R v Peters CA430/05
[2006] NZCA 398
•29 March 2006
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA430/05
CA431/05
THE QUEEN
v
ANTHONY KEVIN PETERS KYLIE DIANE SOUTHON
Hearing: 9 February 2006
Court: Glazebrook, Chambers and O’Regan JJ Counsel: B M Stanaway and A M Toohey for Crown
T W Fournier for Respondent Peters
D I Brown for Respondent Southon
Judgment: 29 March 2006
Reasons: 29 March 2006
JUDGMENT OF THE COURT
A The Solicitor-General’s application for leave to appeal is allowed. B The Solicitor-General’s appeal is allowed.
C An order that there be a joint trial of Peters and Southon on the charge
of murdering Ricky Burnard.
R V PETERS AND ANOR CA CA430/05 29 March 2006
DAn order that the reasons for this judgment not be published in the news media or on the internet or in any other publicly accessible database until final disposition of the trial. Publication in law reports or law digest, however, is permitted.
REASONS
(Given by Chambers J)
A joint trial?
[1] Anthony Peters and Kylie Southon are jointly charged with the murder of
Ricky Burnard. It is the Crown case that they hatched a plan together to kill him.
[2] The Crown wants the accused to be tried together. Ms Southon supports a joint trial, but Mr Peters does not. He wants to be tried separately from Ms Southon
– and after her.
[3] The issue of whether there should be a joint trial came before Harrison J. He ruled, in a reserved decision, that Mr Peters be tried separately from Ms Southon: HC CHCH CRI-2005-009-005245 and CRI-2005-009-005250 4 November 2005.
[4] The Solicitor-General seeks leave to appeal against Harrison J’s decision. Mr Brown, for Ms Southon, supported the application. Mr Fournier, for Mr Peters, opposed it. The sole issue on this appeal is whether Harrison J correctly exercised his discretion.
The High Court judgment
[5] Harrison J accepted that there is a presumption, arising from “a substantial public interest”, that those who are said to have jointly committed a crime should be tried together: at [37]. But that presumption had to be displaced here, he thought,
because of what Ms Southon had said in a videotaped interview with the police. In that interview, Ms Southon said that it was Mr Peters who had fired the shots that killed Mr Burnard. That statement is not admissible against Mr Peters. His Honour considered that it was inevitable, however, that the jury would be influenced by Ms Southon’s statement when considering the case against Mr Peters; no judicial direction could overcome the prejudice.
[6] His Honour’s reasoning is encapsulated in the following paragraphs of his judgment:
[50] The nature and extent of Mr Peters’ participation is a constant, if not pervasive, theme of Mr Southon’s interview. It features consistently through pp 45-102 of the transcript, and includes numerous questions from Detective Darryl Sweeney about Mr Peters’ role. The video will be played to the jury. It will be available, together with a transcript, as an exhibit when they retire. Together, they will constitute the heart of the Crown’s case against Ms Southon. It would be impossible to edit out the offending references while maintaining a coherent narrative from her.
[51] I agree with Mr Fournier that it would be too much to expect of a jury to put a central theme of the Crown’s case and Ms Southon’s defence out of its collective mind when considering the case separately against Mr Peters. It would be an artifice to assume that the jury members could ignore what they had seen and heard in such detail. By the end of the Crown case the uncontradicted essence of Ms Southon’s account of Mr Peters’ role would be a given; it would be ingrained into the psyche of all involved in the trial.
[52] I cannot see how even the most clear and forceful judicial direction would overcome the risk of an injustice. I am satisfied that it would be ‘well nigh impossible for a jury to perform the task of determining guilt or innocence by reference only to the evidence admissible against each accused’ (Brown (supra) at 133 per McMullin J). It would not be a question of ‘understanding…the distinction between admissible and inadmissible evidence’ (Fenton (supra) at para 25) but of the practical impossibility of applying it.
Was the High Court right?
[7] With respect to the judge, we are of the view that his decision was not correct and, in particular, that it is inconsistent with the leading authority in this area, R v Fenton CA223/00 14 September 2000, a decision of the Full Court. In that case, this court upheld a High Court judge’s decision that three young women charged with murder should be jointly tried. One of the young women, Daniella Bowman, had
made a statement to the police which contained an account of what had happened which was significantly at variance with the accounts given by her two co-accused, Katrina and Natalie Fenton. Indeed, this court went so far as to say that “if Ms Bowman’s statement was accepted as true, it was apt totally to undermine [the defences of the Fenton sisters]”: at [8]. Notwithstanding that, this court considered that no miscarriage of justice had arisen from a joint trial. The court considered that fairness had been maintained by reason of the careful directions which the trial judge had given: at [14]-[15] and [25]-[30].
[8] A joint trial in this case is consistent with the principles of Fenton, and in particular with the reasons why joint offending should normally be dealt with in a joint trial, as set out at [25] of Fenton. We also think that the trial dynamics of the present case will be indistinguishable from the trial dynamics of Fenton. The concern here, as it was in Fenton, is that the out of court statement of one accused might improperly be used to bolster the Crown case against a co-accused. But Fenton shows that, by careful trial directions, the risk of such improper reasoning can be minimised, with the consequence that the general public interest in a joint trial for joint offending can be safely recognised.
[9] Harrison J placed much emphasis on R v Brown (1987) 3 CRNZ 132. In that case, this court, at 133, set forth two principles “relevant to the issue of severance”. At [38] of his judgment, Harrison J referred to the second of those two principles:
…where there is such a volume of evidence against one accused, but not the other, that it would be well nigh impossible for a jury to perform the task of determining guilt or innocence by reference only to the evidence admissible against each, and the persuasive value of the inadmissible evidence is out of proportion to the probative value of the admissible evidence, [severance will avoid injustice to one or both].
[10] While we accept that proposition, we do not see it as applicable here. There is not such an imbalance in the evidence against Mr Peters and Ms Southon. We think this case falls within the first principle in Brown, a principle set out in a passage which immediately preceded the sentence cited by Harrison J at [38] of his judgment. The preceding passage in Brown reads as follows:
Before referring in more detail to the evidence against the two men I
mention two factors, referred to by counsel, which are generally relevant to
the issue of severance. The first is that 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 even 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.
[11] The Crown contention in the present case is that this was a joint enterprise. The Crown case is that Mr Peters’s and Ms Southon’s meeting at Mr Burnard’s address in the early hours of 27 April last year was premeditated and pre-planned and that their departure from that address together was in the knowledge that Mr Burnard would pursue them, providing an opportunity for him to be shot. That submission is backed by evidence admissible against Mr Peters. Indeed, Harrison J accepted that there is sufficient evidence for a jury to find Mr Peters guilty of murder. His Honour, after setting out the Crown evidence against Mr Peters, concluded as follows:
[43] In my judgment this circumstantial evidence, taken together, if accepted by a jury, would provide a sufficient basis for a finding of guilt of murder. Mr Fournier did not attempt to argue otherwise. I record there is enough for a jury to find that Messrs Peters and Burnard knew each other well; that Mr Peters had a motive for killing Mr Burnard (he may have been in fear of his own life); that, given his visits to Mr Burnard’s flat early on
27 April, Mr Peters was the driver of the Toyota Celica from which the three shots heard by other witnesses were fired into Mr Burnard’s body; and that he either fired the gun himself or assisted another to do so.
[44] Mr Peters’ conduct and statement made after the shooting are also inculpatory. A jury could find that it was Mr Peters who burned his vehicle on 29 April, for the purpose of destroying incriminating evidence, and that his statements to Ms Hotham and Ms Flood amount to admissions of guilt.
[12] We agree with that summary. In our view, there is reasonably strong evidence that Mr Peters was involved in the killing. There is also evidence from which the jury could conclude that the murder had been planned. In light of that, we consider that the present case falls within the first category in Brown (quoted above at [10]) rather than the second category referred to by Harrison J.
[13] Mr Stanaway, for the Solicitor-General, sought to distinguish Brown. First, he noted that Brown was not a “joint venture” case. He referred to the following passage in Brown (at 135):
To return to the principles earlier stated, it is relevant to note that this is not a case where the Crown suggests that the two men set out to injure the deceased on a joint venture or common enterprise. The thrust is the other way.
[14] We agree that this is a distinguishing factor.
[15] Secondly, Mr Stanaway noted that the Brown court had itself acknowledged that the circumstances of the case were “very unusual”: at 135. He also referred us to R v Gage CA149/04 6 October 2004, where this court referred to Brown as an extreme case: at [24]. We agree that Brown was a very unusual case. We do not see the present case as being similarly so unusual.
[16] Thirdly, Mr Stanaway referred us to R v Greig CA375/01 2 May 2002. He submitted that the trial dynamics in that case were very similar to the expected trial dynamics in the present case, and indeed much closer than Brown. In Greig, Messrs McManaway and Greig were charged with the murder of Keri Stevens. Mr McManaway made a lengthy statement on arrest inculpating Mr Greig. Mr Greig declined to make a statement or comment when interviewed by the police, except to deny that he had been at Ms Stevens’s house on the relevant night. On appeal, Mr Greig, who was found guilty of murder, complained that a joint trial had meant that he had been exposed to cross-examination not only by Crown counsel but also by counsel for Mr McManaway. He had further been exposed to a hostile closing address by counsel for Mr McManaway, who had set out to improve the position of his client by arguing that Mr Greig was the principal offender and the person with murderous intent. He also complained that, as a consequence of the joint trial, the jury had been exposed to evidence which was inadmissible against him and admissible only against Mr McManaway, and which was highly prejudicial.
[17] These complaints were not successful and the appeal was dismissed. In the course of the reasons for judgment, this court reiterated the principles in Fenton. This court said that the failure of trial counsel to pursue a severance application did not give rise to a miscarriage of justice. That was because, in this court’s view, any application for severance of the trials “was bound to fail”: at [15]. We agree with Mr Stanaway that that case is closer than Brown to the overall circumstances of the present case.
[18] We are satisfied that appropriate judicial directions can mitigate the risk of injustice to Mr Peters. While it will be a matter for the trial judge, we would recommend that he or she adopt the course taken by the trial judge in Fenton (as approved by this court). The following steps should be considered:
(a) Before Ms Southon’s statement is played to the jury, a warning should be given that it is admissible only with respect to the case against her and is not admissible with respect to the case against Mr Peters. That warning, with brief reasons therefor, should be recorded in the trial transcript.
(b)The judge should be careful to sum up the two cases separately. This would seem to be a case where a written question trail is sensible, so that the different cases against each accused can be emphasised. If that course is adopted, it would be sensible for the judge to repeat in that question trail the warning prohibiting the use of Ms Southon’s statement when considering the case against Mr Peters. This document could also perhaps list the relevant evidence (issue by issue) with relation to each accused separately.
(c) It would be highly desirable for the jury to be given the transcript of evidence in this case. That is for two reasons. First, they will then have before them twice in written form (once in the transcript, and again in the question trail) the warning against improper use of Ms Southon’s statement. Secondly, they will then have all the evidence before them in the jury room, not just the transcript of Ms Southon’s videotaped statement. The judge should consider giving transcript references in the question trail: see R v Taylor (2005)
21 CRNZ 1035 at [128]-[136].
[19] We note in passing that some of the safeguards referred to in [18] above (question trails with written warnings and provision of the transcript) were not part of trial practice when Brown was decided.
[20] If appropriate steps are taken by the trial judge to ensure the jury is properly informed about the evidence which can be taken into account in respect of Mr Peters and Ms Southon respectively, we are satisfied that a joint trial will be fair for both of them.
Solicitors:
Crown Law Office, Wellington
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