R v Messervy - [2023] NZHC 3155

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-8059

[2023] NZHC 3155

THE KING

v

BAILEY MESSERVY

Hearing: 2 November 2023

Appearances:

D L Elsmore and M G McClenaghan for Crown A N D Garrett and K H Cook for Defendant

Judgment:

9 November 2023

Re-issued:

21 December 2023

JUDGMENT OF EATON J

(defendant’s statement and propensity)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

R v MESSERVY [2023] NZHC 3155 [9 November 2023]

Introduction

[1] Bailey Messervy is charged with the murder of Nigel Wilson. It is alleged that he murdered Mr Wilson by repeatedly stabbing him within the Bexley Reserve shortly after 5 am on the morning of 14 November 2022. He has entered a plea of not guilty and is presently remanded to a trial date in August 2024.

Pretrial matters

[2] Two pretrial applications have been filed. First, the Crown seek a ruling as to the admissibility of proposed propensity evidence. Second, both the Crown and defence seek a ruling as to the admissibility of Mr Messervy’s statement made to police on 16 November 2022.

Background facts1

[3] It is the Crown case that, shortly after 5 am on 14 November 2022, the victim, Mr Wilson, was walking his young dog within the Bexley Reserve in Christchurch. Eighteen year old Bailey Messervy was with his co-defendant, travelling in Mr Messervy’s vehicle. They drove into the Bexley Reserve for the co-defendant to go to the toilet.

[4] Mr Wilson observed Mr Messervy’s vehicle, waved his arms and yelled, “dogs walk here.” He was concerned the vehicle was speeding. After the co-defendant had been to the toilet, they and Mr Messervy went to leave the reserve, driving towards the Pages Road entrance. As they approached that entrance, they saw Mr Wilson shutting the gates and then running into the bushes nearby. It is the Crown case that Mr Messervy became very angry and yelled at the victim to “open the fucking gate bro.” In response, Mr Wilson came out of the bushes yelling at Mr Messervy and approaching his vehicle. As Mr Wilson moved closer to the vehicle, Mr Messervy is alleged to have exited, armed with a knife. It is alleged he then stabbed Mr Wilson in

1 The factual summary relies on information given to police by the co-defendant who, as at the date of this hearing, is a co-defendant. Consequently, the statement is inadmissible against Mr Messervy. Counsel were agreed the Court should proceed on the assumption the co-defendant will be a Crown witness at trial.

the abdomen as he pushed him backwards. Mr Wilson grabbed Mr Messervy by the testicles, and both men fell to the ground. It is the Crown case that, while on the ground, Mr Messervy stabbed Mr Wilson repeatedly. Both Mr Messervy and Mr Wilson then got to their feet, and Mr Messervy backed away. The co-defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Messervy

Details

AGLC: R v Messervy [2023] NZHC 3155
Case: [2023] NZHC 3155
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, the defendant, Bailey Messervy, stands charged with the murder of Nigel Wilson, occurring in the early hours of 14 November 2022. Messervy has pleaded not guilty to the charge and is remanded awaiting trial. The court has heard two pretrial applications: the admissibility of proposed propensity evidence and the admissibility of Messervy's statement made to police on 16 November 2022. The Crown does not propose to offer Messervy's statement as evidence at trial, resolving to do so on the basis that the statement is exculpatory. Therefore, the court does not require to rule on its admissibility. The court declines to make a pretrial ruling as to whether Messervy could be cross-examined on his statement if he were to give evidence at trial.

The Crown seeks to admit evidence of two prior incidents for which Messervy received Youth Court notations. Messervy's defence argues that the unfairly prejudicial effect of the alleged propensity evidence outweighs any probative value. The court assesses the admissibility of the propensity evidence against the statutory criteria of section 43 of the Evidence Act 2006, which require consideration of the probative value of the evidence in relation to an issue in dispute and the risk that the evidence may have an unfairly prejudicial effect on the defendant. The court finds the evidence is considerably probative given the temporal connection between the events, similarity, and degree of unusualness across the incidents, and the lack of suggestion of collusion or suggestibility. However, the court is not persuaded that the evidence is admissible as being probative of Messervy's intent. While the evidence is relevant to the issue of self-defence, the court will limit the propensity evidence to the summary of facts presented in the Youth Court in relation to each incident, provided there is agreement as to the summary.

Orders