R v La Mont
[2016] NZHC 2095
•6 September 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 2095
THE QUEEN
v
DUSTIN MICHAEL LA MONT
Hearing: 18 August 2016 Counsel:
B Dickey and M Hammer for Crown
D Hoskins for Mr La MontJudgment:
6 September 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 6 September 2016 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors / Counsel: Meredith Connell, Auckland David Hoskin, Ponsonby
R v LA MONT [2016] NZHC 2095 [6 September 2016]
[1] Mr La Mont has pleaded not guilty to one count of murder and one count of wounding with intent to cause grievous bodily harm after an incident at his neighbours’ home in Mt Albert, Auckland.
[2] The Crown applies under s 101 of the Criminal Procedure Act 2011 (“CPA”) for rulings on the admissibility of evidence that it seeks to adduce at Mr La Mont’s trial: namely, Mr La Mont’s posts on the social media site, Twitter (“Twitter evidence”); and his collection of knives, swords and other offensive weapons (“weapons evidence”).
[3] The defence applies for an order under s 30 of the CPA seeking disclosure of intercepted communications between the occupants of 21 Renton Road, Mt Albert, in the period following the homicide. Other defence requests for disclosure have been resolved as between counsel.
Factual background
[4] The following overview of the allegations against Mr La Mont has been taken from the police caption summary. The allegations have not been proven at trial and are disputed by Mr La Mont.
[5] At the material times Mr La Mont was living at 19 Renton Road in Mt Albert, Auckland. At 12.10 am on Thursday 3 December 2015, Mr La Mont was walking along Renton Road and observing the occupants in the neighbouring property, who were having a small gathering. Two men who had been present at the gathering came out onto the road and approached Mr La Mont to determine his interest in their address.
[6] Mr La Mont denied any interest and then swung out at one of the men with a knife that he had been concealing behind his back. He struck the first victim in the left side of his neck, severing the carotid artery. Mr La Mont then approached the second victim and struck him to the right side of his neck, causing a deep wound. The first victim died at the scene and the second victim was transported to Auckland Hospital for emergency surgery.
[7] When spoken to by police a few days later, Mr La Mont admitted the facts as outlined above but claimed that he had acted in self-defence. He said that the victims had approached him from the house and that he was physically trapped between them. One of the men had expressed an intention to “smash him” and at least one punch was thrown. Under those circumstances, he lashed out with a knife in order to protect himself.
Crown submissions regarding s 101 application
Admissibility of Twitter evidence
[8] The Crown submits that the Twitter evidence is admissible under ss 7 and 8 of the Evidence Act 2006, or in the alternative as propensity evidence under ss 40 and 43 of the same Act.
[9] In relation to s 7 of the Evidence Act, the Crown submits that the Twitter evidence has a high probative value:
(a) The Twitter evidence demonstrates a growing frustration, anxiety and animosity towards Mr La Mont’s neighbours that developed into a burning distaste and hatred for them. The Crown contends that these negative feelings were directed towards anyone who was at the neighbours’ address and that Mr La Mont did not differentiate between persons at that address. These feelings led him to want to harm the neighbours. Between February 2014 and December 2015, there are 82 social media posts regarding Mr La Mont’s neighbours, which demonstrate a “consistent mindset” throughout the months preceding the incident.
(b)The Twitter evidence has a tendency to prove or disprove Mr La Mont’s state of mind at the time of the murder. In particular, Mr La Mont had made comments which referred to a “murderous rampage” against his neighbours and that he would “clean this mongrel trash off our streets”, showing that his neighbours’ conduct had previously provoked anger
and frustration. The Crown submits that these posts evidence that Mr
La Mont may have been similarly provoked on the night of the murder.
(c) The Twitter evidence shows a particular intention to cause harm to Mr La Mont’s neighbours. Social media posts which fall into this category include comments made on 19 May 2015 where Mr La Mont indicates that he has deliberately left a plank full of protruding nails on the ground next to the fence so that any trespassers will be injured when they come over the fence.
(d)The Twitter evidence is probative of an intention to cause harm in the days leading up to the incident. In particular, the frequency of Mr La Mont’s posts about his neighbours increases in the week leading up to the offending, to the point that eight out of the nine posts made by Mr La Mont during that period relate to the neighbouring property.
(e) The Twitter evidence shows that in the days after the offending, Mr La Mont displayed a callous attitude to the deceased, including a post in which he wrote, “the ‘victim’, ladies and gentleman..”, with a link to a photo of the deceased. The Crown submits that the attitude displayed in these posts is inconsistent with Mr La Mont’s claim of self-defence.
(f) Finally, the Twitter evidence demonstrates a particular hatred towards people whom Mr La Mont perceived to share similar characteristics to his neighbours and the victims, suggesting that Mr La Mont was more likely to act without regard to those persons’ wellbeing.
[10] The Crown further argues that the Twitter evidence has a tendency to negate the proposition of self-defence, which is the key issue at trial. The Crown submits that the probative value of the Twitter evidence outweighs the risk that its admission will have an unfairly prejudicial effect.1
[11] Alternatively, the Crown submits that the Twitter evidence meets the criteria for admissibility set out in s 43 of the Evidence Act. In particular, the Crown contends that the Twitter evidence has a high probative value, as it demonstrates that Mr La Mont tended to have a particular state of mind; namely one of hate and anger towards his neighbours. The Crown argues that the Twitter evidence suggests that Mr La Mont is more likely to have been an aggressor and therefore negates the proposition of self- defence, which will be the key issue at trial. It says that the probative value of the Twitter evidence outweighs the risk of any prejudicial effect but that in any case, judicial directions can guard against the risk of unfair prejudice arising from the admission of disputed evidence.2
[12] Finally, the Crown submits that the Twitter evidence which post-dates the murder is admissible under s 28 of the Evidence Act as a statement which evidences the mental condition of the defendant at the time when the statement was made.
Evidence of collecting knives and other weapons
[13] The Crown submits that the weapons evidence meets the criteria for admissibility under s 43 of the Evidence Act. In particular, the Crown contends that the weapons evidence has a high probative value because it shows that Mr La Mont specifically selected a small, easily concealable weapon when he went out onto the street; and also because it shows that Mr La Mont is familiar and confident around knives. It says that the weapons evidence is clearly relevant to the question of whether Mr La Mont acted in self-defence and that judicial directions can guard against the risk of unfair prejudice arising from the admission of the disputed evidence.3
Defence objection to s 101 application
[14] Mr Hoskin, on behalf of Mr La Mont, opposes the admission of the Twitter evidence and weapons evidence on the basis that the evidence has little or no probative
value and would be unfairly prejudicial to Mr La Mont.
2 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [7].
3 Mahomed v R, above n 2, at [7].
Evidence of social media posts
[15] Mr Hoskin submits that the Twitter evidence has little probative value, as alleged by the Crown:
(a) The frequency and tone of Mr La Mont’s Twitter posts remains relatively constant over the period examined by the Crown. There is no clear “building” in frustration levels and animosity.
(b)The Crown relies upon one post in particular which it claims is evidence of Mr La Mont’s state of mind, in which Mr La Mont writes:
Can’t believe they removed the ‘provocation’ defence for murder. Rarely have I been more provoked to go on a murderous rampage
Mr Hoskin notes that this post is dated 1 February 2015, 10 months prior to the incident and that in any case, Mr La Mont’s comment records his feelings, rather than any intention to carry out the action in question. There is no expression of an intention to kill, no expression of a contemplated manner of killing, and no expression of a proposed weapon. He submits that Mr La Mont was inclined to “vent” about certain topics, variously using exaggeration, hyperbole, sarcasm and making “tongue in cheek” comments which are appropriately categorised as “exaggerated bluster”.4
(c) The Twitter comments which post-date the murder do not evidence any intention to do harm, but are merely negative comments about the deceased in the same vein as Mr La Mont’s earlier comments.
(d)The Twitter comments which express general antipathy towards Mr La Mont’s neighbours fall short of expressions which are in any way probative of a murderous intention. Mr Hoskin accepts that these comments might be more relevant if Mr La Mont were alleged to have approached the victims himself with the intention of stabbing them. In
that scenario, evidence of hatred towards Mr La Mont’s neighbours might provide evidence regarding motive. However, Mr Hoskin submits that evidence of general antipathy is less relevant given that the victims initiated contact with Mr La Mont.
(e) The Twitter evidence does not establish Mr La Mont’s state of mind on the night of the incident and cannot establish his state of mind in circumstances where he was confronted by the victims whilst alone in the streets at night.
[16] Mr Hoskin submits that the admission of the Twitter evidence would create a high risk of unfair prejudice to Mr La Mont. The jury are likely to view Mr La Mont as a person holding stereotypical prejudiced and racist views and will therefore view Mr La Mont extremely unfavourably.
[17] Mr Hoskin further contends that any probative value is outweighed by the risk that the admission of the Twitter evidence will needlessly prolong the proceedings. He contends that it will then be necessary to traverse in detail many of the other posts made on social media by Mr La Mont, to put the Twitter evidence in proper context. It will also be necessary to traverse in detail previous incidents involving the neighbours so that the jury can properly understand the difficulties faced by Mr La Mont.
[18] Mr Hoskins submits that the Twitter evidence does not meet the threshold for the admission of propensity evidence under s 43, since any probative value is outweighed by the risk of unfair prejudice to Mr La Mont.
Evidence of collecting knives and other weapons
[19] Mr Hoskin argues that there is no substantive or probative link between the weapons evidence and the critical issues at trial regarding intention and self-defence. He notes that Mr La Mont does not dispute that he possessed the knife used in the course of the homicide and therefore the collection/possession of other offensive weapons is not relevant. Further, Mr Hoskin says, the Crown submission that Mr La Mont’s selection of a small knife indicates murderous intent is illogical. First, there is
no evidence to properly infer that Mr La Mont knew he would be confronted by the victims when he left his home that evening. Secondly, the selection of a small knife could equally indicate a desire to avoid confrontation, rather than aggressively walking the streets carrying a large sword, for example. Finally, if the Crown wishes to pursue that line of reasoning then, in any case, it can rely upon the fact that Mr La Mont chose a small flick knife instead of a larger kitchen knife.
[20] Mr Hoskin submits that the admission of the weapons evidence would have an unfairly prejudicial effect upon Mr La Mont’s defence. The jury would wrongly reason that Mr La Mont was a strange and dangerous person who is interested in and collects dangerous weapons, and therefore is more likely to have had murderous intent.
[21] On that basis, Mr Hoskin submits that the evidence is inadmissible under s 8 of the Evidence Act and does not meet the threshold for admission as propensity evidence under s 43.
Should the Twitter evidence be admitted?
[22] The Crown variously seeks to adduce the Twitter evidence under ss 7 and 40 of the Evidence Act for the common purpose of proving Mr La Mont’s state of mind. The analysis under s 7 looks at the relevance of the proposed evidence as direct proof that at the time of the alleged offending Mr La Mont had a particular state of mind: namely, a murderous intent to kill the victim and the intent to seriously harm the complainant.5 The analysis under s 40 looks at whether the evidence proves that Mr La Mont has these states of mind to the extent that it reveals a propensity on his part think in this way. As was recognised in R v Tainui “a person’s propensity is a particular state of mind or conduct which is already in existence at the date of the offending.”6
Once this propensity is proved the Crown would then rely upon it to prove inferentially that Mr La Mont had that particular state of mind at the time of the alleged offending.
[23] Thus, evidence admitted under s 7 has a particular specificity as it is directly relevant to the specific occasion when the offending occurred, whereas evidence
5 In this judgment I shall use the term “murderous intent” as a shorthand term for the criminal intent required to prove each of the charges.
6 R v Tainui [2008] NZCA 119 at [54].
admitted under s 40 has a more general character that is then applied inferentially to the particular occasion of the offending.
[24] I shall consider the evidence first in terms of its admissibility under ss 7 and 8 of the Evidence Act. Evidence that is not admissible under s 7 will then be considered in terms of whether, in terms of s 40 of the Evidence Act, it tends to show “a propensity by the defendant to act towards or think about the victim in a particular way”.7
Section 7 analysis
[25] The incident occurred on 2 December 2015. There are tweets on the night of
1 December 2015 into the early hours of 2 December 2015 which the Crown seeks to adduce as direct evidence of murderous intent. These tweets are:
1 December 2015 8.00 pm – sounds like mongrel shitfucks next door are having another mid week party, yippee.
1/2 December 2015 – can even hear a tattoo gun going, presumably they’re drawing dicks on each other’s faces.
2 December 2015 – fucktards next door are still partying and guffawing outside.
[26] The above tweets reflect contempt for and dislike of the neighbours. They also can be seen to reveal a growing anger on the part of Mr La Mont towards the neighbours. This anger, which is close in time and leads up to the incident, is directly relevant to his state of mind and whether he had formed a murderous intent. I consider, therefore, that the tweets are direct evidence that goes to prove a state of mind that was either the prelude to the formation of a murderous intent at the time of the incident, or demonstrative of the presence of such intent.
[27] The Crown also seeks to adduce evidence of tweets on 28 November 2015 that read as follows:
Some sort of disgusting sewage overflow happening next door. drunk trashy women behaving and driving erratically with a little kid present.
Can’t really report “drunk trash being obnoxious and driving kid around” to crimestoppers though.
But hey, keep an eye out for a Silver Nissan Wingroad station wagon, HGC57, and report anything weird.
Together we can clean this mongrel trash off our streets.
[28] The only tweet from 28 November 2015 that could be read as suggesting proposed harm to the neighbours is the final tweet referring to cleaning “mongrel trash off our streets.” However, that tweet when read in the context of the other tweets appears more clearly to be a reference to stopping the “drunk trash” driving around. In the context of all the tweets that were made on 28 November 2015 the final tweet relating to removing mongrel trash off the street is, from the perspective of the Crown’s case, at best ambiguous in terms of what it reveals about Mr La Mont’s state of mind. Further, the tweets are directed at drunk women and their neglect of their children rather than at male persons who are perceived to merit harm.
[29] I do not see the tweets of 28 November 2015 as being directly relevant to proof of Mr La Mont having a murderous intent on 2 December 2015. They are too general and unfocussed.8
[30] There are two tweets on 19 May 2015 that suggest that an intent of some sort to harm the neighbours. These tweets are:
Anyone coming over our fence had better watch their step now, someone’s left a plank with a bunch of nails sticking out of it on the ground.
I’d hate for someone to stand on it in the process of trespassing on our property.
[31] The tweets on 19 May 2015 reveal anger on the part of Mr La Mont towards the neighbours whom, at the very least, he feared might trespass on the property where he lived. It reveals an intention to discourage such trespassing and to hurt anyone who trespassed. However the hurt in mind was simply the injury that would be suffered if someone were to step on nails. An intent to hurt in that way is, in my view, far removed from an intent to murder or to do serious bodily injury. Accordingly, I do not think the tweets on 19 May 2015 are direct evidence of murderous intent.
[32] There are four tweets on 11 February 2015 which read as follows:
Good to know the neighbours are traumatised by their upcoming eviction;
today they are having a raucous BBQ.
Anyone wanna call noise control regarding the neighbours for me so I don’t have to get telephone anxiety.
Not only am I going to have to call noise control with my telephone anxiety, it seems I’m going to have to pay to phone a landline number.
Can’t believe they removed the “provocation” defence for murder. Rarely have I been more provoked to go on a murderous rampage….
[33] The relevance of the three earlier tweets on 11 February 2015 is that they set the context for the final tweet which the Crown contends can be used as direct evidence to prove Mr La Mont had a murderous intent on 2 December 2015.
[34] The final tweet on 11 February 2015, if it is understood as being more than bluster, certainly shows that on that occasion Mr La Mont was sufficiently provoked
to contemplate murder, which never eventuated. Can it also amount to direct proof that he had a murderous intent on 2 December 2015?
[35] It is clear from the tweets on 1 December 2015 that the neighbours were having a party which annoyed Mr La Mont. On 11 February 2015 the partying noise made by the neighbours clearly, on one view of matters, drove Mr La Mont to the point where murder of the neighbours was contemplated. It proves that on occasion, the
neighbours’ partying noise could drive him to that state. This tweet must be set against a later context where he has killed and wounded persons from the same address shortly after tweeting about partying noise coming from that address. Against this background, the tweet on 11 February 2015 has a strong linkage with the incident on
2 December 2015; this tweet can be seen as proof that on one occasion Mr La Mont reached a point where he contemplated murder which, in my view, is relevant to proof of him having a murderous intent on the latter occasion. The three earlier tweets on
11 February 2015 place the final tweet in context. I consider, therefore, that the four tweets on 11 February 2015 do constitute relevant, direct proof of a murderous intent on 2 December 2015.
[36] Mr La Mont argues that the tweet is 10 months before the incident and that it reveals Mr La Mont’s feelings rather than an intent to carry out the action. He describes it as exaggerated bluster. However, in R v Gosnell, Whata J ruled admissible statements of the defendant that were made “well before” the killing of the victim that provided strong linkages between the prior statements, the circumstances of the alleged murder and subsequent disposal of the deceased’s body.9 This ruling was approved on appeal.10 Thus, I do not see the 11 month time gap between the subject tweet and the incident to be determinative of the tweet’s admissibility. The tweet is relevant and probative of the Crown’s case as it reveals that the neighbours’ noisy partying had on one occasion caused Mr La Mont to express a desire to “go on a murderous rampage.” The Crown’s case is that this is the very thing he did on 2
December 2015; when on the occasion of the incident Mr La Mont’s rage and antipathy to those same neighbours11 grew to a level where he went out armed with a concealed knife intending to confront them, and to use the knife on whoever he confronted by murdering or seriously harming that person. When seen in this way the
11 February 2015 tweets have probative value regarding Mr La Mont’s state of mind on 2 December 2015, and his motive for striking the victim and the complainant with
the knife.
9 R v Gosnell [2013] NZHC 259 at [12].
10 Gosnell v R [2014] NZCA 217, 27 CRNZ 163 at [29], [31], [33] and [45].
11 Included within this group is anyone who might be at the neighbours’ address who was partying with them.
[37] I accept the evidence is prejudicial but it is not unfairly prejudicial. Further its prejudicial effect is outweighed by its probative value.
[38] Then on 13 June 2014 Mr La Mont made two tweets:
The old bloke out the back has been mulching every twig he can find all morning. The noise is welcome relief from the other neighbours.
Of course, if they piss me off too much today I’ll probably just borrow the old chap’s mulcher and turn them all into fertiliser.
[39] On 12 July 2014 Mr La Mont made one tweet:
What’s next, DJ neighbour? Is it the sound of you dying at the hands of an axe- wielding madman? Boy I hope so!
[40] The Crown wants to adduce these tweets as direct evidence of murderous intent on 2 December 2015. I consider these tweets are too general to prove murderous intent on 2 December 2015. There is no direct linkage with what occurred on 2 December
2015. The tweets show that at the time he made them Mr La Mont was upset not only with noise from his partying neighbours but on the second occasion he was also upset with noise made by another neighbour who was using a mulcher at the time of the tweet. Mr La Mont saying in relation to the first tweet that he hoped an axe-wielding madman would kill his neighbour and in relation to the second tweets, that he would borrow the mulcher and turn “them all into fertiliser” is, in my view, nothing but general bluster and exaggerated complaint by him. In essence, with the tweets on 13
June 2014 he is saying he would like to throw all the noise makers in his immediate vicinity, the old man and the partying neighbours into the mulcher. With the tweet on
12 July 2014 he is expressing his frustration and anger at the noise made by his neighbour, which Mr La Mont wants stopped. The circumstances described in those tweets do not marry with the use of a concealed knife, and the way it was allegedly applied on 2 December 2015. Further it is clear from the collection of weapons Mr La Mont had in his possession that he possessed a battle axe, therefore, he had the means available to him to carry out the wish expressed in the tweet of 12 July 2014,
but he did not use those means. Whilst the expression in the tweets does not reflect well on Mr La Mont, they are in the nature of exaggerated bluster and someone venting his displeasure.
[41] In R v Roigard, general statements expressing interest in killing other persons were not admissible to prove murderous intent in relation to a “specific purposeful killing in different circumstances from those discussed in the subject statements.12 The same can be said for these tweets. Thus, they do not demonstrate a murderous intent to kill or to injure in the way that occurred on 2 December 2015. Accordingly, they have no probative value when it comes to proof of murderous intent relevant to the incident on 2 December 2015.
[42] I have carefully considered as direct evidence all the other tweets the Crown seeks to adduce. None of the tweets involve statements of doing harm to anyone, let alone the neighbours from the address connected to the victim and the complainant. They do reveal contempt, dislike and distaste for those neighbours, and the comments are expressed in a most disparaging way. However, in my view expressions of that type without more cannot in themselves amount to direct evidence of murderous intent. In Rei v R the majority observed that “evidence cannot be so abstract that it is impossible to evaluate its relevance to the issues in the case.”13 Whilst this was said in relation to propensity evidence, I consider it is also applicable when it comes to direct proof of a defendant’s state of mind. Thus, I find the remainder of the tweets have no probative value as direct evidence to prove the existence of murderous intent on the occasion of the incident.14
[43] There are also tweets that were posted after the killing of the victim and injuring of the complainant. The Crown contends that these tweets display clear animosity, especially towards the deceased, and so they are relevant to proof of
murderous intent. These tweets are:
12 Roigard v R, above n 4, at [29].
13 Rei v R [2012] NZCA 398, [2012] 25 CRNZ 790 at [22].
14 They will be considered later in terms of whether they qualify as propensity evidence relevant to
Mr La Mont’s state of mind on 2 December 2015.
2 December 2015 – I knew these neighbours were fucked. Emmanuella de
Ruiter @elladeruiter. Man dead after stabbing in Mt Albert nzh.tw/11554935.
2 December 2015 – There’s reporters on our street.
2 December 2015 – This situation on my street is very unpleasant and strangely surreal. Looking forward to getting my statement out of the way.
4 December 2015 – the “victim” ladies and gentlemen scontent.fald1-
1/fna.fbodn.net/hphotos-xfa1/t…
4 December 2015 – start ‘em young nzherald.co.nz/northern-advoc…
[44] The tweets display a callous disregard for the victim. They are part of the direct evidence that reveals the state of Mr La Mont’s mind after the incident, which in turn can be relied upon inferentially as circumstantial evidence that goes to prove the existence of murderous intent insofar as these tweets reveal the lack of any remorse or concern for the victim. The Crown will be required to exclude self-defence. The tweets after the incident go some way in my view to proving that Mr La Mont, who has admitted the killing, felt no regret or concern about it shortly afterwards, which is consistent with him having carried out the killing with murderous intent. Accordingly, I find them relevant under s 7 of the Evidence Act.
Section 40 analysis
[45] Propensity evidence includes evidence which tends to show a propensity by the defendant to “think about the victim in a particular way”.15 In the present case there is no evidence to suggest that Mr La Mont knew either the victim or the complainant. The evidence the Crown relies on points to Mr La Mont encountering them and after some exchange between them Mr La Mont striking with a knife against the victim first and the complainant second. The Crown case is that the motive behind this seemingly unprovoked attack was a burning and almost pathological sense of rage
and grievance that had grown within Mr La Mont towards the actual neighbours and
15 Mahomed v R, above n 2, at [61].
anyone who associated with them and participated in their noisy partying lifestyle, such that on the occasion of the incident this state of mind developed into a murderous intent to harm anyone from the neighbours address who Mr La Mont encountered.
[46] Propensity evidence of a particular state of mind can arise from only a few expressions of that the alleged propensity. For example, in R v Martin, a defendant’s single expression of frustration with his young stepchild was admitted as propensity evidence relevant to proving he was responsible for injuring the child.16
[47] Unlike propensity evidence relevant to conduct, propensity evidence relevant to proving a particular state of mind need not be subject to analysis pursuant to s 43 of the Evidence Act. In Martin, the s 43 criteria were described as being of “limited application” because they were directed at a different type of propensity evidence.17
[48] Further, in Martin state of mind propensity evidence was seen to have “important explanatory value” because it tends to establish the defendants “hostility towards the victim and a motive for him to harm the victim.18 In this way it makes the alleged offence against the victim “more explicable than would otherwise be the case”.19
[49] I have used the exposition in Martin of the principles underlying state of mind propensity evidence as a measure to determine the admissibility under s 40 of the tweets. I will exclude from the consideration the tweets I have already considered to be admissible under s 7 of the Evidence Act.
[50] The balance of the tweets can be grouped as follows:
(a) Tweets expressing a wish that someone in the neighbouring vicinity would die;
(b) Tweets expressing derogatory remarks about the neighbours’ children;
16 Martin v R [2013] NZCA 486. In Martin the propensity evidence was being relied upon to prove the identity of the child’s assailant.
17 At [22].
18 At [23].
19 At [23].
(c) Tweets expressing derogatory remarks about the neighbours dogs; and
(d)Tweets expressing derogatory remarks about the neighbours’ general behaviour and in particular the noise they make, especially when partying.
[51] The tweets expressing a wish that someone in the neighbouring vicinity would die are:
The tweet of 13 June 2014 about mulching the noisy neighbours and turning them into fertiliser
19 June 2014 - Neighbour is I think chopping wood, but it sounds like they’re banging something against the wall of our house while grunting. Please die.
12 July 2014 - What’s next, DJ Neighbour? Is it the sound of you dying at the hands of an axe-wielding madman? Boy I hope so!
25 July 2014 - Neighbourhood child (didn’t know we had any?) playing tennis in the middle of the street. Hope they die.
29 July 2014 - Dear fuckwad two streets over revving his car all day; you better hope that car kills you before I do.
20 May 2015 - Surely it’s time to eradicate this invasive species.
[52] Not all tweets are directed at the next door neighbours who are connected with the incident on 2 December 2015. The person revving his car on 29 July 2014 is two streets over. The neighbour mulching twigs lives at a different address to the neighbours connected with the incident. The neighbourhood child referred to in the
25 July 2014 tweet is not expressly identified with the neighbours connected with the incident. The tweets are derogatory and insulting of the neighbours in the near vicinity of Mr La Mont. They reveal he had no liking or respect for persons in the neighbouring vicinity. But I do not consider that they reveal a particular state of mind relevant to whether Mr La Mont formed the intent to actually murder a person associated with
one particular neighbouring dwelling. The anger, contempt and desire that they subjects should die that is revealed in these tweets is unfocused and is too general; moreover it does not involve ideas of Mr La Mont doing the killing. Accordingly they are not relevant to proof of Mr La Mont having a particular state of mind that is relevant to proof of murderous intent at the time of the incident on 2 December 2015.
[53] It follows that I find these tweets are not admissible as propensity evidence to prove the state of mind of Mr La Mont when he killed the victim and seriously injured the complainant on 2 December 2015.
[54] The tweets expressing derogatory remarks about the neighbours’ children are:
17 June 2015 - Neighbours are doing a great job of parenting their two infant children, who are running around outside at 2100. Only 10 C out there, too.
20 June 2015 - Pretty sure the woman at my neighbours’ is fried out of her tree on something. Also there is a delinquent 12yo girl roaming around the place.
11 July 2015 - Feral neighbours are inside their house smoking weed, while their infant child is outside playing with broken glass.
12 July 2015 - There are also dogs and infant children roaming about their yard. I think they have some sort of “music” playing too.
[55] These tweets express Mr La Mont’s contempt and dislike of his neighbours. They are general in nature and do not suggest any wish on his part to harm the neighbours. I do not consider them to be relevant to proof of him having a particular state of mind relevant to proof of murderous intent. These tweets are not admissible as propensity evidence to prove murderous intent.
[56] There are numerous tweets expressing derogatory remarks about the neighbours dogs. They are all of a similar flavour. I have chosen certain examples:
20 May 2014 - Just arrived home to find the neighbour’s Maltese in the middle of the street with half of a boiled sheep’s head.
17 June 2014 - Idiot neighbours’ idiot friend’s unneutered pitbulls are having a loud barking match with the next neighbour’s dog and I am getting angry.
25 May 2015 - Neighbours mistreated, neglected dog escapes again; neighbour catches him and says “you brought this on yourself, bro”.
19 August 2015 - Contacted animal control re neighbours’ roaming pitbull again so now he’s chained up outside, yelping for attention.
19 August 2015 - With the occasional thing thrown at him and being told to shut up.
19 August 2015 - Just submitted another report to animal management re neighbour’s dog, which is now permanently chained up outside and whining constantly.
26 August 2014 - Neighbour’s friend/new flatmate(?) has ANOTHER non- desexed pitbull, a female, which spends its entire life barking at every single thing.
26 August 2015 - Her rancid crack-maggot owner doesn’t do anything about it, of course.
31 August 2015 - Neighbour’s dog is still constantly barking. Tried walking up to the fence but she ran away, barking more. Poor thing is a nervous wreck.
3 September 2015 - Just had a crazy dog fight happen nextdoor. Nervous barking dog and a large female pitbull were viciously fighting, inseparable.
3 September 2015 - tried to report it to animal management but was told it was apparently an issue for the RSPCA. Wish I’d just emailed again. Useless.
[57] These tweets are much the same as the tweets in the preceding group. They reveal anger and contempt for the persons in the neighbourhood and in particular for the next door neighbours. But that is as far as the tweets go. I do not consider them
relevant to prove a particular state of mind relevant to the existence of murderous intent at the time of the incident.
[58] I have chosen a sample of the tweets expressing derogatory remarks about the neighbours’ general behaviour and in particular the noise they make, especially when partying:
15 April 2014 - Heard someone trying to play the flute at 0630 AM, and thought “surely even my neighbours aren’t that retarded” … turns out they are.
15 April 2014 - These are the same people who karaoke all night, have constant visits from friends with loud cars and always slam their gate.
15 April 2014 - Basically, the most irritating, obnoxious people in the world.
13 June 2014 – A small truck piloted by a feral, beardy Cousin ltt in a baseball hat has just pulled into our favourite neighbour’s place.
13 June 2014 – They’re now swarming around it like verminous ants, harvesting the junk on the back and arranging it in their yard.
13 June 2014 – I wish we had better neighbours, or at least a decent fence/hedge thing to shield us from their obnoxiousness.
6 July 2014 – Old wankers across the road smoking and smashing back beers like its Saturday night.
6 July 2014 – Stupid old pricks across the road now have loud music playing to accompany their drinking and smoking.
6 July 2014 – It’s like ‘80s Samoan R&B.
16 July 2014 – The worst part about days with nice weather is the neighbours emerge from their house and start hollering at each other across the road.
12 May 2015 – Why are people like this allowed to breed?
12 July 2015 – Neighbours have been smoking weed, drinking piss and hee- hawing since 1430 today. My tax dollars hard at work there.
21 August 2015 – Fucking neighbours are listening to some sort of horrific, obnoxious trance shit through a car stereo.
21 September 2015 – Neighbours are presumably listening to a subwoofer, because that’s sure as hell all I can hear from here.
20 October 2015 – Interesting that my unemployed criminal neighbour can afford to drive so many different fancy cars from week to week.
15 November 2015 – Judging by the conversations at least some of them are somehow associated with the mongrel mob, so that’s lovely.
[59] In addition to the above tweets, there are the tweets on 28 November 2015 which I have already referred to in the context of considering them for admission under s 7 of the Evidence Act.
[60] The overall tenor of these tweets is similar to the tweets relating to the neighbours’ children and dogs. They reveal contempt, anger and distaste for the persons who live around Mr La Mont. These negative feelings are not restricted to the neighbouring household connected with the incident. They demonstrate hostility to other persons but in my view they are not sufficiently specific to prove a particular state of mind relevant to the existence of murderous intent in relation to the victim. Accordingly, I consider they are inadmissible as propensity evidence for the purpose of proving murderous intent.
[61] I have found that none of the tweets can be admitted as propensity evidence to prove a particular state of mind, namely murderous intent. In Martin, the defendant’s expression of frustration about the difficulty in looking after his stepchild was admitted as propensity evidence relevant to motive. In that case the identity of the perpetrator was in issue. In the present case Mr La Mont has admitted killing the
victim and wounding the complainant. It remains for the Crown to exclude self- defence and to prove murderous intent. The victim and the complainant were not known to Mr La Mont. They did not live at the next door address, they were visitors to that property. The general expressions of hostility, anger and contempt for persons in the vicinity of Mr La Mont’s address seem to me to be more like the statements in Roigard than the statements in Derrick-Hardie or Drever v R20 which have a greater specificity and linkage to the actual offence. R v Watson is an example where, in an apparently motiveless attack, general statements about killing people were admitted.21
However, the propensity evidence tweets in the present case do not go so far. At most some tweets express the wish to see others dead but they do not say that Mr La Mont wants to be responsible for the deaths. Thus, looked at overall I find these tweets to be of marginal relevance, and low probative value. On the other hand, the negative views and the manner of expression make the tweets highly prejudicial.
Should the weapons evidence be admitted?
[62] It is not disputed that Mr La Mont carried a knife with him on the evening of the attack. Mr La Mont further says that he always carries a knife with him for safety, self-defence and anxiety reasons (although it is unclear at this stage whether that evidence will be adduced at trial).
[63] Mr La Mont’s weapons collection includes a long ceremonial knife, a sword, a replica hand gun, a battle axe, a home-made taser and various blades. At the hearing the Crown confined the weapons for admission at trial to the knife collection, which appears to be the long ceremonial knife and sword.
[64] The Crown wants to refer to Mr La Mont’s collection of weapons for the purpose of proving that he had larger, more obvious weapons available to him but he deliberately chose a knife that could be readily concealed so that anyone he attacked would be less likely to realise he was armed with a knife. This fits with the Crown’s view that Mr La Mont has carried out a premeditated killing in circumstances where
he either intended to kill or intended to cause grievous bodily harm and was reckless
20 Drever v R [2016] NZCA 249.
21 R v Watson [2003] NZAR 193 (CA).
as to whether death ensued. The Crown also argues that the possession of a knife collection goes to prove Mr La Mont knows how to use knives.
[65] Possession of knives can be consistent with knowledge of how to use them, but on the other hand many persons collect weapons with little if any knowledge of how to use them. The idea the Crown advances here is purely speculative. The proposed evidence has no probative value for proof of this knowledge. On the other hand there is some prejudicial value, but it is not high.
[66] When it comes to proof of a particular intent to take a concealed weapon, the defence argument is that the rationale advanced by the Crown could just as easily be applied in relation to other household knives such as carving knives. They are bigger and so more obvious to carry. It is not clear to me if there is evidence that there were large carving knives in Mr La Mont’s household. If there were, or if he were prepared to admit there were carving knives or other large knives in the household I could then see no reason for admitting the evidence of the knife collection. On this approach it would add nothing and so it would fall to be excluded under s 8(2) of the Evidence Act. Further the knife collection has a prejudicial value, which while not high nonetheless is sufficient to outweigh the probative value of this evidence.
[67] I can understand that the Crown wants to make the point Mr La Mont deliberately chose a small knife so he could conceal it, and that it is easier to prove this if the Crown can show other larger knives were available to Mr La Mont. But I see no reason why this has to be done by placing the knife collection before the jury. There is little probative value in the approach the Crown wants to take and what there is will be outweighed by the prejudicial value.
[68] I am satisfied, therefore, that the knife collection should not be admitted into evidence for either of the reasons advanced by the Crown.
Disclosure under s 30 of the Criminal Procedure Act 2011
[69] At the hearing a number of the disputed items for which disclosure was sought were resolved as between counsel. The remaining item for which direction from the
Court is sought relates to disclosure of certain police intercepts of telephone communications from the household connected with the victim and the complainant.
[70] The intercepted communications include discussions between members of this household and other persons regarding how the victim was attacked. The Crown is concerned that disclosing the intercepts will breach the privacy interests of the persons engaged in the conversations. On the other hand the Crown accepts that fair trial rights trump privacy concerns.
[71] I have considered the relevant intercepts which the Crown has highlighted in yellow. I am satisfied that none of the other intercepts are relevant. The highlighted intercepts are hearsay accounts of what happened. The persons involved in the discussions do not appear to have witnessed the incident at first hand. However, the discussions are in a number of respects similar to the account given to the police by the complainant. Thus, there is evidence to confirm that they are to some extent reliable. Where the discussions differ from the complainant’s evidence, this could provide information that the defence could use to prepare its case. For example it might choose to use the information as a foundation to cross-examine the complainant. The areas of consistency with the complainant’s evidence might lead the defence to choose not to challenge some of his evidence for fear of more damning evidence coming out. The information might prompt further investigations. Whilst the intercepted communications are not admissible as evidence they provide relevant information that I consider the defence is entitled to know, as it will only enhance defence counsel’s ability to offer an effective defence.
[72] It follows that the yellow-highlighted intercepted communications are to be made available to the defence. The Crown should file a schedule of those communications within five days of delivery of this judgment. Once I have satisfied myself the schedule contains all relevant intercepted communications I will direct service of the schedule on the defence.
Result
[73] I direct that the tweets set out at [25], [32] and [43] are admissible pursuant to s 7 of the Evidence Act. The remainder of the Twitter evidence is inadmissible. The weapons evidence is also inadmissible.
[74] The yellow-highlighted intercepted communications are to be made available to the defence as set out at [72] above.
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