R v Hamilton

[2018] NZHC 2351

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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-044-4671

[2018] NZHC 2351

BETWEEN

THE QUEEN

Appellant

AND

AIDEN HAMILTON

Respondent

Hearing:	6 September 2018
Counsel:	B Northwood for Appellant A Bloem for Mr Hamilton
Judgment:	7 September 2018

JUDGMENT OF SIMON FRANCE J

[1]                  Mr Hamilton is one of a number of inmates charged with causing grievous bodily harm to a fellow prisoner. During the course of a prolonged attack involving five people, the victim was stabbed and beaten. It is not alleged that Mr Hamilton was responsible for the stabbing. The motivation seems to be inter-gang antipathy.

[2]The Crown apply to call propensity evidence being an assault allegedly

carried out by Mr Hamilton about a month later on a different inmate. That inmate was stabbed. Mr Hamilton has denied the charge. The motivation for that assault is uncertain but does not appear to be gang driven.

R v HAMILTON [2018] NZHC 2351 [7 September 2018]

[3]                  The alleged propensity is Mr Hamilton’s calculated violent offending within a prison environment towards other inmates.

[4]                  The main similarities are venue (prison) and victim (fellow inmate). The significance of these similarities is, however, limited by the fact they are not matters within Mr Hamilton’s control or choosing. It is difficult to see them as any sort of

characteristic or signature.

[5]                  The two incidents are quite different in their nature, seemingly in their motivation, and in the conduct alleged against Mr Hamilton. In terms of his

participation in the group assault, the later (alleged) targeted attack on a particular inmate will not particularly assist the jury in determining any trial issue. The

similarity of violence in a prison environment does not much advance matters. The common use of a knife potentially elevates the probative value, but there is nothing linking Mr Hamilton to the use of the knife in the first event.

[6]                  This analysis is based on the proposition that identity will not be a trial issue on the group assault. There is ample camera footage as well as first hand observations by officers able to see but not access the event. Should that prove to be otherwise, this decision can obviously be revisited by the trial Judge (as it can

anyway). I accordingly assess the probative value as insufficient to merit disclosing to the jury that Mr Hamilton has (allegedly) stabbed a different inmate (not having stabbed one in the group assault).

[7]Mr Northwood notes there is an element of linkage between the two

incidents. After the first incident Mr Hamilton had a telephone conversation in which he suggests the victim of the second attack is somehow connected to the first incident. It is far from clear how, or what exactly is being said. I do not consider

that is the type of linkage that advances the case for propensity. There is a joinder application which I am not determining, and I consider it more relevant to that.

[8]                  Section 43(3) of the Evidence Act 2006 identifies a number of factors the Court may consider on such an application. It is not necessary to discuss them in detail here. However, for the record I note the propensity conduct is a single event occurring about a month after the alleged offending concerning which it would be led. I have identified the similarities and noted why limited weight can be attached to them. The concept of unusual is not easy when one is talking about violence in a prison but I accept it is unusual that a prisoner within one month is allegedly involved in two incidents of serious assault. However, other than that fact, there is no real similarity and I consider it insufficient to justify leading evidence of the second incident as propensity on the first. The key reason is Mr Hamilton’s very different apparent role in the first incident.

[9]                  At the group trial, it is likely the trial issue for Mr Hamilton will be what his knowledge and commitment to the cause was, it being clear others were the lead players. The second assault, and the motivation for it, is sufficiently different to mean it says little about what Mr Hamilton’s role in the first attack might be. There is in these circumstances obvious prejudice in informing the jury Mr Hamilton has on other unconnected occasions used serious violence in prison.

[10]The application is dismissed.

Simon France J