R v Pitman HC Whangarei CRI 2006-088-2849

[2007] NZHC 2038

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-088-002849

THE QUEEN

v

WHARE JUNIOR PITMAN

Hearing:         23 August 2007

Counsel:         K R Thomas and B M O’Connor for Crown

A B Fairley and N S Leader for Accused

Judgment:      23 August 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

R V PITMAN HC WHA CRI 2006-088-002849  23 August 2007

Introduction

[1]      Mr Pitman has been charged with manslaughter arising out of an incident which occurred at about 5am on 16 July 2006.     He is due to be tried during the week of 10 September 2007.

[2]      A pre-trial application has been made on behalf of Mr Pitman, by Mr Fairley. A challenge is made to the admissibility of some of the evidence that the Crown seeks to lead at trial.

[3]      A number of issues were raised pre-trial, some of which have been resolved by agreement as to appropriate editing of a statement made by the accused to the Police  and  also  of  evidence  to  be  given  to  the  constable  who  conducted  the interview.  There are two issues remaining, both of which arise out of the statement made to the Police.  I focus solely on those two issues.

Background to the challenges

[4]      The statement was made in the course of an interview with Constable Henare at the Whangarei Police Station.  That interview began at 5.53am on 16 July 2006 and concluded at 10.58am.

[5]      In substance, the Crown case is that Mr Pitman travelled to Vine Street at about 5.00am on 16 July 2006 to meet his girlfriend, who was in a nightclub.  Mr Pitman had been working a nightshift and was sober.

[6]      The deceased, Mr Anaru Tamahana, had previously been in a relationship with the accused’s girlfriend.  Around the time the accused arrived in Vine Street, Mr  Tamahana  had  been  both  abusive  and  physically  aggressive  towards  the accused’s girlfriend.

[7]      The Crown contends that, as a result of learning of what had happened, there was a confrontation involving Mr Pitman and Mr Tamahana.  The Crown contends

that it is relevant to what occurred during that confrontation that Mr Pitman is a skilled boxer, having trained in the sport for many years and having won various awards as a junior boxer.

[8]      There were two parts to the altercation.   The first occurred when punches were exchanged while the combatants were standing.  The second occurred once Mr Tamahana was on the ground and the accused was on top of him.  The challenges to the evidence can be seen in that context.

[9]      I add, for completeness, that there will be a live issue at trial over whether the death of Mr Tamahana was caused by an unlawful act of assault on the part of Mr Pitman.   It is contended that Mr Pitman acted in self-defence in the course of the physical altercation.

Issue 1: Evidence relevant to self-defence

[10]     The  first  issue  raised  by  Mr  Fairley  concerns  that  part  of  Mr  Pitman’s statement which responded to a question from Constable Henare as to whether the deceased through any punches at Mr Pitman after he had fallen to the ground.

[11]     Mr Pitman’s response was

“No he didn’t have a chance, like I was saying.  I let him hit first so I got a chance to say it was self-defence.  I was charged with assaulting a fella about one year ago in Hedley Place who is my Mum’s boyfriend, Kevin Waiomio, is his name.   I tried to plead self-defence but they called it that I was an experienced fighter.  I was a bit back offish but I didn’t want to back off to get a hiding”.

[12]     Mr Fairley’s concern is that the jury may misuse that evidence as evidence of a propensity on the part of Mr Pitman to involve himself in a fight of that nature.  He is also concerned about the possibility of the jury learning of the previous charge.

[13]     In  response,  Mr  Thomas,  contends  that  the  answer  was  a  spontaneous utterance, which answered specifically a proper question posed by the constable during the interview and that the answer is probative of Mr Pitman’s understanding

of self-defence explains why he says the deceased did not throw any punches once he was on the ground.

[14]     There  are  two  aspects  to  this  particular  challenge.    Both  relate  to  the balancing of the probative value of evidence against unfairly prejudicial effects.

[15]     It is accepted by Mr Fairley that the evidence is relevant for the purposes of s 7(3) of the Evidence Act 2006 (the Act), in the sense that it has a tendency to prove or  disprove  anything  of  consequence  to  determination  of  the  proceeding.    Mr Pitman’s answer is relevant both to the subjective element and as to the reasonable force required in respect of self-defence.

[16]     However, s 8 of the Act gives a Judge a discretion to exclude evidence.  It is stated  in  reasonably  absolute  terms,  in  the  sense  that  a  Judge  “must”  exclude evidence if its probative value is outweighed by the risk that the evidence will have an  unfairly  prejudicial  effect  on  the  proceeding:  s 8(1)  –  my  emphasis.     In determining whether the probative value of the evidence is outweighed by that risk, in a criminal proceeding, the Judge must also take account of the right to the defendant to offer an effective defence: s 8(2).

[17]     The terms of s 8 of the  Act can be contrasted to the balancing exercise required  in  respect  of  propensity  evidence  offered  in  a  criminal  proceeding. Section 43(1) of the Act poses a less stringent test for exclusion of the evidence. Propensity evidence can be admitted only if the probative value, in relation to an issue in dispute, “outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant”.

[18]     In making the s 43(1) assessment a Judge must consider, among other things, whether the evidence is likely to unfairly predispose the  fact  finder against the defendant and whether the fact finder will tend to give disproportionate weight in reaching a verdict, to evidence of other acts or omissions: s 43(4).

[19]     The way in which those similar concepts are expressed in different parts of the Act suggests to me that a higher threshold is required to exclude evidence under s 8.

[20]     In this particular case, I am satisfied that the evidence is probative.  While it is capable of being used by a jury in a manner that could have an unfairly prejudicial effect on the accused’s case, that risk can, in this particular case, be managed by judicial directions.

[21]     The first direction would be to ensure that the evidence is only to be used in respect of those aspects of self-defence which formed the basis of the question put by Constable Henare to Mr Pitman.  In other words, it would be relevant to explaining the accused’s knowledge of the concept of self-defence and as to his reason as to why the deceased did not throw any punches at him.

[22]     The second part of the direction would need to make clear that the jury could not use the evidence to demonstrate that, because Mr Pitman had assaulted someone on a previous occasion, it must follow that he had done so on this occasion. Propensity reasoning of that type would be illegitimate as clearly, on the lesser test set out in s 43 of the Act, the evidence would be likely to unfairly predispose the fact finder against the defendant and there would be a risk of the fact finder giving disproportionate weight to that evidence on that basis.  In making that observation I assume (without deciding the point) that the evidence could be admitted for propensity purposes: a doubtful proposition.

[23]     I leave open the precise words to be used by the trial Judge to convey those directions.  As I pointed out to Mr Fairley, it would not be helpful to the defence if the Judge were to explain the latter issue in terms of propensity evidence under the Act.  However, a direction could be fashioned to make clear that the evidence was not to be used to suggest in any way that Mr Pitman was more likely on this occasion to have committed assault than not.  It is better that the trial Judge address that issue having regard to the trial dynamics at the time of summing up.

Issue 2: Evidence of tendency to hit to the head

[24]     The second issue relates to a later question in the same statement.  Constable

Henare asked “How did Anaru’s shirt come off?” Mr Pitman’s answer was

“I don’t know how his shirt came off, I was concentrating on his face.  My uncle used to say you’re a headhunter because I always go for the head.  He says I got to work the body more”.

The context in which that answer was given comes from earlier comments in the statement relating to the uncle having trained Mr Pitman, as a boxer, in a gym.

[25]     Mr Fairley’s point is that the word “headhunter” is colourful and possibly emotive in nature.  Secondly, he submits it is a long way removed from a street fight to suggest that Mr Pitman’s actions in boxing were likely to be reflected in the way he fought on this occasion.

[26]     The final point Mr Fairley made was that the initial answer was sufficient to respond to the question asked.   In other words, the fact that Mr Pitman admitted concentrating on the deceased’s face was sufficient for the jury to understand the nature of the answer.

[27]     Mr Thomas raised two arguments in response.  The first was that Mr Pitman had effectively adopted the uncle’s statement to explain his own view of his style of fighting.  The second was that, if removed, the second part of the answer could leave open the true context of the earlier portion, highlighting the prospect that the jury could misinterpret what had been said.

[28]     I deal with the latter point first.   What was meant by the accused in the context of “concentrating on his face” will need to be assessed by the jury against the totality of the evidence available to them.   The jury will have video surveillance evidence of what actually occurred; so they will be able to see the incident as it happened.   The jury will also have evidence from eye witnesses.   There will be evidence from the pathologist indicating those parts of the deceased’s body that were struck.  In addition, the jury will have Mr Pitman’s statement.

[29]     In  the  context  of  what  the  accused  said  in  his  statement  and  the  other evidence, it is inconceivable that the jury could find that the term “concentrating on his face” meant anything other than concentrating on the face for the purpose of striking blows.

[30]     Having reached that conclusion, the probative value of the second part of the answer is limited, because it adds little, if anything, to the evidence the Crown will advance on that topic.  I am satisfied that there is a risk that admission of the second part  of  that  answer  will  have  an  unfairly  prejudicial  effect  on  the  criminal proceeding.

[31]     The second aspect concerns adoption of the statement as his own.  My view is that the answer is equivocal.  It is inappropriate to go through a written statement taken from an accused who appears to be, at least, partially illiterate in a manner which analyses the grammatical structure of sentences.  In my view, the benefit of the doubt ought to be given to Mr Pitman, so that I treat that part of the statement as an aside or a “throw away” line, as opposed to an adoption of a particular comment.

[32]     Once again, in any event, the probative nature of the evidence is limited and I have no hesitation in holding that for s 8 purposes, the prejudicial effects outweigh that probative value.

Result

[33]     For those reasons,

a)       the answer to the question set out at page 10 of the statement relating to Constable Henare’s question, “After you threw the punches and the victim fell to the ground, did Anaru throw any punches back?” is admissible, subject to the directions which will need to be given to the jury by the Judge.

b)I rule  inadmissible  the  answer  given  at  page  11,  that  part  of  the answer  in  which  it  is  recorded  “My  uncle  used  to  say  you’re  a

headhunter because I always go for the head.  He says I got to work the body more”.

Subsidiary issues

[34]     I deal with two subsidiary issues.

[35]     A  bail  variation  has  been  sought  by  Mr  Pitman  to  enable  him  to  stay overnight in Whangarei to consult with Mr Fairley tomorrow morning.  Ordinarily, he is remanded on strict terms of bail to reside in Auckland.

[36]     It has been drawn to my attention that a variation sought by consent in respect of the Auckland residential address does not appear to have been activated on the Court record.  Accordingly, I will also vary that order.

[37]     The bail terms will be varied so that Mr Pitman shall reside at 16 Norana Avenue, Mangere, except for tonight when he may reside at 11A Hedley Place, Whangarei with his mother pending his consultation with Mr Fairley overnight.  He shall return to Auckland tomorrow.   Save as expressly varied, the terms of bail previously granted remain in force.

[38]     The second point relates to the provision of a witness list requested by Mr

Fairley.  Mr Thomas shall provide such a list to Mr Fairley by 5.00pm on 29 August

2007.

P R Heath J