R v La Mont
[2016] NZHC 2501
•19 October 2016
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
CRI-2015-004-12652
[2016] NZHC 2501
THE QUEEN v
DUSTIN LA MONT
Hearing: 19 October 2016 Appearances:
M Hammer for Crown
D Hoskin and K P Broshahan for Defendant
Judgment:
19 October 2016
(ORAL) JUDGMENT OF LANG J
[in relation to pre-trial issues]
R v LA MONT [2016] NZHC 2501 [19 October 2016]
[1] Mr La Mont is charged with murder. The Crown alleges that at around midnight on 1 December 2015 Mr La Mont fatally stabbed Mr Nathan Pukeroa. The Crown also alleges that in the same incident he wounded Mr Devaray Junior Cole- Kavarji with intent to cause him grievous bodily harm. Mr La Mont’s trial is due to commence on 25 October 2016. The purpose of this judgment is to record rulings I have made in anticipation of trial.
Application by Crown for a direction that the jury view the scene where the incident occurred
[2] The Crown applies for a direction that the jury be taken to view the scene where the incident giving rise to the charges occurred. This is a residential street in Mt Albert. The Crown submits that the jury will benefit for several reasons from viewing the scene. In particular, they will be able to place items and objects in and around the scene in proper context. The defence joins with the Crown in advancing the application.
[3] I consider this application needs to be dealt with by the trial Judge based on her appreciation of the benefits that might flow from a view of the scene. Experience has shown that such exercises are fraught with difficulty and need to be carefully managed if they are to be successfully undertaken. Generally speaking, a view will not assist a jury to have a significantly greater appreciation of a scene than will be the case from viewing photographs and plans of the scene.
[4] In the present case the focus of the jury will be on an incident that occurred outside 21 Renton Street, Mt Albert. The issue will be whether the Crown can prove that Mr La Mont stabbed the two victims with the necessary intent to commit the crime of murder. The defence will be self-defence. In those circumstances it is difficult at first blush to see how a view of the scene could advance matters further.
[5] At this stage I decline to deal with the application. Counsel may renew it before the trial Judge at a suitable point in the trial once the Judge has had an opportunity to acquaint herself with the facts of the case.
Application by defence for an order requiring the Crown to call a witness
[6] Counsel for Mr La Mont seeks an order under s 113 of the Criminal Procedure Act 2011 requiring the Crown to call Ms A to give evidence for the Crown. Ms A and her father were present at the address where the incident giving rise to the charges occurred. Ms A is 13 years of age. She has given statements to the police in which she indicates that her father placed her in a motor vehicle on the verge of the street outside 21 Renton Street shortly after the incident occurred. She says that from her seat within the motor vehicle she could see across the road to an area where two police cars were parked. She says she saw a knife lying on the road lit up by the lights from the police vehicles. She was able to provide the police with a detailed description of the knife, and also made a detailed drawing of it. She has also drawn a diagram of the scene showing the location of the knife.
[7] The Crown does not wish to call Ms A as a witness because it considers her evidence to be unreliable. The Crown points to several factors in support of this conclusion. First, Ms A did not tell the police about the knife when she first dealt with them on the evening of the incident. Secondly, the area was carefully searched after the incident and no knife was found. Thirdly, none of the police officers or ambulance officers who attended the scene recalls seeing a knife lying on the ground in the area where Ms A saw it. Fourthly, luminol testing in that area does not reveal evidence of blood staining, but Ms A’s diagram shows blood immediately around the knife. Fifthly, the Crown points out that a limited number of people were present at the address when the incident occurred. Once the police arrived all of those persons were kept within the control of the police. For that reason, the Crown says, there is no possibility that any of the persons at the address could have removed a knife.
[8] I consider that all of those factors justify the Crown’s conclusion regarding the reliability or otherwise of Ms A’s evidence. Nevertheless, I consider the evidence to be material from a defence perspective because it may lend weight to the defence proposition that the deceased and the other victim left the address on the evening in question to confront Mr La Mont after they saw him walk past their address and look over the fence. Although Mr La Mont does not report seeing either of the two men carrying a knife, the defence suggests that the very fact that one of them may have
been carrying a knife will assist the jury to gauge their state of mind and intention at the time they left the address to confront Mr La Mont.
[9] I would not ordinarily have required the Crown to call Ms A as a witness because of the fact that it considers her to be unreliable. The material that Ms Hammer has placed before me this morning demonstrates, however, that Ms A and her father are hostile in their attitude towards the defence. They have indicated to the police quite clearly that they do not wish to give evidence for the defence or to assist the defence in any way. In addition, the police have had considerable difficulty in locating Ms A and her father.
[10] I am concerned that if the defence issues a witness summons in respect of Ms A, she may not appear, or may be an extremely reluctant witness. I do not anticipate that this will be the case in the event that the Crown asks her to give evidence. I consider the Crown’s position can be adequately protected by the prosecutor restricting the topics that he or she puts to Ms A. It may be that the prosecutor does no more than introduce Ms A as a witness and then leaves it to the defence to cross-examine her. That would leave the Crown in a position where it could justifiably make a submission to the jury that they should not accept Ms A’s evidence about the existence of the knife notwithstanding the fact that she was called as a Crown witness.
[11] I therefore make a direction under s 113 of the Criminal Procedure Act 2011 that the Crown is to call Ms A as a witness for the Crown.
Application by defence for order declaring text messages admissible
[12] Counsel for Mr La Mont seeks an order that certain text messages sent by two of the occupants of the address on the afternoon of 1 December 2015 are admissible. The text messages were sent from the phone of Ms Jodie Kerr, who was at the address. The defence say that the messages are likely to have been sent by or on behalf of Ms Kerr’s brother, Mr Kauri Kerr, who was also present at the address on 1 December 2015.
[13] The text messages establish reasonably clearly that the sender of the text messages was endeavouring to purchase an ounce of methamphetamine. That transaction was evidently concluded at the Renton Road address on the afternoon of 1 December 2015. A second set of text messages indicates that the sender of the messages was also seeking to acquire sets of pseudoephedrine, which is a precursor ingredient for the manufacture of methamphetamine. The text messages suggest that that transaction was also completed later in the afternoon of 1 December.
[14] The defence contends that the text messages are relevant because they show that significant quantities of methamphetamine and pseudoephedrine were likely to have been at the address of 21 Renton Road on the evening of 1 December 2015. Given the limited number of persons at the address that evening, the defence will ask the jury to accept that the deceased and Mr Cole-Kavarji were aware of the existence of those drugs. The defence will also put to Mr Cole-Kavarji text messages sent by the deceased indicating that he was involved in drug dealing activities.
[15] The defence will contend that persons within the address became concerned when they saw Mr La Mont walking past the address and showing interest in what was going on there. The defence will say that Mr Cole-Kavarji and the deceased left the address specifically to confront Mr La Mont about why he was showing interest in their address. This will support the defence proposition that the deceased and Mr Cole-Kavarji attacked Mr La Mont, and that he retaliated in self-defence.
[16] I consider that the material is relevant for the reasons suggested by the defence. The real issue is how to place the material before the jury in the most effective way. Counsel have conferred this morning and have largely reached agreement regarding this issue. They propose to place admissions of fact before the jury that summarise the effect of the material contained within the text messages. This will enable the defence to proceed on the basis that drugs were likely to be at the address on the evening of 1 December, and that this may have provided a motive for the deceased and Mr Cole-Kavarji to leave the address in order to confront Mr La Mont.
[17]I therefore rule that the text messages are relevant and admissible.
Application by defence for excisions from DVD interview
[18] Mr La Mont was interviewed by the police at length on 9 December 2015. The interview was recorded on videotape, and the Crown proposes to play this to the jury.
The television programmes watched by Mr La Mont on 1 December 2015
[19] During the course of the interview, Mr La Mont discloses that during the evening of 1 December 2015 he and his girlfriend had watched several episodes of a television programme called “The Walking Dead”. At the request of the interviewing officer, Mr La Mont then gave a detailed description of the programmes. These included acknowledgements that the programmes contained violence.
[20] The Crown submits that this material is relevant because it discloses what Mr La Mont was doing in the period leading up to the incident giving rise to the charges. The defence submits that any probative value the material may have is outweighed by its unfairly prejudicial effect on the defence.
[21] I uphold the defence submissions on this point. The nature of the television programmes that Mr La Mont watched form part of the overall background, but they cannot really assist the jury to determine the central issues at trial. These will relate to the events that occurred outside 21 Renton Street, and Mr La Mont’s state of mind when he stabbed the deceased and the other victim. For that reason I rule inadmissible that part of the interview between line 9 page 38 and line 21 page 40 of the transcript.
[22] During the course of argument I advised counsel that, although I have ruled those passages from the interview inadmissible, it may be possible for the prosecutor to nevertheless cross-examine Mr La Mont regarding the television programmes provided the prosecutor does so in a manner that links them to Mr La Mont’s state of mind on the evening of 1 December 2016. That issue will need to be determined by the trial Judge if necessary.
The “lock knife”
[23] Immediately prior to the interview on 9 December 2015, Mr La Mont provided the police with a “lock knife” he had been carrying on the day before the incident
giving rise to the charges. He told the police he had used this knife to self-harm on that date. A detailed discussion then ensues regarding the workings of the knife. The defence objects to this material on the basis that it is irrelevant to the issues the jury will be required to decide. The Crown wishes to place it before the jury as part of an overall attack on Mr La Mont’s credibility based on lies he allegedly told when initially interviewed by the police.
[24] I uphold the defence submissions on this point in relation to the passage of the interview commencing at line 16 page 57, and ending at line 24 page 58 of the transcript. I also uphold the defence submissions in respect of the portion of the interview commencing at line 12 page 59, and ending at line 2 page 60 of the transcript. I do not consider the jury needs to have that material because the workings of the knife are irrelevant to the issues the jury will be required to decide. There is no suggestion that that particular knife was involved in the incident giving rise to the charges. It merely forms part of the background.
Application by defence to exclude portions of text messages
[25] The Crown and defence are working together to create a booklet of agreed documentary exhibits. These include certain text messages sent by Mr La Mont to his girlfriend. The Crown will adduce the text messages to show that Mr La Mont was engaged in a long-running series of confrontations with his neighbours. He lived at 19 Renton Road, which was immediately adjacent to the address where the incident giving rise to the charges took place.
[26] One of the areas of aggravation between Mr La Mont and the occupants of 21 Renton Road was the fact that the occupants of 21 Renton Road kept a number of dogs. On occasions, the dogs had attacked people. In two text messages Mr La Mont uses the words “fucking animals”. The Crown submits that this is relevant because it demonstrates Mr La Mont’s antipathy towards his neighbours, and will assist the Crown to rebut his assertion that he was acting in self-defence at the time of the incident giving rise to the charges.
[27] I consider that the text messages are ambiguous. They may be referring to Mr La Mont’s neighbours, or they may be referring to the dogs that are the subject of the
text messages. In any event the text messages in question were sent on 9 and 16 October 2015. In a judgment delivered on 6 September 2016, Duffy J ruled inadmissible a number of tweet messages posted by Mr La Mont relating to his neighbours.1 These included a tweet message sent on 28 November 2015. Duffy J considered that these messages were too remote from the events on the evening of 1 December 2015 to be of assistance to the jury. For that reason she considered their unfairly prejudicial effect outweighed their probative value. I take a similar view in relation to the use of the words “fucking animals” in the two text messages to which I have referred. I therefore rule those words inadmissible.
Psychological evidence for the defence
[28] Counsel for Mr La Mont has now filed a brief of evidence of Sabine Visser, a registered clinical psychologist. She speaks about Mr La Mont’s history of difficulties with depression and anxiety. She also refers to Mr La Mont’s version of events in relation to the incident giving rise to the charges, and discusses Mr La Mont’s likely mental state at the time of that incident. Mr Hoskin explains that he sought a full report from Ms Visser relating to these issues because he wanted to place everything that might be of relevance before the Crown and the Court.
[29] I have raised with Mr Hoskin the limits to which such evidence can be taken. This issue is likely to need to be the subject of further consideration by the trial Judge at the conclusion of the Crown case.
Lang J
Solicitors:
Crown Solicitor, Auckland
1 R v La Mont [2016] NZHC 2095.