R v Messervy
[2023] NZHC 3155
•9 November 2023
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 took Mr Wilson’s phone that had fallen to the ground. Mr Wilson is alleged to then have dropped to his knees, raising his hands in the air saying, “I’m done, I’m done.” It is alleged the defendant opened the gate, and as he returned to his car, pushed Mr Wilson to the ground and verbally abused him. Mr Messervy with the co-defendant then left the reserve, leaving Mr Wilson lying injured.
[5] Mr Wilson’s dog managed to find her way to Mr Wilson’s home, alerting his partner. His partner, together with other members of Mr Wilson’s family, then searched for Mr Wilson, finding him within the reserve. An ambulance was called. Mr Wilson underwent several operations over the following eight days. He was taken off life support and died on 22 November 2022.
Mr Messervy’s statement
[6] On 1 June 2023, the Crown prosecutor filed a s 101 Evidence Act 2006 application seeking a pretrial ruling as to the admissibility of the DVD statement Mr Messervy gave to police on 16 November 2022.
[7] That statement has been transcribed. It runs to approximately 160 pages. The first 120 pages deal with allegations Mr Messervy had been involved in a number of drive-offs from petrol stations. When the interviewing officer eventually questioned Mr Messervy about the stabbing, Mr Messervy denied any involvement in a stabbing. He told the detective he would not answer questions about “that stuff” without talking to a lawyer.
[8] During the interview, the police advised Mr Messervy that his co-defendant was talking to another police officer at the same time. Police then drip-fed information provided by the co-defendant to Mr Messervy. His initial response was that the co-defendant was not telling the police the truth, and he repeatedly asked if he could see the co-defendant in order to satisfy himself that police were not misleading him as to whether they were speaking to police and what they were telling police.
[9] Mr Messervy did not make any admissions regarding the stabbing during the course of the interview. He said he was home at the time of the stabbing.
[10] Following notice by the defence of an objection to the admissibility of Mr Messervy’s statement, based on the failure to caution Mr Messervy in relation to the stabbing enquiry and a failure to facilitate access to a lawyer, the Crown resolved, on the grounds the statement was exculpatory, not to offer Mr Messervy’s statement as evidence at his trial. Consequently, an admissibility ruling was not required.
[11] Mr Garrett, on behalf of Mr Messervy, filed a memorandum with the Court seeking a ruling as to whether the defendant could be cross-examined on the statement if he were to give evidence at trial.2 The only possible relevance of such a line of cross-examination would be for the Crown to prove that Mr Messervy lied to police when first spoken to. Mr McClenaghan, on behalf of the Crown, supports Mr Garrett’s request that the Court make a pretrial ruling as to the admissibility of the statement.
[12] In oral submissions, counsel for Mr Messervy sought an adjournment of the admissibility application to allow further disclosure to be made about events shortly prior to the interview and to allow for the interviewing officer to be cross-examined.
[13] I do not need to determine the application for an adjournment. I have resolved it is not appropriate for the Court to determine the admissibility issue as matters stand for the reasons that follow.
[14] First, I have reservations as to the appropriateness of the Court issuing a ruling on a hypothetical basis. Presently, the Crown do not seek to offer Mr Messervy’s statement into evidence. A pretrial ruling will have no consequence unless Mr Messervy makes an election to give evidence at trial and if the Crown then sought to cross-examine him on the statement. Whether either of those scenarios will play out remains to be seen. Unless or until an application is made to do so, any ruling as to its admissibility is not required.
2 In submissions filed on the admissibility of propensity evidence, Mr Garrett confirms the issues at trial will be intent and self-defence.
[15] A number of exchanges within the disputed statement record Mr Messervy’s response to matters said by the co-defendant to police during their interview. Because they are a co-defendant, their statement is not admissible against Mr Messervy. At interview, Mr Messervy consistently denied that what the co-defendant was telling police was true. He did not adopt the co-defendant’s version of events. Therefore, putting aside any issue as to whether Mr Messervy’s statement was unfairly obtained by police, the passages in Mr Messervy’s interview recording his denial of the co-defendant’s version of events are inadmissible.
[16] The circumstances would be different if the co-defendant was no longer a co-defendant, if they were to plead guilty in advance of Mr Messervy’s trial, if they was a Crown witness, and if they gave evidence in accordance with their police interview. Presently, there are several unknowns. It could be only when those unknowns are resolved that the Court will be in a position to make a ruling as to whether Mr Messervy’s statement is admissible such that he could be cross-examined on that statement.
[17] It will be for the trial Judge to make that ruling if there is a shift from the current circumstances. In the meantime, I decline to make an admissibility ruling in relation to Mr Messervy’s statement.
[18] I nevertheless make the following observation. Mr McClenaghan acknowledged that the only basis upon which the Crown would seek to cross-examine Mr Messervy on his prior statement would be to prove he lied to police when first interviewed. Whilst I acknowledge the lie has some probative weight, it is not a significant limb of the Crown case. I do not think evidence of that lie is of any great prejudice to Mr Messervy. It does not strike me as a matter of great moment that an eighteen year old, when first confronted, lies about his involvement in an incident involving serious violence, and particularly not when, as I understand the Crown case, Mr Messervy made an admission of involvement in a confrontation with Mr Wilson very shortly after the interview was concluded and again in a letter to his mother intercepted by police following his arrest. During the course of argument, I suggested to counsel that the fact of Mr Messervy’s initial denial could be recorded as a single sentence in a s 9 admission of facts. I make this observation as it may be that
discussions between the parties can resolve this issue and avoid the need for a voir dire and ruling at trial.
Propensity
[19] The Crown seeks to admit evidence of two prior incidents in February 2022 for which Mr Messervy received Youth Court notations, he having “not denied” the allegations. On behalf of Mr Messervy, it is submitted the unfairly prejudicial effect of the alleged propensity evidence outweighs any probative value.
Alleged propensity evidence
The Warehouse incident
[20] On 12 February 2022, at around 9 pm, Mr Messervy was at The Warehouse with a female associate and her children. A customer informed security personnel they had seen Mr Messervy put items under his clothing. A security guard approached Mr Messervy as he exited the store. Mr Messervy sought to speedily exit the store. The guard grabbed Mr Messervy’s jersey. Mr Messervy spun around and said, “do you wanna fight?”, before punching the guard in the chest and shoulder region. Mr Messervy, his partner, and the children then ran to a vehicle in the carpark.
[21] The guard and another staff member approached Mr Messervy’s vehicle. Upon being confronted, Mr Messervy reached into the vehicle from the driver’s side, took possession of what appeared to be a serrated knife, challenged the staff member and, while holding the knife at his hip, threatened to cut his throat. The guard and staff member backed away, and Mr Messervy drove off at speed.
Petrol Station incident
[22] On the afternoon of 22 February 2022, Mr Messervy was filling his vehicle with petrol at a Christchurch petrol station. A female passenger was with him. The store attendant noticed Mr Messervy getting back into his car without having paid and told him he needed to pay for the petrol. Ms Messervy reached into the driver’s side pocket of the door and pulled out a knife, holding it in a “backward grip”. He waved
it multiple times at the attendant as if he was going to stab him. Mr Messervy then drove off.
General principles
[23] Propensity evidence is that which tends to show a person’s propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved.3
[24] The prosecution may only offer propensity evidence about a defendant if the evidence has a probative value in relation to an issue in dispute that outweighs the risk the evidence may have an unfairly prejudicial effect on the defendant. Section 43(3) lists several permissive considerations relevant to considering probative value, and s 43(4) prescribes the mandatory considerations in assessing the prejudicial effect.
[25] Admissible propensity evidence will share a specific link with the alleged conduct said to constitute the offence for which the defendant is being tried.4 Such evidence must be “genuinely and logically relevant to the issues the jury will have to determine”.5 The essence of the rationale for admission was captured by Tipping J on behalf of the majority in Mahomed v R as follows:6
“The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.”
[26] The Court must remain alert to the risk of illegitimate prejudice that is too great for jury directions to be a safeguard.7 Ultimately, the determination of the admissibility of propensity evidence is intensely fact specific.8
3 Evidence Act 2006, s 40.
4 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].
5 Stretch v R [2012] NZCA 286 at [24].
6 Mahomed v R, above n 4, at [3] (emphasis original).
7 R v Hayde [2021] NZHC 2714 at [37].
8 Grigg v R [2015] NZCA 27 at [22].
The issue
[27] Mr Cook, for Mr Messervy, confirms that regardless of the position taken by Mr Messervy when interviewed by police, he will at trial accept he was in possession of a knife that he had produced from his vehicle and that he got into a struggle with and stabbed the deceased. Mr Cook confirms the issues at trial raised by the defence will be murderous intent and self-defence.
Crown Submissions
[28] The Crown frame the propensity as a “proclivity by the defendant to use a knife which is carried in the vehicle he is driving, and in situations of confrontation to then use that knife to threaten, intimidate and overcome any perceived hostility or threat. Such actions are completely unjustified and excessive in response”.
[29] Mr McClenaghan submits the two propensity events are relevant to both the trial issues of murderous intent and self-defence.
[30]Relevant to the probative value of the propensity evidence, the Crown submit:
(a)There are three acts, so frequency is present to a moderate to high degree.
(b)The acts occurred within a nine-month period and are closely connected in time.
(c)The acts are similar insofar as they involve a victim confronting Mr Messervy regarding his conduct, Mr Messervy responds with aggression and threatening behaviour, a knife is involved and is taken from the vehicle Mr Messervy is driving, and all three acts involve Mr Messervy brandishing or using the knife in a threatening manner.
(d)There are three sets of allegations.
(e)There is no suggestion of collusion or suggestibility across the incidents.
(f)Threatening a person with a knife and being confrontational is not particularly unusual, per se, but considered together, the acts take on a specificity which makes it unusual.
[31] Mr McClenaghan submits there is sufficient specificity to the alleged propensity and that there is a high degree of linkage, and coincidental reasoning supporting the admission of the evidence. While the previous incidents concerned Mr Messervy reacting to allegations of shoplifting/theft, the Crown say this is not a relevant distinction and it is the matter of confrontation that is salient. Mr McClenaghan submits the key distinguishing factor that led to the stabbing is that Mr Messervy’s escape was cut off by Mr Wilson having shut the gate to the reserve, whereas he was able to drive away from The Warehouse and petrol station incidents.
[32] In support of a submission that the propensity evidence has probative value in relation to both trial issues, Mr McClenaghan relies on the Court of Appeal decision in Harris v R.9 In Harris, propensity evidence of prior acts involving threats when armed with a weapon were admitted as propensity evidence at the defendant’s murder trial. The Court of Appeal agreed with the High Court that the prior acts were relevant both as to murderous intent and self-defence in circumstances where the propensity was described as presenting a weapon in circumstances where doing so was completely unjustified.
[33] Mr McClenaghan submits the two incidents have considerable probative value in considering self-defence. He contends that the two previous incidents demonstrate Mr Messervy as an aggressor who is quick to arm himself with a knife and escalate a conflict he has created. He is quick to anger, and the incident at The Warehouse demonstrates Mr Messervy does not hesitate in responding with physical force when physically confronted. Mr McClenaghan submits this also goes to intent.
[34] Mr McClenaghan submits that, against a high probative value, there is not unfair prejudice such that the evidence should be excluded.
9 Harris v R [2016] NZCA 17.
Defence Submissions
[35] Mr Cook submits the two prior incidents do no more than demonstrate a propensity by Mr Messervy to possess a bladed weapon and present it intimidatingly when confronted. He submits the requisite specificity is lacking. Mr Cook disputes that Mr Messervy was the aggressor in the prior incidents because they involve the victims confronting him. Further, he highlights that, in both incidents, Mr Messervy departed the scene after the victims have been dissuaded by the presence of the knife. Mr Cook contests the Crown’s contention that the incidents show Mr Messervy is quick to anger and does not hesitate in responding with physical force.
[36] Addressing the s 43 factors, Mr Cook observes that the two incidents occurred nine months prior and says they are not closely connected to the alleged offending. He submits there are glaring differences between those incidents and the alleged offending. Most particularly, and Mr Cook submits determinate of the admissibility dispute, neither of the incidents involved Mr Messervy escalating to violence involving the use of the knife.
[37] Relevant to the trial issue of murderous intent, Mr Cook relies on Fallowfield v R,10 where the appellant admitted strangling his wife but denied murderous intent. Some of the evidence of previous domestic assaults, including one of choking where the witness did not lose consciousness, were assessed by the Court of Appeal as lacking probative value on the issue of intent. Mr Cook also relies on Ah You v R.11 There, the defendant had been convicted of murder after attacking an elderly women in her home. The single trial issue was murderous intent. Propensity evidence was admitted where Mr Ah You had entered the homes of other persons and made threats of violence and used low-level violence. The Court of Appeal held the propensity evidence had limited probative value which was overwhelmed by the prejudice that flowed from it. The Court commented that the evidence did not involve Mr Ah You killing anyone or even causing grievous bodily harm. Mr Cook observes that Ah You was applied in R v Taunga,12 where Muir J held previous instances of the defendant lashing out in anger and throttling persons did not have probative value as
10 Fallowfield v R [2021] NZCA 279.
11 Ah You v R [2011] NZCA 82.
12 R v Taunga [2017] NZHC 972.
to whether he had intent to cause injury when he squeezed the victim’s neck for several minutes.
[38] Mr Cook distinguishes Harris on the basis Mr Harris had singularly initiated the confrontation whereas Mr Messervy is responding to confrontation. He described Harris as an outlier. He submits the two propensity incidents have little or no probative value in assessing the issue of murderous intent.
[39] While appropriately acknowledging the prior events have greater probative value to the issue of self-defence, Mr Cook submits the evidence still falls short of the threshold for admissibility. Again, he emphasises that in neither incident did Mr Messervy use the knife to inflict harm. Therefore, it is submitted, the circumstances giving rise to the death of Mr Wilson are too removed to permit the admission of the prosperity evidence.
[40] Mr Cook submits the prejudice flowing from the proposed evidence is greater for Mr Messervy, as the incidents in Harris were more “everyday activities in the rural scene”. Counsel argues that the jury hearing about incidents where Mr Messervy is accused of theft and then using a weapon to threaten innocent civilians to avoid apprehension will cause unfair prejudice.
Analysis
[41] I see no basis to distinguish between the two propensity incidents. Both incidents tend to show that Mr Messervy has a propensity to arm himself with a knife, that he keeps at the ready in his car, and to use that knife aggressively and threateningly when challenged by a person who is unarmed.
[42] Counsel are generally in agreement as regards the s 43(3) factors. First, there are three events that occurred over a period of approximately nine months.13 It follows there is a temporal connection between the three events, and the number of events over that comparatively short period of time favours admissibility. Second, I accept there is a strong similarity between the propensity events and the alleged offending. In each
13 Evidence Act, s 43(a) and (b).
case, Mr Messervy acted in a manner that gave rise to a confrontation with a member of the public. His response has been aggressive and threatening. On each occasion, he has ready access to a knife concealed within his vehicle. In each case, he has swiftly armed himself with the knife and brandished it in a manner that is threatening to the victim, either by the physical use of the knife or words or both.14 I agree there is no suggestion of collusion or suggestibility relevant to the admissibility determination.15 Finally, I agree with Mr McClenaghan that the circumstances of similarity that I have outlined above do strike as unusual, albeit not to a high degree.
Murderous intent
[43] Notwithstanding the analysis that I have undertaken under s 43 in relation to the probative value of the evidence, I am not persuaded the evidence is admissible as being probative of Mr Messervy’s intent. The Crown argument rests heavily on the Court of Appeal decision in Harris. Mr Harris was charged with murder. He had confronted another farmer about shooting his stock before stabbing him in the chest and attempting to run him over. Evidence of two previous incidents were admitted as propensity evidence in the High Court and upheld by the Court of Appeal. The first concerned Mr Harris raising a knife at his brother and threatening to use it approximately seven months before the alleged murder. The second involved Mr Harris threatening a 16-year-old who was eeling under a bridge near Mr Harris’s property. Mr Harris approached the youth with a shotgun and threatened him. That was four years prior to the murder. The Court described the propensity as the presenting of a weapon in circumstances where doing so was completely unjustified.
[44] In relation to the first incident, the Court of Appeal found that: “…the Judge was clearly entitled to hold that the evidence of a threat involving a knife, in circumstances where it was unprovoked and completely unjustified, was directly relevant to the issue of Mr Harris’s intent at the time he stabbed Mr Keogh to death, and to the credibility of any claim that he was defending himself against Mr Keogh.”16
14 Section 43(3)(c).
15 Section 43(3)(e).
16 At [13].
[45] The Court found the second incident was evidence of Mr Harris’s short temper and his proclivity to overreact by using or threatening to use a weapon in response to what he perceives to be a threat to his safety or property rights. The Court considered such evidence to be directly relevant to the issues of formation of murderous intent or the excessive use of force in self-defence.17
[46] The Court referred to the propensity events where the offender made threats with a knife in circumstances where to do so was unprovoked and completely unjustified. I agree the same could be said of Mr Messervy’s use of the knife but, in my view, that is of a very limited probative value in assessing murderous intent. The Court in Harris was not invited to distinguish the issues of intent and self-defence. On the fact of the present case, it is appropriate to do so.
[47] Concepts of justification and provocation more comfortably fit, in my view, in considering the issue of self-defence. Evidence of prior acts of brandishing, but not otherwise using a knife, has little relevance in determining Mr Messervy’s intent when he admits using the knife to stab the victim some nine months later. The situation would be quite different if on a prior occasion he had used a knife, both in a manner and with a consequence that would provide insight as to his state of knowledge and, therefore, intention. It is not known, and it would not be safe to infer, that on the earlier occasions Mr Messervy would have used the knife with murderous intent had the victim not retreated.
[48] In circumstances where it is not alleged Mr Messervy has previously used the knife to attempt to, or to actually, inflict injury, I am not satisfied the prior events are genuinely and logically relevant to the issue of murderous intent. I respectfully adopt the reasoning of the Court of Appeal in Ah You. The propensity evidence is inadmissible as to that issue.
Self defence
[49] The situation is quite different in relation to the issue of self-defence. The jury at trial will be required to consider the circumstances as Mr Messervy believed them
17 At [14].
to be, who was acting as the aggressor, whether the knife was used defensively or aggressively, and whether the repeated stabbing of Mr Wilson was a proportionate or reasonable response to any threat posed in the circumstances as believed by Mr Messervy.
[50] Whilst other cases other cases do provide some guidance, the Court of Appeal has noted that, generally, judges should “avoid pointless attempts to reconcile one propensity ruling with another, and that it is routinely unnecessary to refer to other cases to resolve propensity challenges which are fact and circumstance specific”.18
[51] I refer briefly to two other cases involving propensity evidence of prior threats where a murder is alleged. Those cases illustrate the importance of focussing on the distinct trial issues and the escalation in seriousness of alleged offending.
[52] In R v Keefe,19 Ms Keefe had stabbed her partner with a knife, killing him. At issue was whether this had been accidental, but the Court of Appeal also considered a possible issue at trial would be self-defence. The Crown sought to adduce a witness’s evidence of two prior occasions where Ms Keefe had threatened her partner with an axe and a broken bottle respectively. The Court considered the evidence was relevant to self-defence insofar as they spoke to Ms Keefe’s threat perception at the time of the alleged murder and the proportionality of her response.
[53] In R v Balkind,20 the Crown sought to adduce propensity evidence of previous domestic incidents to show the defendant would drink, get aggressive, and would overreact and make threats or produce knives. The disputed evidence was statements from other people about injuries suffered by a domestic partner and a previous incident where the defendant had brandished a knife. The defendant was charged with murdering her partner. The Court noted that a difference in seriousness between the propensity evidence and the alleged offending does not deprive the evidence of probative value. The Judge admitted the evidence, finding it was relevant and admissible but solely for the purpose of negativing the defence of self-defence.
18 Brown v R [2020] NZCA 97 at [13].
19 Keefe v R [2014] NZCA 113.
20 R v Balkind [2019] NZHC 257.
[54] As I note at [42] above, I consider the evidence to be 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. In my view, the agreed fact that Mr Messervy did not use the knife to inflict injury in the prior incidents is not an impediment to the admissibility of the propensity evidence. I do not accept Mr Cook’s submission the propensity evidence has no probative value as regards self-defence because Mr Messervy did not use the knife on the prior occasions. It is the Crown’s position that Mr Messervy was the aggressor and that he did not arm himself with a knife for use in self-defence.
[55] I do not accept Mr Cook’s submission that Mr Messervy is not reasonably described as the aggressor in the two propensity incidents because the victims confronted him. Mr Cook is right that both victims did approach Mr Messervy, but only to ask or challenge him about his suspected theft of property. There is no suggestion the initial approach made by the victims was aggressive and certainly no suggestion that Mr Messervy was genuinely physically threatened. Yet, in those circumstances he swiftly resorted to the arming himself with a knife and threatening the victims with the knife. In my view he was clearly the aggressor in those scenarios. That, of course, does not prohibit him advancing a defence of self-defence but, it does demonstrate the probative value of the propensity evidence.
[56] That Mr Messervy has a propensity, demonstrated by the prior events, to arm himself when in a confrontation with an unarmed person is relevant to the questions raised by the defence of self-defence. I am satisfied the prior events are genuinely and logically relevant to the issue of self-defence.
Prejudicial effect
[57] I agree with Mr Cook that some prejudice will flow to Mr Messervy as a consequence of the jury hearing the propensity evidence. However, I do not accept that prejudice would operate unfairly to Mr Messervy. His age at the time and the fact he did not use a knife to inflict physical injury on the victim minimises the prejudice that will arise. But the short point is that, on my assessment, the probative value of the evidence is high.
[58] Counsel did not address the Court as to manner in which the propensity evidence ought to be put before the jury. In my view, it is relevant that the propensity evidence arises out of a prosecution faced by Mr Messervy in the Youth Court, meaning no guilty plea was entered and that an evidential hearing was avoided. This favours limiting 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. To limit the evidence to the summary of facts as opposed to the Crown calling evidence from the civilian witnesses will address the risk that the jury might give disproportionate weight in reaching a verdict to the propensity evidence.21
Result
[59] The propensity evidence is admissible but only in relation to the issue of self-defence.
...................................................
Eaton J
Solicitors:
Crown Solicitor, Christchurch A N D Garrett, Christchurch K H Cook, Christchurch
21 Section 43(4)(b).
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