R v Martin

[2023] NZHC 2167

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2022-016-1588

[2023] NZHC 2167

THE KING

v

LYNNE MAREE MARTIN

Hearing:	4 August 2023
Counsel:	S B Manning and C R Walker for Crown R M Adams for Defendant
Judgment:	14 August 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1]                 The defendant is facing charges of murder and arson. The trial is scheduled to commence in Gisborne on 6 November 2023. The offences are alleged to have occurred on 25 January 2013.

[2]                 The Crown has made two interlocutory applications: one in respect of hearsay evidence and the other in respect of propensity evidence.

The hearsay application

[3]                 The Crown has filed hearsay notices in respect of an oral statement made by Russell Allison (the deceased), and written statements made by witness Clarence Collier and potential witness Hine Ngatoro, both of whom are now deceased.

R v MARTIN [2023] NZHC 2167 [14 August 2023]

[4]                 In respect of the deceased, the Crown intends leading evidence of the oral statement made by him to his son, John Allison (John), as set out in the formal statement made by John at [262]–[276].

[5]                 In respect of the deceased witness Clarence Collier, the Crown intends leading the evidence of his two  written statements made to Police on  25 January 2013 and  1 February 2013.

[6]                 In respect of Hine Ngatoro, the Crown has filed a hearsay notice in respect of her written statement of 26 January 2013. The Crown does not seek admission of her statement and it does not consider the content to be reliable. The hearsay notice is filed on the basis that if the defendant seeks its admission into evidence, the Crown would not oppose that.

Legal principles

[7]                 A hearsay statement is admissible if the circumstances relating to the statement provide a reasonable assurance that the statement is reliable, and the maker of the statement is unavailable as a witness.1

[8]                 Counsel for the defendant does not oppose the admission of the hearsay statements of the deceased or Clarence Collier. Counsel reserves her position in relation to the statement of Ms Ngatoro as to whether it will be necessary to produce that document.

[9]                 I am satisfied that the criteria in ss 16–18 of the Evidence Act 2006 are met, and that all three statements are admissible.

[10]              The parties agree that the admissibility is subject to the ability of the trial Judge to provide a warning to the jury pursuant to s 122(2)(a) of the Evidence Act in relation to reliability.

1      Evidence Act 2006, s 18.

Propensity evidence

[11]              The Crown wishes to adduce two separate pieces of evidence on the basis that they are propensity evidence. The first is evidence of the defendant having previously committed two offences of maliciously damaging property by fire (an Australian equivalent to arson) relating to fires caused to two vehicles in Dubbo, Australia, to which the defendant pleaded guilty; and secondly, the defendant’s alleged encouragement of an undercover Police officer (Ms Tait) in 2020 to set fire to a house in Dunedin.

[12]The defendant opposes both applications.

Facts

[13]              The Australian offences were committed on 1 May 1999 and the defendant was convicted and sentenced on 25 May 2000. The relevant facts of the Australian offending were that the defendant had been in an on-again/off-again relationship with a Mr Stonestreet. The defendant, who was in an impecunious financial situation, had travelled from Orange to Dubbo (a distance of approximately 146 kms) expecting to receive a modest sum of cash and a car battery from Mr Stonestreet.

[14]              She became angry when he was not at his house, consumed some alcohol, returned to Mr Stonestreet’s house, vandalised two vehicles belonging to him by scratching them and then setting them on fire using petrol she had purchased as an accelerant.

[15]              The evidence relating to the Dunedin house fire was that between 2019 and 2021, an undercover Police officer (Ms Tait) was deployed for the purpose of seeking further evidence in relation to the house fire that is the subject of the arson charge in these proceedings. At the time the officer was deployed, no charges had been laid.

[16]              In 2020, the defendant encouraged Ms Tait to set fire to a house in Dunedin and provided her with detailed instructions on how to achieve that without getting caught.

[17]              The Crown case is that the defendant had formed a close relationship with  Ms Tait, whom she wanted to assist in resolving a relationship property issue; that she had met the person alleged to be Ms Tait’s former partner and had taken a strong dislike to him; that she had encouraged Ms Tait to burn the house owned by her and her former partner down for two purposes: firstly, to destroy some incriminating evidence; and secondly, to obtain an insurance pay-out.

[18]              The Crown contends that both of these instances have features common to the situation that existed at the time of the alleged arson in the present case, namely that the defendant resorted to committing or encouraging arson as an extreme response to relationship problems involving, in particular, financial difficulties. The Australian events also occurred after the consumption of alcohol.

[19]              The Crown submits that the relevant features of these incidents are that they involved a relationship problem, financial difficulty, anger, planning, and the use of fire as an extreme response.

[20]              Counsel also rely on the fact that arson is an inherently unusual type of offending and it is therefore highly relevant for the jury to know in assessing whether the defendant was responsible for the house fire in the present case, that the defendant had been willing to resort to that extreme and unusual method to respond to relationship problems both beforehand and subsequently.

[21]              The features of the current alleged offending which are said to be consistent with the matters which the Crown wishes to adduce as propensity evidence are:

(a)the defendant was under financial pressure, being an undischarged bankrupt and having just had to ask her employer for a loan of $400;

(b)the defendant had relationship issues with her father. She had not seen him in some two years. She alleged he had sexually abused her when she was young and she had tried to blackmail him to pay her money in respect of the alleged sexual abuse;

(c)the defendant had unsuccessfully tried to sell a boat that belonged to the deceased;

(d)the defendant had a telephone call to the deceased the day before the arson demanding payment of her inheritance and indicating she was coming over to forcibly remove a China cabinet and its contents;

(e)the defendant was angry at the deceased for not agreeing to her demands and ending the telephone call;

(f)the defendant had consumed a quantity of alcohol when driving from Tauranga to Te Karaka; and

(g)the defendant had attempted to create an alibi by telling various people she was in Auckland on the night the offences occurred.

[22]              Counsel for the defendant drew attention to the factual differences between the two incidents of propensity evidence and what is alleged in the present case. She described the Australian arson convictions as being an example of hot-blooded offending (meaning that they were spontaneous reactions in a moment of anger that did not involve significant pre-planning) with what is alleged in the present case being described as “cold-blooded” offending, being offending carried out over a period of time with careful thought and planning to achieve significant personal financial gain.

[23]              She submits that the Australian offending could be categorised as spiteful and not producing any financial gain, and that the only thing they establish is that the defendant had bad character. While acknowledging that the Australian offences involved arson, she submitted that not all arsons were equal and these were examples of very different types of arson.

[24]              Counsel pointed to the fact that there was a time delay of some 13 years between the date of the Australian convictions and the present incident, which reduced the relevance of the Australian convictions, and she said there was no evidence of a “general pattern” of offending by way of arson.

[25]              In relation to the Dunedin evidence, counsel acknowledged it was admissible to establish that the defendant had some knowledge as to how to commit arson, but said that the feature of emotional upset relied on by the Crown for similarity purposes was absent.

[26]              She rejected the proposition that the defendant had become emotionally invested in the life of Ms Tait and submitted that the defendant would gain nothing, in a financial sense, from her involvement.

The law

[27]Section 40(1)(a) of the Evidence Act provides that propensity evidence:

… means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved …

[28]              Section 40(3) provides that propensity evidence about a defendant in a criminal proceeding may be offered only in accordance with ss 41, 42 or 43.

[29]              Section 43(1) provides that the prosecution may only offer propensity evidence about a defendant in criminal proceedings if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

[30]              There is agreement that the issues in this case are firstly, whether the fire was arson; and secondly, the identity of the person who started the fire. There is no dispute that the evidence potentially has probative value in relation to these issues.

[31]              Section 43(3) lists the following matters that the Court may consider when assessing the probative value of propensity evidence:

(a)the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:

(b)the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried:

(c)the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried:

(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e)whether the allegation described in paragraph (d) may be the risk of collusion or suggestibility:

(f)the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried are unusual.

[32]              Section 43(4) provides that when assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters:

(a)whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and

(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Analysis

[33]              The first question for me to determine is whether the two sets of evidence fall within the definition of propensity evidence in that they show propensity to act in a particular way.

[34]              Given that the nature of the issues in dispute are whether the offence is arson and the identity of the arsonist, the fact that the defendant has two convictions for the Australian equivalent of arson is clearly probative.

[35]              As the Crown pointed out, the community of Te Karaka is a small one. There will be few potential suspects as a result. The pool of people who would stand to benefit financially from the deceased’s death is even smaller, essentially being the defendant and her brother. It is inevitable that the defendant will emphasise the fact that her brother benefitted substantially from the deceased’s will. The brother apparently has no significant convictions. The Crown say that makes it important for the jury to know what the relevant convictions of the defendant are.

[36]              I accept that the Australian convictions relate to a different type of arson. However, the most significant feature is that the defendant resorted to destroying property by fire. The fact that this occurred at a time when the defendant was under financial pressure and had been disappointed in not receiving some cash and a car battery, and was angry with someone with whom she had previously been in a domestic relationship, are also comparable features.

[37]              I am required to consider both the similarities and dissimilarities. I accept that there are differences in facts. I do not accept counsel’s categorisation of that offending being “hot-blooded” and the current matter being “cold-blooded”. There were elements of preparation in relation to the Australian offending in that the appellant had to go and purchase petrol which she used as an accelerant. Equally, there were elements of spontaneity with the present offending in that the appellant became upset after the telephone call with her father that had not produced the outcome that she wanted, and she acted promptly after that event.

[38]              There is also an element of commonality in that after an interaction with someone with whom she had a relationship which did not result in the outcome she wanted, she consumed alcohol and after the consumption of alcohol she obtained materials to assist in starting a fire and then proceeded to do so.

[39]              While the Australian arson did not result in immediate financial gain, and the consequence of the New Zealand fire was that the appellant ultimately received a substantial money inheritance, the connection is that the motivation in each case appeared to be the same, namely upset as a result of requests for financial/material benefit being rebuffed or unsuccessful.

[40]              I also do not accept counsel’s categorisation of the Australian offending being spiteful and that not being a feature of the facts in the present case. It could be said that there was an element of spite in burning the deceased’s house down because he would not give the appellant what she had asked him for.

[41]              I acknowledge the time delay of 13 years between offences. However, arson is one of those offences where time delay will not necessarily be as significant as with more common offences.2

[42]              Arson is accepted as being an “unusual” offence in the sense contemplated by s 43(3)(f).3 I am satisfied that the propensity established by the Australian offending is therefore relevant to the matters in issue in the present case, namely whether the fire was arson and the identity of the arsonist. The similarities between the Australian offending and the facts of the present offending show a propensity to act in a certain way.

[43]              In reaching this conclusion, I have not ignored the fact that there are some dissimilarities between the two instances. However, those dissimilarities do not outweigh the features which establish the propensity.

[44]              I now turn to assess the probative value of the evidence against its prejudicial effect. Given that it has repeatedly been acknowledged by the Courts that arson is an unusual offence, the Australian convictions for arson have high probative value. As discussed above, there is also authority that a gap of 10 or more years does not undermine the probative value of a prior incident involving arson.

[45]              There will undoubtedly be prejudice in permitting the evidence to be tendered as propensity evidence. However, the focus is on unfair prejudice.

[46]              Here, the evidence in relation to the Australian arson shows much more than that the defendant has a propensity to commit arson. It also establishes that she has a propensity to do so in circumstances where she is upset with someone with whom she is/has been in a relationship, the cause of that upset is that she has not received an anticipated financial/material benefit from that person, and that the arson occurred after the consumption of a quantity of alcohol. This is evidence of high probative value directly related to the two issues to be determined at trial. The fact that the

2      See R v Ahlawat [2021] NZCA 610.

3      See SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [123] and [126].

evidence is of high probative value does not mean that it is unfair. Any potential unfairness can be dealt with by way of directions to the jury.

[47]              I therefore conclude that the probative value of the Australian convictions outweighs any prejudice and rule that it is admissible.

The Dunedin planning

[48]              The fact that the evidence relating to the planning for the proposed Dunedin offending is admissible for the purpose of establishing the defendant’s knowledge about how to light a fire which would burn a building down without creating suspicion does not mean that it is automatically admissible as evidence of propensity.

[49]              I accept the Crown’s contention that a defendant does not have to have been charged with, or convicted of, an offence for the relevant conduct to amount to propensity evidence. I also accept there are some similarities between the scenario discussed by Ms Tait and the defendant to the events that the Crown alleges occurred in the present case, namely putting a pot of oil on a stove and turning the stove on.4

[50]              I also accept it is arguable that the evidence tends to show the defendant’s propensity to act in a particular way or to have a particular state of mind and is therefore propensity evidence in terms of s 40.

[51]              However, in this case there are a number of dissimilarities which ultimately are decisive. The elements of propensity that I have found persuasive in relation to the Australian arsons are not present here or not present to the same extent. Although the defendant took a dislike to the person who was represented as being Ms Tait’s partner (and the person whose property was to be subject of the arson), she was not, and never had been, in any personal relationship with him, he did not owe her any money and she was not upset at him for having failed to deliver a financial or material benefit. Neither had she acted following the consumption of a quantity of alcohol.

4      I also note that the evidence is admissible for the defendant’s knowledge of how to avoid being seen by things like CCTV cameras, being careful about cellphones and other such matters in order to avoid detection.

[52]              I asses its probative value in respect of the present charges as being medium to low.

[53]              It is not necessary for the Crown to be able to lead this evidence as propensity evidence in order for the evidence to be put before the jury to show that the defendant knew how to start a fire and make it look like an accident and how to take steps to minimise the risk of detection in relation to arson.

[54]              If the Crown is able to rely on this evidence as propensity evidence, the prejudice would be high. I have concluded it would be unfair even with directions. Therefore, I decline the Crown’s application to adduce it for the purposes of proving propensity.

Outcome

[55]              The application to admit hearsay evidence is granted. The application to admit the Australian convictions as propensity evidence is granted. The application to admit the evidence in relation to planning for the Dunedin event as propensity evidence is declined.

Churchman J

Solicitors:

Crown Solicitor’s Office, Gisborne for Crown R M Adams, Tauranga for Defendant