R v Peters
[2007] NZCA 180
•7 May 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA276/06
CA364/06
[2007] NZCA 180THE QUEEN
v
ANTHONY KEVIN PETERS
KYLIE DIANE SOUTHONHearing:7 March 2007
Court:William Young P, Robertson and Wilson JJ
Counsel:T W Fournier for Appellant Mr Peters
P H B Hall and D I Brown for Appellant Ms Southon
B M Stanaway for Crown
Judgment:7 May 2007 at 11 am
JUDGMENT OF THE COURT
A MR PETERS’ APPEAL AGAINST CONVICTION IS DISMISSED.
B Ms Southon’s appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Table of Contents
Para No
INTRODUCTION [1]
ISSUES [3]
FACTUAL BACKGROUND [6]
SEVERANCE [11]
MR PETERS’ APPEAL [14]
MISS SOUTHON’S APPEAL [34]
(I) THE TWO POSSIBILITIES AS TO GUILT [34]
(II) VERDICTS AGAINST THE WEIGHT OF EVIDENCE [47]
(A) THE PRECONCEIVED PLAN [48]
(B) THE ADMISSIBILITY OF MR HICKS’ EVIDENCE [62]
(III) THE ORDER OF CROSS-EXAMINATION [72]
(IV) CROSS-EXAMINATION [77]
(V) MS MYERS’ PREVIOUS STATEMENT [84]
CONCLUSION ON CONVICTION [89]
APPEAL AGAINST SENTENCE [91]
(I) LENGTH OF SENTENCE [91]
(II) MINIMUM NON-PAROLE PERIOD [94]
RESULT [101]Introduction
[1] Mr Peters and Ms Southon were jointly charged with the murder of Ricky Burnard. At trial each was found guilty of manslaughter. Mr Peters was sentenced to ten years’ imprisonment with a minimum non-parole period of five years. Ms Southon was sentenced to seven years’ imprisonment with a minimum non parole period of three and a half years.
[2] They both appeal against conviction and Ms Southon appeals against her sentence.
Issues
[3] Mr Peters appeals on the basis that there was a substantial miscarriage of justice because there was a joint trial.
[4] Ms Southon’s conviction appeal is advanced on the basis that:
(a) the jury’s verdict was unsupportable on the evidence;
(b)she was prejudiced by late disclosure of pivotal evidence;
(c)various trial rulings were unfair or wrong in law; and
(d)the Judge failed to direct properly on the status of out of court statements made by Mr Peters concerning her involvement.
[5] Ms Southon’s appeal against sentence is on the basis that the finite sentence was manifestly excessive and the imposition of a minimum non-parole period was an inappropriate exercise of discretion.
Factual background
[6] Ms Southon had known Mr Burnard for about ten years during which time he had frequently threatened and assaulted her. In March/April 2005, Mr Burnard had attacked Ms Southon with a baseball bat requiring her admission to hospital because of a collapsed lung. As a result of a further attack on 22 April 2005, the police were called to Ms Southon's address, but she would not lay a complaint.
[7] Mr Peters was also acquainted with Mr Burnard. Mr Peters had lived at Mr Burnard’s house for a period and it was suggested that he had assisted Mr Burnard in a methamphetamine distribution ring. The two men had a falling out in April 2005 and Mr Burnard pursued Mr Peters for payment of an alleged debt.
[8] In the weekend prior to his death, Mr Burnard made threats to Mr Peters’ former partner and their children.
[9] The first prong of the Crown case was the Mr Peters and Ms Southon had decided together to kill Mr Burnard. It was contended that on the night of 26/27 April 2005, Ms Southon lured Mr Burnard out of his house where Mr Peters was waiting in a car with a gun. Ms Southon got into Mr Peter’s car and Mr Burnard followed in his vehicle. The cars collided on several occasions before stopping. Mr Burnard got out of his car, went to the other car and put his hands through the window. The Crown allege Ms Southon held Mr Burnard while Mr Peters continued driving. Mr Peters then shot Mr Burnard at least twice – once in the shoulder and then fatally in the chest. Subsequently the car was turned around and another shot was fired while Mr Burnard was lurching towards a driveway where he collapsed and died.
[10] As an alternative, the Crown submitted that Ms Southon was a secondary party as she had held Mr Burnard while Mr Peters fired the gun. There was no clear delineation between these two theories in the presentation of the case. This became an issue in the appeal.
Severance
[11] Pre-trial, Harrison J heard a number of applications including one by Mr Peters for severance on the basis that he would be substantially prejudiced in a joint trial by the nature and extent of Ms Southon’s out of court statements to the police if they were tried together and the jury heard this evidence. The application was successful: R v Peters & Southon HC CHCH CRI-2005-009-005245 CRI-2005-009-005250 4 November 2005.
[12] The Solicitor-General appealed: R v Peters & Southon CA430/05 CA431/05 29 March 2006. At a hearing on 9 February 2006 Ms Southon supported the Crown’s position that there should be a joint trial. Mr Peters continued to oppose on the basis that he should be tried separately from Ms Southon and tried after her.
[13] This Court granted the Solicitor-General’s application on 22 March 2006. In reasons for judgment delivered on 29 March 2006 the Court concluded that appropriate judicial directions would mitigate the risk of injustice to Mr Peters and suggested practical ways in which this could be achieved.
Mr Peters’ appeal
[14] Mr Peters’ appeal point was neatly summarised by Mr Fournier:
[D]espite the careful directions of Chisholm J the jury was never going to be able to look at the admissible evidence against Mr Peters in isolation from the inadmissible evidence.
[15] Mr Fournier realistically accepted that he was advocating a change of emphasis in the manner in which Courts have dealt with applications for severance where there is an allegation of a joint enterprise. The problems which can arise with the necessary directions have long been recognised but in the balancing exercise such problems have been consistently held to be outweighed by the public interest in the jury making its culpability assessments having the entire picture available. There has been no difference of approach in what are colloquially described as cut-throat defences – a classification which is appropriate in this case.
[16] Counsel focussed attention on two areas:
(a) the video interview by Ms Southon; and
(b)cross-examination of Crown witnesses by Ms Southon’s counsel which elicited evidence prejudicial to Mr Peters.
[17] The starting principle is that when two or more people are charged with offending in a joint enterprise it is in the interests of justice in ascertaining the truth that they should be tried together: R v Fenton CA223/00 CA299/00 14 September 2000. The principle was restated in R v Hartley [2007] NZCA 31. It is not an inevitable or absolute rule, but co-accused will be tried separately only in rare cases. Nothing has been advanced which suggests that this case falls into that narrow category. The mere fact that prejudice might arise by reason of each of the accused inculpating the other in putting forward their own defence is an insufficient ground.
[18] The Court does, however, have to be vigilant to ensure that there was a proper and sufficient narrative of admissible evidence that each of the accused was involved in the homicide. This analysis was undertaken by Harrison J in his pre-trial hearing and confirmed by this Court. Although much of the evidence was circumstantial, important factors included:
(a) Mr Peters had a motive for killing Mr Burnard;
(b)Mr Peters was the likely driver of the Toyota Celica;
(c)Mr Peters had fired a gun or had assisted someone else to;
(d)Evidence that it was Mr Peters who burnt the Toyota Celica after the killing; and
(e)Statements made by Mr Peters that implicated him in the homicide.
[19] Counsel responsibly accepted that Mr Peters’ conviction was not dependant on the jury referring to Ms Southon’s video. However, Mr Fournier submitted that it would have been impossible for the jury to put that out of consideration as the constant theme of the video, and the cross-examination of various witnesses by Mr Hall, was that Mr Peters was present as the driver of the car and he was the person who fired the shots.
[20] Mr Fournier stressed that not only did the jury see and hear this evidence in the playing of the video interview, they had a transcript of this video with them when they retired. Consistent with the approach of this Court in R v Brown (1987) 3 CRNZ 132 counsel argued that the persuasive value of the inadmissible evidence was out of proportion to the “probative value of the admissible evidence”: at 133. This is a reiteration of the principle earlier enunciated in R v Adriaanse [1977] 2 NZLR 134 at 136.
[21] This Court in the pre-trial appeal held that the factual circumstances in the present case meant that the assistance which Mr Fournier sought from Brown was not really available and overlooked the earlier passage in Brown which stated (at 133):
… where the essence of the case for the Crown is that the accused were engaged on an enterprise or joint venture in the course of which the crime charged was committed then prima facie the accused should be tried jointly event at some risk of prejudice to the case of one of them. Grondkowski v Malinowski [1946] KB 369; R v Iremonger, Kinley and Powell [1964] NZLR 517.
[22] Chisholm J was at pains to direct the jury on the way in which they must approach their task.
[23] At the beginning of the trial he said (at [2]):
You are going to have to decide whether the accused, Mr Peters and Ms Southon, are guilty or not guilty of murdering Mr Burnard on 27 April last year. In effect, members of the jury, we are running two trials in one. There are separate trials for Mr Peters and Ms Southon. This is exceedingly important because, as will be explained to you, evidence that is admissible (or, put another way, that you are allowed to take into account) in relation to one accused is in some cases not admissible against the other accused. This will be explained to you as the trial progresses. So it is very important for you to keep in mind at all times that there are two separate trials, a trial against Mr Peters and a trial against Ms Southon. And ultimately you are going to have to consider separately whether Mr Peters is guilty or not guilty and whether Ms Southon is guilty or not guilty. Those are two entirely independent decisions.
[24] At the point in the evidence when Ms Southon’s video interview was admitted (having pre-advised counsel of his intentions) Chisholm J said to the jury:
A video interview of Ms Southon will now be played. It is only admissible with respect to the case against her and is not admissible with respect to the case against Mr Peters. Put another way, it can only be used for or against Ms Southon. You must not consciously or subconsciously use it against Mr Peters. As already explained, this is because Mr Peters was not present when the interview was conducted and had no ability to comment on it. When I sum up I will explain the use that Mr Peters can make of the statement in defending himself.
[25] In his summing up, Chisholm J specifically referred to the point saying:
[11] There was a suggestion from Mr Fournier that the Crown was trying to have you use Ms Southon’s statements against Mr Peters. Let me explain this. The decision for there to be a joint trial, where there is more than one accused, is made by a Judge. Once that decision is made the Crown and the accused have to live with that decision. I have not detected any suggestion on the part of the Crown that they would like you to depart from the rules as to admissibility that I have been explaining as the trial progresses, and which I will explain further. Indeed, if you look at Mr Stanaway’s written material it does the very opposite. It reinforces the Crown’s interpretation as to the admissibility of evidence in relation to each accused. So there are two separate trials. That is the first general matter I want to discuss with you.
[17] Topic 1. Your approach to the evidence generally. I can be brief on this. Please be logical in the way that you approach the evidence. Do not guess or speculate. Don’t take short cuts. Apply the evidence to each accused separately ensuring that in so doing you are only using evidence that is admissible against that particular accused. When you are dealing with particular topics I suggest that you start from the big picture relating to that topic before going to specific matters. You will probably see that as logical because if you go straight in, zoom into a detailed matter, you may overlook something that you would have picked up during the course of looking at the big picture and which you may well eliminate as you are working towards the specific.
[51] Hopefully you have got after that “Admissibility of Evidence”. You might feel this subject has been hammered and I am sorry about that. I will simply read what I have presented here:
(1)Because there are effectively two trials – one involving Mr Peters and one involving Ms Southon, it is vital that you comply with the rules concerning admissibility of the evidence which have been explained during the course of the trial and are now summarised in the attached table. When considering the evidence of any witness you should check whether there are any admissibility issues by reference to the table.
(2)The use that you can make of the evidence will depend on the context in which you are considering the evidence i.e. whether it is part of:
(i) the Crown’s case against the particular accused; or
(ii)that accused’s defence of himself/herself.
(3)In the context of the Crown’s case against each accused you can only use the evidence that is admissible against the accused. You must not use it against the other accused. For example, anything said by Mr Peters can only be used for or against him and must not be used against Ms Southon. The reverse also applies. Remember that even through Ms Southon discussed Mr Peters’ role in the shooting during her interviews with the police, you cannot use that against Mr Peters because he was not there to contradict or endorse anything that she said.
I want to leave the text for a moment. There was a suggestion during the course of Mr Fournier’s address to you that perhaps you simply would not be able to resist the temptation of resorting to inadmissible evidence, and I can understand Mr Fournier saying that. But you must. You are just not allowed to use any inadmissible evidence. It is as simple as that. There is no question of resisting temptation. It is a basic requirement. Paragraph (4):
The rules are different when it comes to an accused defending himself/herself. The restrictions applying to the Crown’s case (discussed in (3) above) do not apply. An accused is entitled to complete freedom when it comes to defending himself or herself and in so doing he/she can rely on evidence that would not be admissible as part of the Crown’s case. In this case each accused has adduced evidence relating to the character and activities of the other accused. Their previous criminal records have also been disclosed. In defending themselves each accused can rely on this evidence and also evidence about anything said or done by the other accused (including statements by the other accused which would not be admissible as part of the Crown case). They can rely on this evidence to: explain what happened and his or her role; show that the other accused had the propensity to kill Mr Burnard; show that whatever the other accused has said about the matter is unreliable; or for the purpose of defending himself/herself in any other way.
[26] The last comment is a reference to part of the written material which was given to the jury about the legal ingredients involved in the charges, a flow chart as to the consequences of decisions and an analysis of each witness indicating the extent to which the material was admissible against each of the two accused.
[27] Mr Fournier contended this was insufficient especially as matters had changed markedly since this Court considered the matter pre-trial. First, Ms Southon’s defence strategy to show that Mr Peters was the shooter, or at least more likely to be so than her. Secondly, because the evidence of Mr Hicks was admitted and he had not been known at the pre-trial stage.
[28] Two Crown witness ‑ Ms Myers and Mr Pitt ‑ made out-of-court statements implicating Mr Peters and, to a certain extent, exonerating Ms Southon. Both were declared hostile and were cross-examined by both the Crown and Mr Hall. Counsel submitted that this meant material which was irrelevant and inadmissible as against Mr Peters was heard in graphic detail and at length by the jury. By and large there was non-adoption or limited affirmation of previous statements upon which they were cross-examined but Mr Fournier contended that the damage was done to his client by the length and intensity at which the material was ventilated, even although it was inadmissible as the witnesses did not endorse the truth of what they previously said.
[29] The second change was the Crown’s calling of the witness Mr Hicks who had not given evidence at depositions. He did not directly implicate Mr Peters, but the inference to be drawn from Mr Hicks evidence (to the extent that it was accepted by the jury) was that the assistance which had initially been sought from him was no longer necessary as everything “had been taken care of”. This carried the inference that Ms Southon now had alternative arrangements available to her and the further inference that this was Mr Peters.
[30] Despite the careful argument advanced by Mr Fournier, we have not been satisfied that the position had materially altered from that which existed pre-trial. It was clear from the beginning that Ms Southon was going to attribute the killing to Mr Peters. At the hearing of the first appeal, her position was that she sought a joint trial. This is a strong indication that a cut throat defence was planned. The kind of evidence arising from the cross-examination of Ms Myers and Mr Peters is common where cut throat defences are run.
[31] Further, the Crown case was always that Ms Southon had put Mr Peters up to murder. The underlying proposition of fact to that effect associated with the two inferences referred to in [29] were always going to be advanced by the Crown in the same way.
[32] It would only be by concluding that the jury would ignore the very clear and comprehensive directions given to them that there would be a basis for assuming that the directions were not followed. We are not prepared to make that assumption.
[33] Mr Peters’ appeal against conviction is accordingly dismissed.
Miss Southon’s appeal
(i) The two possibilities as to guilt
[34] Although not strictly a ground of appeal or covered in Mr Hall’s written submissions, an issue arose in the course of the hearing as to whether there had been sufficient direction to the jury as to the need for them to be unanimous about the basis upon which Ms Southon was implicated.
[35] At trial, the Crown advanced two possible scenarios. Principally that she was part of a pre-planned arrangement to kill Mr Burnard, or alternatively that she was an active and knowing party to the death in that she held Mr Burnard while Mr Peters fired the gun. The Judge did not direct on separate consequences for each of the alternatives.
[36] It is accepted that Ms Southon could be guilty of culpable homicide on either basis, but did the jury have to be directed that they must be unanimous as to which of the two alternatives applied?
[37] We have concluded that such a direction was not necessary. In each alternative there was no difference as to place, time or nature of the killing but only a variation about the type of involvement under s 66 of the Crimes Act 1961.
[38] Where there are alternative bases, cases can fall into two categories:
(a)where the alternatives relate to which act, out of a series of acts, actually caused the death of the victim; and
(b)where the act causing death is not in dispute, but where the alternatives relate to the surrounding circumstances.
We are satisfied that Ms Southon falls into the second category.
[39] R v Chignell & Walker [1991] 2 NZLR 257 is an example of the first. This Court, following a first trial, allowed appeals against convictions for murder as it was possible that the jury had not been unanimous on when, during the alleged chain of events, the victim died. The Crown argued that the victim may have died at Auckland, either as a result of an act of Ms Chignell or a blow by Mr Walker, or he may have died at Taupo when he was thrown, still alive, over the Huka Falls. The Court noted at 265-266:
The alternatives [put by the Crown] were separated by place and in time, and involved wholly different acts and, it seems likely different intents on the part of each accused. The two cases put by the Crown, murder at Auckland or murder at Taupo, are essentially different yet it is possible that there was no unanimity on either …
Against the background of the complex factual alternatives arising, it was essential that the jury’s mind be directed to the issues of the act or acts causative of death, and of the person or persons responsible for them. They had to be clearly told that they must be unanimous before they could convict on either alternative. Directions were also necessary as to the way in which they should approach their task, and as to the different considerations of the fact and law that applied to each of the alternative charges. (Emphasis added).
[40] This approach was consistent with R v Ramsay [1967] NZLR 1005 (CA) where the victim’s death from asphyxia could have resulted from either a gag inserted by the appellant or the victim’s deep unconsciousness following a head injury: at 1009. This Court allowed an appeal on the basis that the jury had been misdirected. The jury should have been instructed to first identify the act that caused death, and then to determine the state of mind that accompanied that act. The Court (at 1014) distinguished Thabo Meli v R [1954] 1 All ER 373 (PC), saying that that case stood for the proposition that:
… [W]here an intention to kill is established and it is impossible to divide up a course of conduct into separate acts, a crime is not necessary reduced from murder to a lesser crime, merely because an accused is under some misapprehension for a time concerning the particular result which one of the acts in the series might have.
[41] An appeal similar to Ramsay is R v McKeown [1984] 1 NZLR 630 (CA). The appeal was unsuccessful on the facts as the undisputed evidence showed “a series of acts of violence by the appellant, virtually continuous and within a short space of time”. This Court categorised the brief period of violence as an “attack” and found no evidence that the state of mind of the appellant differed between the various acts comprising the attack. In that case, there was no utility in asking the jury to identify the particular act that caused death for the purpose of identifying the appellant’s mens rea at the time of that act: the mens rea would have been the same throughout.
[42] The alternative “surrounding circumstances” classification is demonstrated by R v Menzies CA222/97 16 October 1997, a case similar to that of Ms Southon in that the time, place and cause of death were not disputed, but there were two explanations as to how the death had come about. The appellant’s version of events was that the victim had lunged at him with a knife, wounding him in the stomach. In the ensuing struggle, the appellant ended up lying on top of the victim with her in a headlock. When the victim stopped struggling, the appellant ran into the bathroom where he stayed for a couple of minutes. When he came out, he realised that the victim was dead, and lay down beside her for ten minutes or longer. He claimed that the body was twitching and convulsing, and that he tied an electrical cord around her neck to stop this. While the appellant’s version of events suggested that he acted in self-defence, the Crown’s case was that he intended to kill her and tied the cord around her neck to “finish her off”. The medical evidence was inconclusive as to whether death resulted from the initial headlock or the electrical cord.
[43] To similar effect is the decision of the English Court of Appeal in R v Giannetto [1997] 1 Cr App R 1. The appellant was charged with the murder of his wife. The Crown argued that he either paid someone to murder her, or murdered her himself. The Court held that there was no need for the jury to be unanimous as to the role the appellant played (at 8-9):
There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet.
[44] Where there is more than one possibility for the act causing death, a jury needs to be directed that they must be unanimous as to the causative act, before going on to determine the mens rea in relation to that act (Chignell, Ramsay). This is not necessary where the acts can be seen as part of one course of action (such as the “attack” in McKeown) or as part of a unified plan (Thabo Meli). In those situations, the mens rea is likely to be the same for any of the acts that may have caused death.
[45] Chisholm J was not required to do more than instruct the jury that they had to be unanimous in relation to each verdict. He did this at [9] of his summing up. His flow diagrams made it clear that decisions about facts should precede decisions about guilt. Although the Judge did not labour the point as in Menzies, he “constantly [premised] directions on the footing that the jury had decided that issue one way or the other”.
[46] Ms Southon’s guilt depended on her being encompassed by an aspect of s 66 of the Crimes Act 1961 in a culpable homicide. As was the case in Giannetto, the jury’s verdict is sound even if only some members thought that she procured the services of Mr Peters to kill the victim, provided they all agreed that at the very least she had aided or abetted Mr Peters. It was essential that the jury was unanimous that the essential elements of s 66 had been met, but it was not necessary for the jury to be unanimous as to which scenario applied.
(ii)Verdicts against the weight of evidence
[47] The Crown’s major thesis at trial was that Ms Southon had organised Mr Peters to kill Mr Burnard and that she had lured him out of his house knowing that Mr Peters would be armed. The alternative proposition was that the three people having come into contact with each other, Ms Southon deliberately prevented Mr Burnard making good his escape by either grabbing his wrist or trapping his arm between the window and the doorframe of the car to provide the opportunity for Mr Peters to shoot him.
(a) The preconceived plan
[48] The first approach is heavily reliant on text messaging and intercepted telephone communications both before and after the killing coupled with the evidence from Mr Hicks which was introduced into the trial at a late stage.
[49] Text messaging between the Ms Southon and her partner, Reuben, before and after Mr Burnard’s death, included the following:
(i) Reuben to Southon 2.22.20: “where r u & who with”
(ii)Southon to Reuben 2.29.57: “Sortn out problem. Just nt frm home. Just makn it go away”
(iii)Reuben to Southon 2.31: “When u bak”
(iv)Southon to Reuben 2.31.35: “sortn out problem. Frm a distance. Al gd”
(v)Southon to Reuben 5.10.51: “I,m [sic] fine, problem solvd, wit friend. Getn lift sn. Al gd stevee”
(vi)Southon to Reuben 5.32.15: Al gd. We got our life bk. Love u”
[50] While not questioning the existence of telephone traffic, Mr Hall stressed that it was speculative as to who was using various telephones and for what reason, and that many calls were at times and in circumstances inconsistent with the theory of a planning framework occurring.
[51] Mr Hicks was first interviewed by the police after depositions. It was only during the course of the trial that a decision was made that he would be called.
[52] Mr Hicks was subjected to a rigorous and penetrating cross-examination about his antecedents, and serious challenges were advanced to his reliability and credibility and the nature of his relationship with Ms Southon.
[53] The thrust of Mr Hicks’ evidence was that Ms Southon had raised the possibility of his assistance with regard to the disposal of Mr Burnard, but she later advised that Mr Hicks’ services were no longer required. In a meticulous and detailed way, Mr Hall submitted that Mr Hicks’ evidence was incapable of belief and that without his evidence no jury could reasonably infer that Ms Southon was involved in arranging for Mr Peters to kill Mr Burnard.
[54] We fully appreciate the jury issue which arises from the facts, but acknowledge the alternative arguments which could be advanced. There was undisputed evidence of opportunity and a very compelling narrative with regard to motive in light of the increasingly violent attacks which Ms Southon had been subjected to by Mr Burnard in the weeks prior to his death.
[55] The possibility of a coincidental meeting in the early hours of the morning was a matter for assessment by the jury as was the nature of several telephone calls, particularly a lengthy one a few days before Mr Burnard’s death.
[56] There were the text messages between Ms Southon and her partner, Mr Reuben, which were there for analysis and consideration by the jury (see [49]). These included what amounted to boasting comments by Ms Southon in the days and weeks after the death. The evidence from people who were in or around Stanmore Road when Mr Burnard was shot and the evidence from the pathologist about positioning of Mr Burnard at the time of his death were also before the jury.
[57] The surrounding circumstances (excluding Mr Hicks’ testimony) standing alone was held in the s 347 application proceedings prior to trial to provide a credible narrative from which the jury could be satisfied that the inevitable inference on the totality of the material was a planned arrangement between the two.
[58] As far as Ms Southon being a party is concerned, again we are satisfied that there was a clear evidential base which the jury was entitled to rely upon including Ms Southon’s statements to the police - the exculpatory portions of which were not convincing.
[59] The jury were directed as to how this material could be used and the care the jury needed to exercise in using it.
[60] We agree with the Crown that there was an evidential base. Having been tested on an application pre-trial under s 347 of the Crimes Act 1961 which failed, no further s 347 applications were made during the course of the trial. That is without regard to Mr Hicks’ evidence which we deal with separately below, but when it is included in the mix, the cement holding the blocks becomes stronger.
[61] We do not accept the submission that there was no evidential base. There was admissible material before the jury upon which it was able and entitled to conclude that Ms Southon was criminally implicated in the homicide.
(b)The admissibility of Mr Hicks’ evidence
[62] Mr Hicks was first interviewed by police in December 2005. The interview lasted approximately 15-20 minutes. The recording of this interview was lost and could not be disclosed to counsel. Mr Hicks was interviewed again in January and March 2006. The police did not decide to use Mr Hicks as a witness until the end of March, at the time the January and March interviews were disclosed.
[63] There is no foundation for a suggestion that the late disclosure of Mr Hicks’ potential testimony involved bad faith and nor are we persuaded that any injustice arose. This view is supported by the fact that there was no application for adjournment when the Court advised Mr Hicks would be a witness.
[64] This ground is advanced partially on the basis that timing caused prejudice. Mr Hicks’ appearance at the trial was delayed at the request of counsel for Ms Southon who, even now, does not identify matters upon which there could have been further examination had there been time.
[65] At trial there was a most penetrating cross-examination of this witness and an exposure of many issues not to the credit of Mr Hicks.
[66] We accept that a recording of an interview between Mr Hicks and the police made at an early stage was lost. The ability to cross-examine Mr Hicks was not impeded by the absence of that when there were job sheets and other material available which could be used in the same manner.
[67] The timing of the disclosure by Mr Hicks was not helpful. The absence of the dictaphone recording of what he said for 15 or 20 minutes on the first occasion was unfortunate. However, a month later there was a comprehensive interview on video and a further interview two months after that.
[68] It was submitted that the failure to exclude Mr Hicks’ evidence led to a miscarriage of justice, but the Judge who had heard and seen the witnesses was not persuaded this was the case and we are unable to see any basis to go behind his ruling. The complaint here is more about the potential for prejudice rather than the identification of anything which was to the detriment of Ms Southon.
[69] Three specific issues were raised. First, the possibility that Ms Southon would have taken a different attitude on the severance matter. We are not moved by the submission that Ms Southon was prejudiced by the fact that she would not have supported the Solicitor-General’s application for non-severance in this Court had she known about Mr Hicks’ material and its being called at trial. This complaint was not made at any time during the trial and her position was not a substantial factor in the previous decision of this Court.
[70] Secondly, there is the question of time to investigate matters, but this again is on a theoretical basis rather than with anything concrete. Thirdly, there was a less advantageous tactic with regard to cross-examination because there were only job sheets, and not signed statements or other material which clearly demonstrated that Mr Hicks had adopted what had been recorded by others.
[71] It would have been better if these acts and omissions were not present, but to elevate them to a breach of s 25(a) of the New Zealand Bill of Rights Act 1990 (the minimum right to a fair trial), or s 24(d) (the right to adequate time and facilities to appear) is to misconstrue the situation. We find no substance in this aspect of the appeal.
(iii) The order of cross-examination
[72] Mr Hall wanted to cross-examine Detective Sweeney last. Detective Sweeney was the officer who conducted the two video interviews of Ms Southon and the person who was most closely involved in the collation of text data and intercepted telephone call evidence.
[73] It was in the course of the cross-examination of the detective that matters relating to Ms Southon’s criminal past came before the jury and other material which was generally discreditable of her.
[74] Mr Hall submitted that the interest of fairness required that cross-examination order of defence counsel be reversed so that Ms Southon’s counsel would have the opportunity to repair damage resulting from evidence which emerged from the cross-examination by Mr Peters’ counsel.
[75] Mr Hall noted that a similar application was advanced in respect of Mr Hicks’ evidence and granted. He submits the same rationale should have applied to both applications. Mr Hicks’ evidence, only by implication, related to Mr Peters and it was substantially evidence against Ms Southon.
[76] Similar reasoning might have been applied with regard to Detective Sweeney. We are unable to see, however, what injustice arose from the decision of the trial Judge who was there and involved in the dynamics of the trial. Concern about the damage caused is not tied to any particular factors. Mr Hall was not able to show how the reversal of the order could have lessened the impact of the evidence adduced. We are not satisfied that the Judge’s ruling was incorrect or that any miscarriage could have flowed from it.
(iv) Cross-examination
[77] Detective Legat interviewed Mr Pitts and obtained material that incriminated Mr Peters. However, at trial Mr Pitts did not generally affirm his earlier statements.
[78] Complaint is made about the refusal to allow cross-examination of Detective Sergeant Legat on the basis that the ruling was contrary to the reasoning of this Court in R v Wilding and McKenzie CA104/05 19 May 2005.
[79] Mr Pitts, an associate of Mr Peters, was a thoroughly unsatisfactory witness who was eventually declared hostile. Only to a very limited degree did he adopt any of his previous statements. In Court he claimed that anything he had previously said was because he was wasted on drugs or alcohol and in the circumstances would sign anything put in front of him. Mr Hall nonetheless wanted to establish that Mr Pitts had been put under pressure by the police and refused his rights to counsel. Mr Hall wanted to achieve this by cross-examination of Detective Sergeant Legat, a police officer who had been involved in interviewing Mr Pitts.
[80] The request to cross-examine was refused after objection from Mr Peters’ counsel on the basis that it was an endeavour to undermine the Judge’s direction that Mr Pitts’ statement to the police was not evidence except to the extent that he unequivocally adopted it as true in the witness box.
[81] We do not see this matter as being in the same category as Wilding and McKenzie. In Wilding and McKenzie, Mr McKenzie admitted killing the deceased and asserted that no-one else was involved in the death in an off the record discussion with a police officer. Mr Wilding, the co-accused, sought to lead evidence of the admission through the testimony of the policy officer. Subject to the discretion of the trial Judge, this Court held that Mr Wilding was able to do this.
[82] This case adopted the reasoning in R v Myers [1997] 3 WLR 552 where the House of Lords held that a defendant in a joint trial should be allowed to put voluntary statements made by the other defendant (even though incriminating the maker and not used by the prosecution) to witnesses to whom those statements were made provided that such statements were relevant to the defendant’s defence.
[83] Wilding and McKenzie involved the admissibility at a joint trial of an out of Court admission by a co-accused. In the present case Mr Pitts was not a co-accused, but a person who had made a previous statement implicating Mr Peters which he did not adopt in Court. Wilding and McKenzie does not extend to the cross-examination of witnesses to whom other witnesses, appearing in Court, have made incriminating statements about another accused.
(v)Ms Myers’ previous statement
[84] Ms Myers made a statement to police that Mr Peters confessed to her that he had killed Mr Burnard. Mr Hall wanted to argue that Ms Myers’ statement as to what Mr Peters said partially exonerated Ms Southon, in that it confirmed Ms Southon’s statement that Mr Burnard had been holding her by the hair when shot by Mr Peters.
[85] Ms Myers gave evidence at trial, but was declared a hostile witness having been arrested and brought to Court to testify. During cross-examination, Ms Myers acknowledged her signature on the police statement and some of the statements made, but stopped well short of acknowledging the truth of the whole document.
[86] Mr Hall extensively cross-examined the witness on her previous statement. He sought to have the written statement included as an exhibit. Chisholm J refused.
[87] Mr Hall submitted that the Judge’s failure to admit Ms Myers’ written police statement resulted in a miscarriage of justice.
[88] We are satisfied that the Judge did not err in refusing to admit Ms Myers’ written statement because:
(a)although the statement was prima facie admissible under s 11 of the Evidence Act 1908 it was within the Judge’s discretion to refuse to admit the statement;
(b)the Judge was right to use his discretion to disallow the written statement because Ms Myers’ statement was hearsay. We are satisfied that, although this statement might have gone towards assisting Ms Southon, the statement was not admissible. R v Wilding & McKenzie is distinguishable. In Wilding & McKenzie there was direct evidence available from the officer to whom the admission had been made. In this case Ms Myers recanted on what she told police, so there was no evidence of what Mr Peters had told her.
(c)Ms Myers’ written statement would only have gone to credibility (R v Carrington [1968] NZLR 790) and, in the circumstances of the extensive cross-examination by Mr Hall, was of limited value.
Conclusion on conviction
[89] We are not persuaded that, taken separately or in concert, the issues raised by Mr Hall establish any basis for unease about the safety or reliability of the jury’s conviction. It may well be that on the totality of the available evidence Ms Southon was fortunate that the jury did not return a verdict of murder. We see no basis to conclude that, on either approach to her culpability, Ms Southon was not proven beyond reasonable doubt to have been actively and knowingly involved in the culpable homicide of Mr Burnard.
[90] The appeal is against conviction is accordingly dismissed.
Appeal against sentence
(i) Length of sentence
[91] Mr Hall submitted that the sentence imposed was manifestly excessive because of disparity with the ten year term of imprisonment imposed on Mr Peters. He argued that Ms Southon ought to have been subject to a far lesser sentence because of her comparatively limited involvement.
[92] We are satisfied that the seven year sentence imposed was within the sentencing Judge’s discretion. Contrary to the assertions of Mr Hall, it was open to the Judge to find that Ms Southon was an active participant in the death of Mr Burnard. It was open to the Judge to form the view that, at least, Ms Southon held the deceased while Mr Peters shot him. It was further open to the Judge to find that Ms Southon, at least at the time she was holding the deceased, knew that Mr Peters had a firearm. In such circumstances it was open to the Judge to assess Ms Southon’s culpability as relatively high.
[93] The sentencing Judge recognised that Ms Southon was not as culpable as Mr Peters. This was reflected in the starting points used - eleven years for Mr Peters and eight years for Ms Southon. The differentiation was clearly within the available sentencing discretion and there is no basis to interfere on appeal.
(ii) Minimum non parole period
[94] Mr Hall also challenged the imposition of a minimum non parole period.
[95] Section 86(2) of the Sentencing Act 2002 (inserted by the 2004 Amendment) provides:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
…
(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[96] This Court considered the effect of the 2004 amendment in R v Taueki [2005] 3 NZLR 372. The essence of the inquiry is whether one-third parole eligibility is sufficient to punish, deter and denounce the offending, and to protect the community from the offender: Taueki at [52].
[97] There is no longer a requirement that the Court be satisfied that the circumstances of the offence take it out of the ordinary range of offending of the particular kind (due to the repeal of the previous subs (2) and (3)).
[98] Section 86 applies to circumstances where culpability is high. In this case, Ms Southon held the deceased while Mr Peters (who was sitting right beside Ms Southon) pulled out the gun and shot him, all whilst the deceased pleaded with her to let him go. In such circumstances Ms Southon’s culpability must be viewed as relatively high.
[99] This Court in R v Manukau CA204/04 CA207/04 15 November 2004 at [60] considered that the “narrowness of the margin by which the appellant avoided conviction for murder” was a factor that pointed towards the imposition of a minimum non-parole period for manslaughter sentencing. As noted earlier, the essential elements of murder all appear to have existed.
[100] We are satisfied that the imposition of a three and a half year minimum non-parole period was within the sentencing Judge’s discretion.
Result
[101] Mr Peters’ appeal against conviction is dismissed.
[102] Ms Southon’s appeals against conviction and sentence are dismissed.
Solicitors:
T W Fournier, Christchurch, for Appellant Peters
P H B Hall, Christchurch, for Appellant Southon
Crown Law Office, Wellington
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