R v Lologa HC Auckland CRI 2005-092-7703
[2007] NZHC 2147
•19 July 2007
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2005-092-7703
THE QUEEN
v
TROY LOLOGA, STEVEN LOLOGA AND ALBERT THOMPSON
Accused
Trial Commenced: 2 July 2007
Appearances: Mr H D M Lawrie and Mr J C Down for Crown
Mr M J Faleauto and Mr P Le'Au'Anae for T Lologa
Mr P L Borich and Ms C H Bennett for S Lologa
Mr F P Hogan for A Thompson
Mr S Tait for witness
Date of Ruling: 19 July 2007
(ORAL) RULING OF LANG J
[on application by witness to be excused from giving evidence]
Solicitors:
Meredith Connell, Office of the Crown Solicitor, Auckland
Mr J Faleauto, Barrister, Auckland
Mr P Le’Au’Anae, Barrister, AucklandMr P Borich, Barrister, Auckland
Ms C H Bennett, Barrister, Auckland
Mr F Hogan, Barrister, AucklandMr S Tait, Barrister, Auckland
R V T LOLOGA, S LOLOGA AND THOMPSON HC AK CRI 2005-092-7703 [19 July 2007]
[1] The three accused in this trial are jointly charged with murder. The charge follows an incident on the evening of 28 June 2005 in which another man was beaten and stabbed to death in the forecourt of a service station in South Auckland.
[2] The Crown proposes to call as one of its witnesses the partner of one of the accused. That witness does not wish to give evidence against her partner and contends that she is in a position to offer a just excuse for her refusal to do so.
[3] In broad terms the evidence that the Crown proposes to adduce from the witness relates to admissions allegedly made by her partner to the witness during the days following the incident. During these discussions the accused is said to have outlined his part in the incident and to have described the sequence of events that gave rise to the death of the deceased.
The grounds advanced
[4] In evidence before me the witness set out the grounds upon which she contends that she has just cause for not giving evidence against her partner.
[5] She is now 19 years of age and has been involved in a stable relationship with the accused for approximately two and a half years. They have two children, one boy aged 19 months and a girl of 8 months. The accused is said to be a strong and supportive father who plays a full role in the upbringing of the children. The witness said in evidence that she and the accused propose to leave New Zealand once the trial has concluded and to begin a new life in Australia, where members of the extended family of the accused live.
[6] It was clear from her evidence that the principal concern that the witness held related to the consequences to the relationship that would follow in the event that she was required to give evidence against her partner.
Relevant principles
[7] The relevant section of the Crimes Act 1961 is s 352, which provides:
352 Refusal of witness to give evidence
(1) If any witness, without offering any just excuse, refuses to give evidence when required, or refuses to be sworn, or having been sworn refuses to answer such questions concerning the charge as are put to him, the Court may order that, unless he sooner consents to give evidence or to be sworn or to answer the questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant for his arrest and detention in accordance with the order.
(2) If the person so detained, on being brought up again at the trial, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him, the Court, if it thinks fit, may again direct that the witness be detained in custody for the like period, and so again from time to time until he consents to give evidence or to be sworn or to answer as aforesaid.
(3) Nothing in this section limits or affects any power or authority of the
Court to punish any witness for contempt of Court.
[8] There is no authoritative decision providing a definition of what constitutes
“just excuse” in terms of s 352.
[9] Counsel for the witness relied primarily on the approach taken by Williamson J in R v Burgess (HC Dunedin, T 16/91, 18 February 1992). In that case the witness was living with the accused and was also the victim of the crime with which he had been charged. She sought to be excused from giving evidence on the basis that it would adversely affect her family’s future. By family she included herself, the accused, their two year old son, and the child that she was expecting in three months time. The witness was just 20 years of age at the time. Moreover, her evidence was to the effect that the accused had benefited from counselling and treatment during the lengthy period that had elapsed since the alleged offending.
[10] Williamson J noted that the Act did not give any guidance to what is meant by just excuse. In concluding that a just excuse had in fact been offered he said:
Viewed in the context of overall justice or fairness, from her personal viewpoint I do not consider that the Court can exclude her excuse as being other than a just one. Such a determination must be made, however, not only on the basis of the person offering the excuse but also in the context of an
objective assessment. It could well be argued that the task of the law is to consider the circumstances of the community as a whole and that persons who commit offences of the nature alleged in this case are dangerous and consequently that an excuse not to give evidence in relation to such activities could hardly ever be a just one. The decision though must be made in the context of the particular allegations, the overall circumstances, the relationship between the persons and the circumstances of the witness at the time when the refusal to give evidence is made.
[11] The issue of “just excuse” was considered again, albeit in a different context, by the Court of Appeal in Controller and Auditor-General v Sir Ronald Davison [1996] 2 NZLR 278. In that case the Court was considering sections in the Commissions of Inquiry Amendment Act 1995 that empowered a Commissioner to impose sanctions, including detention, on witnesses who, without offering any just excuse, refused to answer questions or produce documents. The “just excuse” offered by the applicants in that case was based on several grounds including reliance on the doctrine of sovereign immunity and exposure to the risks of prosecution in another jurisdiction (the Cook Islands) for failure to comply with the secrecy laws of that jurisdiction. In other words, they claimed protection against self-incrimination.
[12] Richardson J considered (at 330) that the Commissioner needed to take into account several considerations. These included:
a) an assessment by the commission of the vital national interests of New Zealand in the inquiry, including New Zealand’s international relationships with the Cook Islands and other states;
b) the importance to the commission’s inquiry of the information sought;
c) any alternative means of accessing that information from other sources;
d)the nationality and ordinary residence of the prospective witnesses and the location of the document;
e) the nature and extent of the witnesses’ commercial and personal connections with the Cook Islands; and
f) the nature and extent of the risk to the witnesses and any other immediately affected that requiring testimony would impose and personal consequences for them.
[13] The Court of Appeal therefore took into account a range of competing considerations relating to the adverse affects on the applicants in the event that they were required to give evidence, and the adverse affect on the Commission if that evidence was not given.
[14] The decision in the Controller and Auditor-General case was affirmed by the Privy Council in Brannigan v Sir Ronald Davison [1997] 1 NZLR 140. Their Lordships considered that the statutory exceptions of “sufficient cause” and “just excuse” provided ample scope for all the circumstances to be taken into account. It said (at 147):
Inherent in these two expressions, which are synonymous in this context, is the concept of weighing all the consequences of the refusal to give evidence: the adverse consequences to the enquiry if the questions are not answered, and the adverse consequences to the witness if he is compelled to answer.
Decision
[15] In the present case I consider that I must undertake a similar exercise in which I weigh the adverse consequences to the witness if she is compelled to give evidence against the adverse consequences for the administration of justice if she is not required to do so. I begin by considering the potential adverse consequences to the witness.
[16] First, there is the obvious fact that the witness will feel that she is betraying her partner of some two and a half years duration by giving evidence that is potentially adverse to his interests. In addition, she is obviously concerned about the effect that that will have on the future of their relationship and the future for their young family. That, however, is a situation that must often confront a witness who is called to give evidence adverse to a close relative, or close friend, or acquaintance. The law recognises that such persons are compellable and in the ordinary course of
events they are required to give evidence notwithstanding the fact that it may have obvious adverse consequences for the future of the relationship in question.
[17] Next, there is the fact that the witness must appreciate that the potential consequences for her partner are grave. He faces a very serious charge and her evidence could potentially play a significant part in enabling the prosecution to secure a conviction against him. Again, that is a situation that, whilst unfortunate for the witness, is not particularly uncommon in cases of this sort. The fact that even spousal immunity is to be abolished as a result of the passage of the Evidence Act
2006 demonstrates that the legislature has taken the view that persons who are in a close personal relationship to an accused person must nevertheless in the ordinary course of events fulfil their duty to the community to give evidence against such persons should that be required.
[18] Those, as I apprehend it, are the adverse consequences that are likely to follow in the event that the witness is required to give evidence against the accused.
[19] I begin my consideration of the adverse consequences to the administration of criminal justice by noting the seriousness of the charge. The accused faces a charge of murder. That is one of the most serious charges in our Crimes Act, and the community has an obvious interest in ensuring that all relevant evidence that may be available in relation to such a charge is placed before the tribunal of fact that hears it.
[20] Secondly, I need to have regard to the importance of the evidence of the witness to the prosecution case. As I said, her evidence will relate to discussions that she had with the accused shortly after the incident that has given rise to the charge.
[21] In the course of discussions between the witness and the accused the accused confirmed that he was aware that one of his co-accused had begun to chase the deceased with a knife. The brief of evidence that has been prepared for the witness goes on to say that the accused then grabbed a broom and that he and his two co- accused chased the deceased until they caught him. At that point one of his co- accused began stabbing the deceased whilst he [the partner] began “smacking” the deceased with a broom.
[22] The evidence of the witness is, of course, admissible only against her partner and not against either of his two co-accused. Nevertheless, her evidence supplies an important link in the Crown case so far as her partner is concerned. The Crown has opened its case against her partner on two bases. First, it alleged that he was a principal because he administered blows that were a substantial and operating cause of the death of the deceased. Alternatively, however, the Crown opened its case on the basis that the accused was a party to the commission of the offence by the person who stabbed the deceased. Although the Crown opened its case on a broad basis, it contended that the two accused who did not stab the deceased, but who were present at the time that the stabbing occurred, are criminally responsible because they assisted or encouraged the person who actually carried out the stabbing.
[23] In order to sheet home liability as a party to either murder or manslaughter it will be necessary for the Crown to prove beyond reasonable doubt that the party was aware of the existence of the knife and the likelihood that a co-accused would use it prior to the point at which the stabbing occurred: R v Hartley (CA154/06, 1 March
2007).
[24] On my reading of the evidence there is no other witness who can state that the accused knew of the existence of the knife prior to the point at which the stabbing occurred. The evidence is therefore of central importance to the Crown case based on its allegation that the accused was a party to the stabbing of the deceased.
[25] When I view those matters overall, I have concluded that the interests of justice require the evidence to be given. I do not consider that the matters that were put forward by the witness are sufficient to outweigh the adverse consequences that are likely to follow in the event that she does not give evidence. In fact, I formed the conclusion during the hearing that if I was to accept the material that she put forward as constituting a “just excuse”, I would potentially be opening up a very broad avenue for witnesses to seek to be excused from giving evidence in the future.
[26] I view the case as being very different in nature to the circumstances that arose in R v Burgess (supra). As I said, the witness in R v Burgess was herself the
victim of the offending. As such, she had a direct interest in the prosecution of the charge and her wishes obviously became relevant in considering whether or not she should be required to give evidence. In the present case the witness is not the victim of the offending. There is a public interest in ensuring that all relevant evidence relating to the incident that gave rise to the charge is before the jury. I consider that that interest outweighs the matters put forward by the witness and that the matters that she has raised do not constitute a “just excuse” for not giving evidence against her partner.
[27] My ruling is therefore she will need to give evidence when she is called as a witness by the Crown.
Lang J
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