R v R HC Rotorua CRI 2005-070-7328
[2007] NZHC 463
•9 May 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2005-070-7328
QUEEN
v
R
Hearing: 8 May 2007
(Heard at Rotorua)
Appearances: RG Ronayne and SJ Bridges for Crown
P Mabey QC and C Tuck for Accused
Judgment: 9 May 2007 at 4:30 pm
JUDGMENT OF ASHER J
This judgment was delivered by me on 9 May 2007 at 4:30 pm pursuant to Rule 540(4) of the High Court Rules
………………………………………..
Registrar/Deputy Registrar
………………………………………..+ Date
Solicitors:
Rynayne Hollister-Jones Lellman PO Box 13063 Tauranga
PG Mabey QC, PO Box 13199 Tauranga
R V R HC ROT CRI 2005-070-7328 9 May 2007
[1] An issue has arisen partway through the trial of the accused, Jason R , for the murder of Andrew Grabner and Teresa Gunn. In the lead up to the trial the Crown became aware of the existence of an affidavit of Teresa Audrey Gunn, prepared and sworn in support of an ex parte application for a protection order, three days before she was killed. The affidavit sought a protection order against the accused.
[2] Counsel have agreed between them that parts of the affidavit are admissible, and other parts which it has been agreed are inadmissible have been removed. However, there remain three parts of the affidavit which counsel cannot agree on. This judgment deals with the admissibility of those three parts of the affidavit. Regrettably, this decision must be delivered immediately, the issue having arisen during the trial.
[3] The application has to be seen against a background where the deceased, Teresa Gunn, and the accused, Jason R , lived together for approximately five years prior to Ms Gunn’s death, and had two children. They had ceased living together as partners some months prior to Ms Gunn’s death. Their relationship had lasted somewhat longer, but it had terminated prior to 8 December 2005 when the affidavit was sworn.
[4] The parts of the affidavit about which there is no contention recite briefly the background to the relationship, and account in detail an incident of abuse and violence during the previous month. Ms Gunn deposed that since the relationship began the Police have been called to the house on at least 12 occasions. She stated that the accused had threatened to kill her and she was fearful that he might hurt other males with whom she associated. She stated that he sent a text to her on
5 December 2005 which read:
Fuc u slut, u an dat cunt u fuckn beta watch u bac. Wht goes round cums round. I’l tel my kids u r dead caus that is wht ur r 2 thm from now on.
A text message on these terms was in fact recorded on the deceased’s mobile phone.
[5] There has also been evidence from other witnesses about her fear of the accused, expressed in the weeks leading up to her death, and of his threats to her.
[6] It does not appear that the fact that the accused killed the two deceased in a knife attack will be at issue. Further, although there may not necessarily be any concession that the requisite intention has been proven, this is not the focus of the defence. Rather, Mr Mabey for the accused intends to raise the defence of provocation.
The test to be applied
[7] On its face, much of the affidavit is hearsay. It is about events which the Crown seeks to prove, but it is not direct testimony, and the deponent cannot be cross-examined. However, s 3(1)(a) of the Evidence Amendment Act (No. 2) 1980 applies.
Admissibility of documentary hearsay evidence
(1) Subject to subsection (2) of this section, and to sections 4 and 5 of this Act, in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if -
(a)The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence;
…
[8] It is not in contention that s 3(1)(a) applies. Ms Gunn had personal knowledge of the matters dealt with in the affidavit, and her death means that she is unavailable to give evidence.
[9] However, as both counsel accept, the evidence must be relevant. Further, s 18 of the Evidence Amendment Act (No. 2) 1980 reads:
Court may reject unduly prejudicial evidence
Notwithstanding sections 3 to 8 of this Act, where the proceeding is with a jury, the Court may, in its discretion, reject any statement that would be admissible in the proceeding under any of those sections, if the prejudicial effect of the admission of the statement would outweigh its probative value,
or if, for any other reason, the Court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement.
[10] It has been noted that cross-examination is the “greatest legal engine ever invented for the discovery of truth where credibility is in issue …”: R v L [1994] 2
NZLR 54 (CA) at 61. Section 25 of the New Zealand Bill of Rights Act 1990 guarantees that everyone who is charged with an offence has the right to a fair and public hearing, and the right to examine the witnesses for the prosecution. However, the right to cross-examine is not an absolute right to confront and question the witness at the trial itself. Section 3(1)(a) certainly contemplates that there will be testimony admitted even when the witness is not available for cross-examination: R v L at 61.
[11] It is in favour of the exercise of the discretion to admit the evidence if there is independent evidence which supports the factual allegations contained in the statement: R v Johnson CA 94/97 6 October 1997 at 7. Cooke P stated in R v Baker [1989] 1 NZLR 738 (CA) at 741:
At least in a case such as the present it may be more helpful to go straight to basics and ask whether in the particular circumstances it is reasonably safe and of sufficient relevance to admit the evidence notwithstanding the dangers against which the hearsay rule guards. Essentially the whole question is one of degree …
[12] As is pointed out in that case, a judge in summing up will be able to advise the jury to exercise particular caution in considering statements that have not been subject to cross-examination. Caution must also be exercised because there has been no opportunity to see the person making the statement in the witness box, and how that person performs under oath.
[13] I have also been assisted by the decision of R v Butler HC ROT T105/97
24 March 1998. In that case Randerson J dealt with the admissibility of an affidavit by a deceased person, who sought a temporary protection order from the accused. The defence was provocation. It was thus analogous to the present case (although there were significant differences in the facts, and the nature of the provocation defence). In that case it was held that general statements by a deceased about her
relationship with the accused can be relevant, although after analysis, similar to the one that must be undertaken here, they were not all held to be admissible.
Consideration of the contentious parts of the affidavit
Paragraph 4.5.2
[14] The first relevant sub-paragraph that is in contention reads as follows:
4.5.2About three years ago, when the Respondent quit his job to become a student, and we were living off his study allowance, the Respondent began to become violent towards me. As we were experiencing financial problems, the Respondent began to hit and kick me when we had arguments. The violence the Respondent has shown towards me has always been more shoving, pushing and kicking. Due to the Respondent’s size, I believe that if he ever decided to punch me then he would kill me.
[15] Unlike the earlier evidence in the affidavit which refers in detail to a particular incident, this paragraph contains a general allegation of violence by shoving, pushing and kicking over a three-year period. It ends with an expression of Ms Gunn’s opinion as to the power of the accused’s punch.
[16] The part of the statement which refers to violence over three years has some probative value, in that it indicates prior violence, consistent with the specific violence that occurred in the period immediately before Ms Gunn was killed. There is no evidence that the Crown can adduce of the type described in R v Baker at 741. that corroborates the claim of earlier violence, save for the evidence referred to of violence in the lead up to Ms Gunn’s death.
[17] A sweeping allegation of this type is easy to make, and hard to deny. No detail is given. No incidents are referred to, which can be tested. As stated, no other witnesses are to be called on the point. It will be a difficult assertion for Mr R to refute, if he gives evidence, save by a general denial. It will, however, be quite prejudicial in that it shows him as a man who has been violent over quite a long period. This will not assist his provocation defence.
[18] I consider that the limited probative value of this statement is clearly outweighed by its prejudicial effect. In particular I am concerned that the inability to cross-examine a deponent on such a broad statement leaves the accused vulnerable to the jury accepting it because Ms Gunn, who so tragically died, said it. I am satisfied that the prejudicial effect of the admission of the statement would outweigh its probative value.
[19] I am also satisfied that it is not necessary or expedient in the interests of justice to admit the statement. The interests of justice require a just balance be struck between the interests of all the parties involved, including the interests of the general public, the victims and the accused. The public interest in the quest for truth and the conviction of offenders must not be overlooked (R v L at 60).
[20] I do not consider in this case that the public interest requires that this evidence be admitted. It will not greatly enhance the essence of the Crown’s case alleging murder, but it will have the capacity to create substantial general prejudice.
[21] Paragraph 4.5.2 will not be admitted, and should be deleted from the version of the affidavit that is presented to the Court.
Paragraph 4.5.3
[22] Paragraph 4.5.3 reads:
I found that when the Respondent became drunk, he would become a lot more violent, and was scary.
I cannot see how it can be the Crown’s case that the accused was drunk. There is no witness being called by the Crown who says that the accused appeared to be drunk on the night of the killing. It will be the Police evidence that at most his blood alcohol concentration was about 63-69 mg of alcohol per 100 ml of blood. The blood alcohol concentration for blood alcohol offending is 80 mg of alcohol per
100 ml of blood.
[23] There is no basis for the Crown to allege that the accused was drunk. The evidence as to any tendency towards violence when he is drunk is therefore
irrelevant. It is also prejudicial in that it helps to create the impression of a violent man.
[24] I would also observe that the very generality of the statement makes it very difficult to refute, in the absence of a deponent who is available for cross- examination. For this reason it is particularly prejudicial.
[25] I reject paragraph 4.5.3 as inadmissible.
Paragraph 6
[26] Paragraph 6 is a longer paragraph. The first part, 6.1, which I will not set out, refers to the fact that there is an application for a protection order that is made without notice because of a risk of harm or undue hardship. I do not consider that this sort of repetitive summary is helpful. The Court generally resists the admission of affidavit evidence which is in the nature of a submission, and any summary paragraph such as this is of that category.
[27] The paragraph goes on to refer to the accused’s history of using physical violence, and the necessity for the Police to be called. Again this evidence is repetitive, and in the nature of a submission.
[28] The same can indeed be said for the last part of paragraph 6 (6.3) which refers to the fact that Ms Gunn’s children were living with the respondent, and she needed it to protect her when she was having contact with her children. This sort of explanation is irrelevant and somewhat prejudicial.
[29] General statements in the nature of a submission are generally not acceptable in any sort of affidavits. When the deponent is dead and not available for cross- examination, they become even more unacceptable. This evidence will not be admitted.
[30] That leaves paragraph 6.2, which reads:
The Respondent is bigger and stronger than I am and I am not physically able to defend myself against him if he was to suddenly attack me and I always think that such an attack is imminent. I am even more fearful that the Respondent is so obsessed with me that I honestly believe that one day he will try and kill me.
[31] The first sentence of 6.2, apart from making the obvious point as to the difference in the size and strength of the accused and Ms Gunn, states that she “always think[s] that such an attack is imminent”. This is a rather loose statement, and insofar as it adds to existing knowledge by stating that Ms Gunn was always thinking that there was an imminent attack, it appears to contain an element of exaggeration and advocacy for her application. It does refer to her state of mind, and for the reasons that I will be referring to shortly, that could be seen as an exception to the rule against hearsay. Nevertheless, the loose and exaggerated nature of the statement makes it difficult to disprove and it is of very limited probative value. Its prejudicial effect clearly outweighs such limited probative value as it might have, and it should be excluded.
[32] The last sentence which expresses her fear at the accused’s obsession, and her honest belief that he will one day try and kill her is, however, in an entirely different category. This is a statement about Ms Gunn’s thinking three days before her death. It is a statement about her state of mind, rather than any event. It is not hearsay evidence at all. It was stated in R v Blastland [1986] AC 42 at 54:
It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or the person to whom it was made. What a person said may well be the best and most direct evidence of that person’s state of mind. This principle can only apply, however, when the state of mind evidence by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial.
[33] In this case Ms Gunn’s state of mind may be relevant for two reasons. First, the exact nature of the relationship with the accused in the days leading up to Ms Gunn’s death is of relevance. There is some suggestion that there had been some degree of forgiveness between them in the last 10 days. There is some question as to the level of anger being shown towards her by the accused in that last period. It is
difficult to be precise on this matter, without knowing exactly how the accused intends to put his case. I am, however, satisfied that her attitude to the accused in those last days may be of some relevance.
[34] Her state of mind may also have relevance to the issue of provocation itself. Ms Gunn’s fear of the accused may be material as to whether she would have done any act to provoke him.
[35] Finally, it is a very important part of the background to her death, in a general sense. In R v Butler p 8, Randerson J held that this sort of evidence as to the general nature of the relationship with the accused is relevant, in the sense that it is part of the important history relating to the charge faced by the accused, and helps puts the death into a factual context.
[36] I do not consider that the generality of the statement deserves the criticism that I have levelled against other general statements earlier in this judgment. This is because the statement about Ms Gunn’s state of mind must by definition be general. She is not recounting a matter of fact in the ordinary sense, but simply setting out her state of mind. She has in the affidavit already set out her reasons for that state of mind, in particular the incident indicates what she has set out in detail.
[37] It is relevant that it is also consistent with an earlier statement in the affidavit, which is in any event admitted, that Ms Gunn was “fearful” of the accused, that if he “saw me with another man then he would kill me and the person I was with.” That sentence being admitted, there seems to be little point in excluding a further statement dealing with the same issue.
[38] Thus, the sentence has probative value for the reasons that I have given. It is, of course, also prejudicial, and the inability of Mr Mabey to cross-examine Ms Gunn on her attitude to the accused must be given appropriate weight. However, here I consider the balance falls in favour of admitting this particular sentence.
[39] I consider that it is in the interests of justice to admit this statement. The jury is entitled to know what Ms Gunn’s state of mind was at the time.
Conclusion
[40] I rule that all the evidence at issue, paragraphs 4.5.2, 4.5.3 and 6 of the affidavit of 8 December 2005, are not admissible, save for the sentence in paragraph 6:
I am even more fearful that the Respondent is so obsessed with me that I
honestly believe that one day he will try and kill me.
………………………….
Asher J
0
0
1