration, whether there ought to be disclosure, having regard to CP herself. If the material before the Court demonstrates anything, it is that her life has been highly damaging and that she remains highly vulnerable. She has had few in whom she can trust and amongst those few, it seems, are those caring for her. If then, what she has disclosed to them in confidence were able to be put to her to challenge her credibility that could be extremely damaging. Forensically there is no basis for exposing her to that risk.

[18]     For those reasons I set the witness summons aside and I direct that counsel return to the Service for destruction the material supplied for the purpose of this hearing. The Court copy will be retained for the sake of the record but will be held in

a sealed envelope, not to be opened except by order of a Judge.

P.J. Keane  J