R v Murray
[2012] NZHC 940
•8 May 2012
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 told the Police that he “wouldn’t put myself in the position” of being in a fight, that he “wouldn't’ risk that”. It was also common ground that on 1 April 2011 the respondent was the victim of a stabbing. That is relevant to his having said to the Police that he “knew what [Mr Dawson] had gone through”, and that he had “gone through what [Mr Dawson] had gone through”, and “wouldn’t wish that on anyone”.
Crown evidence
[7] Ms Walker advised that the Crown evidence includes that of ten witnesses, whose evidence is that they saw the respondent, or a person with a similar appearance, punch Mr Dawson, causing him to fall to the ground without breaking his fall. Some of the witnesses describe Mr Dawson as having lost consciousness immediately, before hitting the ground.
[8] The pathologist, Dr Garavan, is expected to give evidence that a laceration to Mr Dawson’s lip is consistent with evidence that he was struck on the face before falling to the ground, and that the extensive head injuries he suffered are consistent with his falling back and striking his head on the ground.
The proposed propensity evidence
[9] The proposed evidence is from Ms Reive, who describes two incidents in which the respondent was involved, during the period from February to April 2011; that is, some six to eight months before the alleged assault on Mr Dawson.
[10] The first incident was at a car park near a city bar. Ms Reive describes seeing the respondent arguing with two young people, who she said were “egging him on”. She says that the respondent then punched a man in the group “square in the face”, and that the man was “knocked out before he hit the ground”.
[11] The second incident Ms Reive describes was outside a bar in Northcote. Ms
Reive was out drinking with friends, including the respondent. She describes seeing
the respondent suddenly storm out of the bar. She followed him out to see what was happening. She saw the respondent arguing with a man in the car park. The two men were standing face to face, telling each other to hit the other first. Ms Reive says that the respondent suddenly jumped forward and head butted the other man.
Section 43 of the Evidence Act 2006
[12] Pursuant to s 43(1) of the Evidence Act propensity evidence, that is, evidence of acts or events that tends to show a person’s propensity to act in a particular way, or to have a particular state of mind, may be offered by the prosecution about a defendant 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. The matters which the Court, or must, take into account when assessing the probative value of propensity evidence, and assessing the prejudicial effect of the evidence, are set out in s 42(2), (3), and (4) of the Act.
[13] In its judgment in Mahomed v R,[1] the Supreme Court considered the assessment of the probative value of propensity evidence. The Supreme Court said:[2]
[1] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
[2] At [3].
The rationale for the admission of propensity evidence rests largely, ... on the concepts of linkage and coincidence. 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.
(Original emphasis.)
[14] In its judgment in Hudson v R,[3] the Supreme Court held, as one of its reasons for upholding the admission of propensity evidence, that the propensity evidence
[3] Hudson v R [2011] NZSC 51, [2011] 3 NZLR 289.
provided support for, and reinforced, other evidence.[4]
[4] At [57] (c) and (d).
Submissions and discussion
Section 43 (2): relevance
[15] It is necessary, first, to determine whether Ms Reive’s evidence is relevant to
an issue in dispute at trial.
[16] Ms Walker submitted that, given the respondent’s repeated denials, and in particular his repeated statements to the Police that he had not, and would not (as a result of his previous head injuries), hit anyone or “do that sort of thing”, the issue for trial will be whether the respondent intentionally assaulted Mr Dawson by punching him in the face. She submitted that the propensity evidence is directly relevant to that issue. Ms Reive’s evidence is that on two occasions she saw the respondent suddenly and violently assault a male on the face, which is what is alleged in respect of Mr Dawson.
[17] Mr Speed submitted, in his written submissions, that the issues for trial will be identity, self defence, accident, and whether any act by the respondent caused Mr Dawson’s death. In oral submissions he advised that the defence will concede that the respondent was the last person to have physical contact with Mr Dawson. He submitted that Ms Reive’s evidence may be relevant to the issues of intent and self defence.
[18] I am satisfied that evidence that the respondent had, on two previous occasions between six and eight months before the alleged assault on Mr Dawson, suddenly and violently assaulted a male on the face, is relevant to the issue of whether he intentionally assaulted Mr Dawson. It may also be relevant to self defence, if raised by the respondent.
Section 43(3): probative value
[19] Ms Walker submitted that the two incidents described by Ms Reive, six to eight months before the alleged assault on Mr Dawson, were of sufficient frequency and sufficient similarity, and were of a similarly unusual character, as to be highly probative as tending to show that the respondent has a tendency to act with sudden
and largely unprovoked violence, by delivering a single violent blow to the face of his victim. She also submitted that there was no evidence that Ms Reive’s evidence was the result of collusion or suggestibility.
[20] Ms Walker submitted that Ms Reive’s evidence is also relevant in corroborating the evidence of the witnesses who saw the assault on Mr Dawson, and goes to show the implausibility of it being a coincidence that the evidence of those witnesses in identifying the respondent is incorrect.
[21] Mr Speed submitted that Ms Reive’s evidence lacks any probative value, and is unreliable, if not untruthful. He based this submission, in the main, on inconsistencies between two statements Ms Reive made to the Police: the first on 13
October 2011, and the second on 1 May 2012. Those inconsistencies were as to whether, and when, she learned the respondent’s real name (she referred to the respondent as “CJ”); when, and how, she learned that the respondent was alleged to be involved in the assault on Mr Dawson; and when the incidents she described occurred.
[22] Mr Speed also submitted that Ms Reive’s statements showed that she is motivated by personal animosity towards the respondent, and that she gave an inherently improbable explanation for this animosity. He also submitted that Ms Reive’s evidence is the result of suggestibility, in that she had learned of the alleged assault on Mr Dawson from news reports and had fabricated, or embellished, the respondent’s role in two previous incidents because of her animosity towards him.
[23] Mr Speed further submitted that another indication of the unreliability of Ms Reive’s evidence is that it is not corroborated in any way. Ms Reive does not know the identity of any of the other people who saw, or were involved in, the two incidents she described. Further, there is no evidence of any complaint having been made to the Police as a result of either incident. Accordingly, Ms Reive’s statement cannot be independently verified.
[24] Finally, while he accepted that the two alleged previous incidents were reasonably close in time, Mr Speed submitted that they were not similar; they were
disparate. Because of the matters set out above, Mr Speed submitted, the Court should reject Ms Reive’s evidence as unreliable (at best), if not untruthful. In either case, he submitted, her evidence lacked any probative value and should not be admitted as propensity evidence.
[25] I accept that it is open to a Court to refuse to admit propensity evidence if the Court concludes that it is unreliable, rather than leave it to the jury to decide if it accepts the truthfulness and reliability of the evidence.[5] However, I am satisfied that in the present case Ms Reive’s evidence should not be held inadmissible on the grounds that it is unreliable or untruthful. Her evidence appears to be consistent as to the details of what she says she observed and, in my view, passes the threshold of being sufficiently reliable for it to be given in court, and tested by cross-examination.
[5] See Bedenknecht v R [2010] NZCA 92 and R v A(CA 732/09) [2010] NZCA 124.
[26] Ms Reive’s evidence is of two incidents that are of sufficient frequency, sufficient similarity in their nature, and sufficient connection in time with the alleged attack on Mr Dawson and, if accepted by the jury, has a high probative value in tending to show the respondent’s tendency, notwithstanding his earlier head injuries, to act with sudden violence in certain situations by delivering a violent blow to the face of his victim. It also has probative value in providing support for the evidence of the eye witnesses.
Section 43(4): prejudicial effect
[27] Ms Walker submitted that the probative value of Ms Reive’s evidence outweighs the risk of any prejudicial effect on the respondent, and is not likely to predispose the jury against him. She submitted that the focus of the evidence is necessarily on the similarity of the respondent’s alleged acts, rather than on the consequences for the two earlier victims. She further submitted that Ms Reive’s evidence would only form a small part of the Crown’s evidence, so is not likely to be given disproportionate weight by the jury.
[28] Mr Speed submitted that the evidence would have an unfairly prejudicial effect that outweighs its probative value (which, as noted earlier, he submitted was
minimal). He submitted that it would be difficult, if not impossible, for the respondent to dispute Ms Reive’s evidence, or raise any claim of justification, in the absence of any identification of the alleged victims of the assaults.
[29] I accept Ms Walker’s submission that the probative value of Ms Reive’s evidence is not outweighed by the risk of an unfairly prejudicial effect on the respondent. The matters raised by Mr Speed are all matters which may be put to Ms Reive in cross-examination, and may be covered in counsel’s addresses to the jury. They are also matters which will be covered by the trial Judge in summing up. I conclude that any risk can be well alleviated by appropriate directions.
Result
[30] Ms Reive’s evidence is admissible as propensity evidence.
Andrews J
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