R v Preston

[2015] NZHC 120

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 WELLINGTON REGISTRY

CRI-2014-485-4345

[2015] NZHC 120

THE QUEEN

v

MICHAEL EDWIN PRESTON

Hearing:	3 February 2015
Counsel:	G J Burston and E M Light for Crown L M Sziranyi and S J Gill for Defendant
Judgment:	10 February 2015

JUDGMENT OF WILLIAMS J

[1]    Michael Preston is accused of murdering his ex-wife Fan Rongmei (known as Mei). Ms Fan was a Chinese  national  with  (I  think)  permanent  residency  in  New Zealand.

[2]    The Crown has filed applications under s 101 of the Criminal Procedure Act 2011 in order to test the admissibility of certain categories of evidence it wishes to call at trial. The categories may be described briefly as follows:

(a)the content of a police evidential interview of the defendant on 3 April 2014;

R v PRESTON [2015] NZHC 120 [10 February 2015]

(b)the formal statement of New Zealand Herald reporter, Samuel Boyer in relation to an interview he conducted with the defendant;

(c)propensity evidence of violence in the relationship by Chen Li Ping (a friend of the deceased) and Fan Chang Hong (a niece of the deceased); and

(d)(mostly) hearsay evidence of a history of violence in the relationship between the victim and the defendant.

[3]    It has proved unnecessary for me to deal with items (a) and (d) in this judgment. Counsel have indicated there are further discussions to be had in respect of those matters and there is an expectation that either complete agreement or some lesser but still useful level of agreement will be achieved. Those applications are adjourned accordingly to be dealt with in later fixtures if necessary.

[4]    In the meantime, I will address the remaining applications (b) and (c) in this judgment.

The allegations

[5]    The Crown says Mr Preston murdered his ex-wife on 8 November 2013. The victim’s body was found in her Miramar home some days later with serious stab wounds to the head and neck, as well as defensive incision injuries to her hands and arms. The knife was left imbedded in her neck where she lay.

[6]    The case against Mr Preston is circumstantial. There is some DNA evidence on the knife linking the defendant to it but the linkage, as far as I can tell, is not strong. There is evidence of the victim’s blood in the defendant’s car including micro droplets that may have transferred from the defendant’s hand. There is CCTV footage locating the defendant in Miramar (the suburb in which the victim lived) on the date of the victim’s death. In police interviews, the defendant, unaware of this evidence, denied being in Miramar on the day. There is also independent evidence from witnesses locating the defendant in Miramar close by the victim’s home on the relevant day and

a sighting on that day by one witness who allegedly saw the defendant driving his car while wearing a wig.

[7]    The Crown case is that the relationship was conflictual when the couple were together and there was ongoing conflict over day to day care of their two young children after separation. Prior to the victim’s death, the defendant had actively encouraged authorities to remove her from the country. This was, the Crown says, in pursuit of the defendant’s objective of obtaining full custody of the children. The defendant failed in his attempts at encouraging the victim’s removal.

[8]    Shortly after 9pm on the night before the victim was killed, the defendant was served with a temporary protection order in relation to Ms Fan. This followed an incident on 5 November 2013 in which it was alleged the defendant breached a trespass notice. The Crown says that service of the temporary protection order caused the defendant mistakenly to believe that he would thereafter be prevented from seeing the children.

[9]    The Crown case is that the defendant felt driven to murder the victim because of his failure to obtain care of the children to that point, and his fear that the protection order would make it impossible to obtain care of them in the future.

Category (b): the formal statement of Samuel Boyer

[10]   Mr Boyer was at the relevant time, a crime reporter with the New Zealand Herald newspaper. He interviewed the defendant during the course of the murder investigation but before the defendant was charged. He recorded the relevant phone discussion. It lasted for about 15 minutes. It was the second, and shorter, of two phone interviews Mr Boyer undertook of the defendant on that day.

[11]   At the outset, the defendant indicated that he wanted to check with his lawyers before speaking to Mr Boyer. He subsequently rang Mr Boyer back indicating his lawyers had advised him not to discuss anything with the press. The defendant talked anyway and at length first for about 50 minutes and then for 15 minutes.

[12]   During the course of the second 15 minute interview, the following potentially significant statements were made:

Preston:Their theory about someone changing into the, inside the house …. I don’t necessarily believe it. But if it was true then that person probably also spent time cleaning up. Because they haven’t found a scrap of evidence other than the suggestion that there might have been a disguise, and unfortunately I don’t know what that actually means, you know. Did Mei have, um, make-up under her fingers or something? Because sure as hell she put up a fight. Absolutely no question about it – the wounds on her body and hands. She put up one hell of a fight, which of course is no doubt why they stripped me down to my undies and photographed me back, front and got a doctor, an actual doctor, to come in and swab my mouth and swab my hands, and so on, and clip my fingers. <crying> And they still don’t know who’s done it. So as I say, Sam, this is my life until somehow they figure this out.

Boyer:     Have they showed you photos or something of the scene?

Preston: No I don’t know anything. Well actually I live in a Housing Corp house, and we live in the same area, so our Housing Corp case manager shall we say, or house manager or whatever you want to call it, has always been the same. And her and I have always had a really good relationship. She often comes around, we have a cup of tea and we share our problems … We often swap stories. So anyway, she came around several weeks after I’d, um, done it and she started telling me bits and pieces about, because she’d been the case manager or residential manager or, I don’t know what her title is. She was taken into the house, I can’t remember know why. But she told me what she saw. The body had long gone, but listening to her, yeah, it’s a little confusing. [emphasis added]

[13]   The Crown argues that the highlighted phrase “several weeks after I’d, um, done it” is an inadvertent confession. It is therefore relevant and there is no basis upon which it can be excluded.

[14]   Mr Gill for the defendant argues that the alleged confession is not admissible because it was improperly obtained and therefore should be excluded pursuant to s 30 of the Evidence Act 2006. The defence relies in particular on the decision of Dobson J in R v Roper.1 That case related to admissions offered informally by the defendant to prison guards. Dobson J considered that the defendant should have been warned

1      R v Roper [2012] NZHC 1855.

before prison guards engaged with him over the subject of his responsibility for the crime. His Honour said:2

However, in this particular context, I consider that fairness enabled Mr Roper to assume that such a warning would be given, when the exchanges occurred in a relaxed and unstructured context where it was most unlikely to occur to him that any statements he made might be used in evidence against him. On balance, I am sufficiently uneasy about the circumstances in which the statements were made to treat them as unfairly obtained for the purposes of  s 30.

[15]   In my view, evidence of the Boyer interview is clearly admissible. The words are clear in the recording. They say what they say. They are capable of bearing the meaning the Crown advances. They may also of course, be nothing more than an innocent slip of the tongue, but that judgment will always be for the jury, as long as a reasonable jury could take the view that the words did represent a confession. That is certainly the case here. The evidence is thus relevant.

[16]   It cannot be argued that the evidence was improperly obtained in terms of     s 30(2)(a). This situation is distinguishable from that in Roper. In that case, the context of the defendant’s incarceration and the authority held by the prison staff over him all suggest that certain standards of propriety ought to have been maintained when the defendant’s responsibility for the offence in question was discussed. In short, the situation in that case was somewhat analogous to a police interview, and if the police had sought to tender such an admission, there would be no question that the admission was improperly obtained.

[17]   None of that context applies in this case. The defendant was free to speak or not speak to the reporter as he wished. Even after he received legal advice to the contrary, the defendant chose to speak. The reporter exercised no power over him as an agent of the prosecution authority, or more generally as a public official. The defendant can only have known that the comments he made to Mr Boyer would be recorded and used in his reporting of the case. Indeed the defendant rang Mr Boyer the next day to confirm that he had filed a report because the defendant could not find it in the online version of the newspaper.

2 At [33].

[18]   If the obligations of propriety in obtaining statements of defendants depend on context, with police interviews at one end of the spectrum and casual conversations with family or friends is at the other end, then the context in this case is unquestionably towards the informal and obligation-free end of the spectrum.

[19]   I do not see any basis upon which Mr Boyer was obliged to warn the defendant in terms of paragraph (2) of the Chief Justice’s Practice Note on Police Questioning.

Category (c): propensity evidence

[20]   The Crown wishes to lead the propensity evidence of Fan Chang Hong and Chen Li Ping.

[21]Ms Fan it will be recalled is the victim’s niece and Ms Chang, a friend.

[22]   Ms Fan’s evidence relates to an incident involving the victim and the defendant on the balcony of her aunt’s apartment in Shenzen, China:

I saw them fighting with each other using fists on at least four occasions and these all happened at home at the 5th floor of block A, Bin Fen Times Homeland, Dongnen Middle Road, Luohu District, Shenzen. But I cannot recall exactly the cause of each fight; this was also due to my limited English, so the communication was not smooth. The first time: it was in the balcony at home and Michael was pushing Mei from behind with force trying to push her over and down to the ground below. At the most dangerous moment Mei’s upper body was already over the balcony.

[23]   Ms Chen also refers to such an incident, though it is unclear whether the reference is to the same or a different incident. She will say:

… the last time I met him [Michael] was because my former husband received a message from Michael saying that Michael and Mei were in a quarrel, asking friends to go there to mediate, so my former husband and I went. When we arrived at the ground floor, we heard security personnel saying police had been called many times during the course of the quarrel. On that occasion Mei told me that she was held by Michael by the neck and pushed outwards from the 5th floor balcony (or the window, I can’t recall the details), and half of her body was hanging outside.

[24]Ms Fan can also give evidence about the defendant’s use of knives:

… the second occasion was around early 2006 (around the spring festival), at the time I was very frightened, and there was some folks from home and

friends at home there at the time; Michael was holding a kitchen cleaver and cornered Mei in the family laundry and shut the door, I remember Michael holding the kitchen cleaver in his hands (not yielding it) and moved closer step by step, Mei backed all the way into the laundry, there was no physical contact during the whole time. Afterwards, Michael shut Mei inside, and quarrelled for some time with the door between them, and then Michael let Mei out.

On the fourth occasion I do not remember the time: I returned home after having played with their children downstairs, and found Mei lying on her back in the living room floor, Michael was clad only in a bath towel, sitting on top of Mei near her hip bone, holding a fruit knife about 10 cm long with the knife pointed towards her, I cannot remember exactly where the knife was pointing, and they were in a heated altercation. I remember one of them (I do not remember who) later suffered a nick on an arm during the altercation.

[25]   Sections 40 and 43 of the Evidence Act are engaged. The Crown says that the evidence outlined tends to show the defendant’s propensity to use knives when in conflict with the victim (the knife incidents) and to want to kill the victim when engaged in conflict with her (the balcony incident(s)).

[26]   The prosecution says the issue in dispute in terms of s 43(2) is whether it was the defendant who killed the victim or someone else. The Crown says the evidence is very probative. There are a number of such incidents, suggesting a pattern;3 the knife incidents are very similar to the attack in question in this case;4 and the evidence is of strikingly unusual events in a relationship.5 In addition, similar allegations are being made by two people.6

[27]   Mr Gill on the other hand argues that this sort of evidence is the very sort of evidence that s 43 is aimed at excluding – it will necessarily pre-dispose a jury against the defendant and will be given disproportionate weight by the jury in light of the fact that the events occurred in a geographically and culturally distinct place, a long time ago.

3      Evidence Act, s 43(3)(a).

4      Section 43(3)(c).

5      Section 43(3)(f).

6      Section 43(3)(d).

[28]   Mr Gill argued that the knife incidents are alleged to have occurred seven years ago so there was little connection in time between the alleged offending and the events described in the evidence.7

[29]   The evidence in relation to the balcony incident(s) is problematic, Mr Gill submits, not just because of the gap in time, but also because it has insufficient similarity to the allegations in this case. There was no knife involved in those incidents.8

[30]   These factors together, Mr Gill submits, make the probative value of this evidence minimal but the prejudicial effect through unfair pre-disposition very great indeed.

[31]   I agree that the evidence tends to show a propensity in the defendant to want to, or at least threaten to kill the victim in the context of conflicts in the relationship and to be prepared to use a knife in such conflicts. I also agree that evidence of this propensity is relevant to the issue in the case – that is whether it was the defendant who killed the deceased. I see no merit in the suggestion that the evidence has little probative value because it relates to events in China rather than New Zealand, but did they occur too long ago to be of sufficient probative value? And given the age of the evidence, would admitting it have an unfairly prejudicial effect on the defence?

[32]   In my view, this propensity evidence is not so old as to produce unfair prejudice to the defendant. The first reason is that this is propensity evidence in relation to the victim herself. It does not relate to the experiences of a third party. A seven year gap must be seen as rather less significant when the victim in all cases is the same and when the relevant parties are constantly interacting throughout that time.

[33]   The second reason is that although chronologically there is indeed a seven year gap the relationship between the defendant and the deceased was rather more complex than that. There is evidence of intense conflict between the defendant and the deceased throughout that seven year period, both in the marriage and after separation. There is

7      Section 43(3)(b).

8      Section 43(3)(c).

also a gap of one year during which the defendant and children were in New Zealand but the deceased was in China trying to gain entry to New Zealand (in the face of opposition from the defendant). That should arguably be deducted from the overall calculation.

[34]   This it seems was a tempestuous on again/off again relationship until final separation in October 2012. After separation, the conflict continued over care of the children, perhaps even at an intensified level. It cannot therefore be said that over the years, the triggers for the behaviour reflected in the propensity evidence reduced in significance. On the contrary, it may be argued that they increased.

[35]   The Crown argues that by 7 November 2013, and the service of a temporary protection order, the intense feelings that triggered the balcony and knife incidents behaviour welled up again in 2013 when the defendant came to fear loss of contact with the children. The linkages are, in my view, available to be drawn.

[36]   As the Court of Appeal said in Rhodes v R, the analysis is not simply a mechanical identification of points of similarity and difference between the propensity evidence and current allegations, but to step back and assess also in a more holistic way whether the propensity evidence is genuinely and logically relevant to the issues in dispute.9 An overall assessment is required.

[37]   When one steps back and looks at the true nature of the way in which these parties related both during and after their marriage, evidence showing the defendant was prepared to threaten the deceased by holding her over a balcony railing in an apartment five stories up, and was equally prepared to use a weapon in their conflicts, will be both relevant and genuinely probative in relation to whether the defendant was the one who killed the victim, even when the events occurred seven years ago.

[38]   In this case, the prejudice to the defence arises out of the legitimately probative value of the evidence. It does not arise by virtue of any tendency in it to distract the jury from its true task. It is therefore permissible prejudice and not unfair.

9      Rhodes v R [2012] NZCA 269 at [31].

[39]   The defence will no doubt submit in final address that the evidence is too old and too different to be given any weight, and it will be the trial Judge’s task to warn the jury about the dangers of fixating on propensity evidence. The defendant’s fair trial rights will be protected by these means.

Conclusion

[40]Accordingly, I allow the Crown’s applications in respect of evidence categories

(b) and (c).

Williams J

Solicitors:

Crown Law, Wellington