R v Murray - [2012] NZHC 940

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 REGISTRY
CRI 2011-004-018901 [2012] NZHC 940

BETWEEN THE QUEEN Applicant

ANDKIT JOHN MURRAY Respondent

Hearing: 3 May 2012

Appearances: N Walker and B Smith for Applicant
A Speed for Respondent

Judgment: 8 May 2012

(RESERVED) JUDGMENT OF ANDREWS J [Application by Crown to admit propensity evidence]

This judgment is delivered by me on 8 May 2012 at 10am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors: Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140
Counsel: A G Speed, PO Box 941, Shortland Street, Auckland 1140

R V MURRAY HC CRI 2011-004-018901 [8 May 2012]

Introduction

[1] The respondent faces trial on a charge of manslaughter. The Crown has applied under s 344A of the Crimes Act 1961 for an order that certain evidence is admissible as propensity evidence as at his trial, pursuant to s 43 of the Evidence Act
2006.

Alleged offending

[2] As set out in the Police caption summary, it is alleged that at about 1:30am on Friday 7 October 2011 the respondent and some associates were on the footpath outside a bar in central Auckland. At the same time the deceased, Mr Dawson, was leaving the bar. As he did so, he bumped into one of the respondent’s associates. It is alleged that there was then a confrontation between Mr Dawson and the associates, resulting in Mr Dawson being forced to the ground, then slapped in the face. The respondent took no part in this incident, but was nearby, watching.

[3] At this point an employee from the bar intervened, and Mr Dawson was put back on his feet, and he started to back away. It is alleged that the respondent then pushed Mr Dawson back, away from the respondent’s associates. Mr Dawson was said to be verbally abusing the associates.

[4] It is alleged that when Mr Dawson was about ten metres away from the group the respondent, without any apparent provocation, punched him once on the left side of his face, using the closed fist of his right hand, with considerable force. This resulted in Mr Dawson losing consciousness and falling backwards onto the ground, striking his head heavily on the ground. Mr Dawson had sustained significant head injuries. He was pronounced dead later that day.

[5] The respondent was interviewed on 8 October 2011. He said that he had leaned into Mr Dawson, giving him what he described as a “firm push”, a “little push”, or a “quick shove”, telling Mr Dawson to walk away. The respondent emphatically and repeatedly denied punching Mr Dawson.

[6] It was common ground that the respondent has in the past suffered a number of head injuries. That is relevant to his having…

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 Murray

Details

AGLC: R v Murray [2012] NZHC 940
Case: [2012] NZHC 940
Decision Date: 8 May 2012

CaseChat Overview and Summary

The case involves a respondent who faces trial for the charge of manslaughter. The Crown has applied for an order that certain evidence be admissible as propensity evidence as per s 43 of the Evidence Act 2006 during the respondent's trial. The legal issues the court was required to decide were whether the proposed evidence is relevant, has probative value, and whether its prejudicial effect outweighs its probative value. The court found that the evidence of Ms Reive, who witnessed two incidents of the respondent assaulting males on the face, was relevant to the issue of whether the respondent intentionally assaulted Mr Dawson. The court also found that Ms Reive's evidence had a high probative value in showing the respondent's tendency to act with sudden violence in certain situations by delivering a violent blow to the face of his victim. Finally, the court found that the probative value of Ms Reive's evidence did not outweigh the risk of any prejudicial effect on the respondent. The court concluded that any risk can be well alleviated by appropriate directions. Ms Reive's evidence is therefore admissible as propensity evidence.

If any further orders are to be made, they will be made at the trial.

Orders