R v Murray

[2015] NZHC 1704

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 WELLINGTON REGISTRY

CRI-2015-091-096 [2015] NZHC 1704

THE QUEEN

v

CRUZ MASON MURRAY

Hearing:	10 July 2015
Counsel:	S C Carter for Crown E A Hall and C J Stevenson for Defendant
Judgment:	23 July 2015

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4 pm on the 23rd day of July 2015

Solicitors:           Crown Solicitor, Wellington

R v MURRAY [2015] NZHC 1704 [23 July 2015]

[1]      The  defendant  faces  a  charge  of  manslaughter  arising  from  an  incident outside 9 Rossiter Avenue in Tawa.   The defendant got into an altercation in the course of which he punched the victim, who fell to the ground and hit his head on the concrete.  He died from his injuries in hospital three days later.  The trial issue will be self defence.

[2]      The  present  application  is  concerned  with  the  admissibility  of  certain evidence which the Crown proposes to adduce.   The defence submits that the evidence is irrelevant and consequently not admissible under s 7 of the Evidence Act 2006.

[3]      The evidence relates broadly to when and how the defendant left the house where the incident occurred after these events.   The evidence falls into three categories:

(a)      eyewitness evidence of several people at the scene at the time of or soon after the incident, who would give evidence related to the defendant’s then whereabouts;

(b)      evidence about a text message from the defendant’s phone, and a

passage in his interview referring to that message;  and

(c)      evidence of a taxi being called to another address on the night of the incident.

[4]      The essence of the defence objection is that evidence of the defendant’s movements after the incident is not relevant to any issue of consequence to the proceeding.   The trial issue will be self defence and the defence submits that the evidence could not assist the jury to draw any inference relevant to any of the issues which the jury will need to consider in deciding whether the Crown has excluded a reasonable possibility that the defendant was acting in self defence.   The defence submits that the evidence will be used only to  support the proposition that the accused lied when he said in his interview that all he remembered is waking in the back of his partner’s car.

[5]      The evidence objected to in the first category is as follows:

(a)      Waitemata Rameka

[6]      Ms Rameka would give evidence as to what she saw, and of what she was told  by  another  witness,  concerning  the  whereabouts  and  movements  of  the defendant (referred to as “Cruz”) soon after the incident.  The evidence objected to is recorded in her brief as follows:

So I said “Where is Cruz” because he wasn’t in the garage anymore.  They said that he had left out the back and I figured he had gone through the creek out the back.

Not long after that everyone left.  I’m not sure how Chardai left, as far as I know Cruz didn’t come back and get her, I think she must have left with Buffy and the others.

(b)      Leiken Walker

[7]      This  witness  would  give  evidence  of  conversation  with  the  defendant  a couple of days after the incident. The passage in her brief objected to is:

I said to Cruz “how did you get home?” He said “I caught a taxi.”

He did not tell me where he caught it from but I can’t remember where he

said it was.

He said that he went back to Rossiter Street that night and none of our vehicles were there so he caught a taxi home to Westmeath Street.

He didn’t tell me where he went from the time that he left the garage at

Rossiter Street to the time he returned there in a taxi. That was pretty much all we talked about.

(c)      Nephi Winiata

[8]      This witness was at the address at the time.   The passage in his brief which is objected to is:

I left Beaudene’s aunties house with Char in her car.  She was driving.

It was me, Beaudene, Envy and Char in her car.

Layken was driving his van with Boffy and the kids, I think.

I don’t know what time that was.

I’m not really clear who was in whose car.  I was pretty drunk because I had

had more to drink in the garage.

I don’t know how Cruz got home but I saw him at home the next day when I

woke up.

(d)      Constable McGregor

[9]      Constable McGregor attended the incident.  He will give evidence of seeing two vehicles leaving 9 Rossiter Street.  His challenged evidence is that he did not see the defendant enter either vehicle.

[10]     The  second  category  concerns  a  text  message  sent  from  the  defendant’s phone to his partner’s phone at 1.57 am. That reads:

oi wea u ds cruz im getn cab bk home

[11]     That was put to the defendant in his video interview in the following passage to which objection is taken.

JP:       Okay, So Cruz earlier you said to me that after you had a few drinks and after you saw the lights and emergency services that all you remember is waking up in the back of your car, or in the back of, um, you and Chardai’s car and inside that car was your brother-in- law, sister-in-law, Chardai, your daughter and yourself.  Um, we’ve got text messages here, well I’ve got text messages here where at … ah, these text messages show that, “This is Cruz I’m getting a cab back home” at 1.57.   So that was on the morning of the 21st  of December.  So explain that.

CM:     Um … which one was it? JP:       These are all text messages. CM:        Yep, I can see that.

JP:       In particular, this one here, it’s the second line on this spreadsheet, on the 21st of the 12th 2014 at 1.57 it says, “Oi, where you dis Cruz, I’m getting cab back home.”

CM:     Mm.  Can’t remember that.

[12]     The third category of evidence is evidence of three witnesses who will give evidence of a taxi being called to 2 Iris Grove in Tawa.   There are two principal witnesses in this category (additional to the police officer who conducted this part of

the inquiry).  The first is the manager of Porirua Taxis, who will give evidence as follows:

I checked our computer system and found the call for the taxi was at 2:52am for a person named Toni.  The phone call was from the [cellphone number] and it was a female caller. The driver for this job was Peter Gray.

[13]     The second is Mr Gray, who will give evidence as follows:

At about 3.10 am I picked up a fare from 2 Iris Grove, Cannons Creeks.

I know this because I have seen the job sheet from Porirua Taxis and shown to me by Detective Constable Sutton.

I dropped the fare off in Westmeath Street, Waitangirua. According to my log book I charged the fare $8.00.

I have no recollection of this fare or who the passenger was.   I cannot remember if we talked about anything or what the person looked like or was wearing.

I only know that the fare was a male because that is what I have been told.

[14]     I address the first category, the eye witness accounts.   Speaking broadly, evidence of circumstances surrounding the events which form the subject of a charge is admissible to assist the jury in getting a full picture of what occurred.  That broad principle renders relevant, for the purposes of s 7, evidence as to circumstances and events closely related in time and place to the events giving rise to the charge, even when that evidence has no direct relevance to any specific issue which the jury must determine. The evidence of witnesses at the scene as to the movements of the people there, including the defendant, if sufficiently close in time, will be admissible under s 7, subject to the balancing of a possible prejudicial effect under s 8.

[15]     The evidence of the three civilian witnesses is sufficiently close in time to be relevant under s 7.  Constable McGregor’s evidence is slightly later, about one and a half hours after the incident.   As it relates to the movement of vehicles from the premises, I consider that it is sufficiently close in time to be relevant background.

[16]     All of the evidence in the first category is therefore relevant and admissible under s 7, unless excluded under s 8.

[17]     As to the evidence in the second category, the text message was potentially inconsistent with a statement by the defendant at interview.  That inconsistency was a relevant matter, even though it may not be directly relevant to the issue of self defence.   The defendant’s statement at interview that all he could remember was waking up in the back of his car gave the text message sufficient relevance to be admissible under s 7, unless excluded by s 8.

[18]     The   evidence   in   the   third   category  is   not   relevant   as   evidence   of circumstances surrounding the incident.  Any relevance is limited to such support as it may provide for the accuracy of the defendant’s statement in the text message that he was getting a cab home.  The evidence on its face provides limited support in that way.  But even if it is accepted as capable of providing support, I consider that it is not relevant in terms of s 7.  The question whether the defendant took a taxi home is not directly relevant. It is not indirectly relevant as part of the complete picture which the jury should have.  The evidence could be relevant only to demonstrate that the defendant lied in his statement.  That could not, in the circumstances of this case, render the evidence admissible as evidence of after-the-fact conduct which may support an inference of guilt.  Evidence of a lie about the defendant’s actions after, and unrelated to, the incident will be relevant only if it satisfies a double inference test, namely that the jury could properly infer that a defendant lied because he had a guilty state of mind, and also that guilt of the crime can be inferred from that guilty

state of mind.1

[19]     This evidence falls well short of meeting either part of that test.  I rule that this category is not admissible under s 7.

[20]     That leaves for evaluation the balancing of the risk of any unfairly prejudicial effect of the evidence in categories 1 and 2 against its probative value, under s 8.

[21]     I do not consider that there is a significant risk of an unfairly prejudicial effect for either category.   Inconsistency between statements made by a defendant

1      R v G [2015] NZHC 1418 at [118]; citing John Henry Wigmore Wigmore on Evidence (Tillers

Revision, Little, Brown & Company, Boston, 1983) vol 1A at §173 ; R v Godlewski [1994] 3

WWR 153 at 160; Andrew Palmer “Guilt and the Consciousness of Guilt” (1997) 21 Melb U L Rev 95.

will not ordinarily give rise to a risk of prejudice which requires all or any of the statements to be excluded. To the extent (if any) that the evidence in either category may cast doubt on the accuracy of any part of the defendant’s statement, that is able to be addressed by an appropriate direction to the jury.  The risk that the jury might place undue weight on such inaccuracy is, on my assessment, sufficiently small that a direction may not be necessary, but that will of course be a matter for the trial Judge.

[22]     For these reasons, I rule that the evidence challenged under categories 1 and 2, as identified above, is admissible, but the evidence identified in category 3 is inadmissible.

“A D MacKenzie J”