R v Tauariki HC Auckland Cri-2010-092-011776

[2011] NZHC 1878

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE WITNESS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-002018

THE QUEEN

v

WILLIE JOHN AHSEE

Hearing:         18 October 2011

Counsel:         D Johnstone and JM Jelas for the Crown

DPH Jones QC and TM Saseve for the accused

Judgment:      18 October 2011

RULING OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX CP 24063, Auckland 1140. Email:  [email protected] [email protected]

DPH Jones QC, PO Box 1750, Shortland Street, Auckland 1140. Email:  [email protected]

TM Saseve, DX EP74534, Auckland. Email:  [email protected]

R V AHSEE HC AK CRI-2010-055-002018 18 October 2011

Background

[1]      In this trial it is alleged that the accused Mr Ahsee murdered the deceased Mr Phillips by stabbing him with a knife.  It has been established that Mr Ahsee had spent the evening of 30 July 2010 in Mr Phillips company at his home.  It is accepted by the defence that Mr Ahsee stabbed Mr Phillips a number of times and that those stab wounds included the fatal injury when his vertebral artery was severed.  What is at issue are the circumstances that led to the stabbing and the exact sequence of events.

[2]      Mr Jones QC in his opening to the jury has stated that Mr Ahsee relies on the defence of self-defence and a lack of murderous intent.   The defence evidence is almost complete and Mr Jones wishes to call the second and last witness for the defence, a Mr S.

[3]      Mr Johnstone for the Crown objects to the adducing of this evidence.   He submits that Mr S’s evidence is irrelevant or not sufficiently relevant in terms of the balancing  required  under  ss  7  and  8  of  the  Evidence Act  2006  to  warrant  its admission.

The evidence

[4]      Mr S is 20 years old.  His evidence will be that he was invited by Mr Phillips to his home and went on three occasions.  On the first occasion he was repeatedly pressed to drink.  I am informed he succumbed to that pressure to drink against his better judgment, and ended up in the position that he had consumed too much alcohol  and  could  not  drive  home.    Then,  again  somewhat  against  his  better judgment, I am informed he was persuaded to spend the night at Mr Phillips’ home and in his double bed.  He was persuaded to undress and went to bed with only his underpants on, passed out and when he awoke found Mr Phillips had moved very close to him and had his leg or legs over his thigh.

[5]      A few weeks later he was invited again by Mr Phillips to his home.  There was a game of cards where the participants undressed according to the fall of the

cards.  While the game ultimately would have ended with the parties naked, Mr S chose to stop with his underpants still on. At that stage he was drunk and again went to bed in Mr Phillips’ bed and woke up to find Mr Phillips in a similar position.

[6]      In the third incident Mr S only stayed for a few minutes and decided to leave before matters went any further.

The relevance of the evidence

[7]      Mr Ahsee has given evidence. He had visited Mr Phillips’ home on a number of occasions at his invitation to work out in his gym.   On 30 July 2010 he had worked out over a period of some hours.  In the evening he drank with Mr Phillips while sitting around a table.   He says he drank a very considerable amount of alcohol.  He states that while he was sitting at the table with Mr Phillips, Mr Phillips put his hand on his upper thigh by his pocket near to his testicles.  Mr Ahsee pushed his hand away.  He says subsequently Mr Phillips touched him on his earlobe with his fingers or hand and again he pushed him away.

[8]      Mr Ahsee says that following these incidents Mr Phillips left the room for a while and he went to get a bottle opener from the nearby kitchen.  He pulled out the drawer too hard and the kitchen drawer fell on the floor spilling the cutlery.  While he was bending over picking up the cutlery Mr Phillips came up behind him without his knowledge and pushed or kicked him in some unwelcome way.  He says that at that point he swung around with his fists and hit Mr Phillips.  His evidence is not particularly specific but it seems he acknowledges that in that process he picked up a serrated knife that had been in the drawer, or had fallen out, and that this was what came  into  contact  ultimately  fatally  with  Mr Phillips’  neck.    There  was  then something of a fight which culminated in Mr Phillips collapsing.

[9]      The Crown has challenged many aspects of Mr Ahsee’s account of events.  It was put to Mr Ahsee that the evidence about touching his leg was not true and that if

in fact there was any intimate sort of touching it did not happen in the way recounted by Mr Ahsee. This provoked a very strong reaction from Mr Ahsee who said:[1]

How the fuck do you know?  Were you fucken there?  Eh?  How the fuck do you know?  Fuck youse all. Fucken pissing me off

[1] Notes of evidence at 465 (line 28).

[10]     It is not in contention that Mr Phillips was a homosexual.   The following admission of facts under s 9 of the Evidence Act is before the jury:[2]

The deceased was homosexual with a liking for teenage boys.  He had, in the past, befriended teenage boys and made sexual advances towards them, including physical touching.

[2] At [12.1].

[11]     The Crown has called one witness who touches on the issue of Mr Phillips’ sexual attitudes and actions, that is Mr H, a 16 year old.  Included in his testimony was evidence that Mr Phillips put his hand on his thigh and rubbed him there on the outside of his pants.  Mr H pushed his hand away and said he was not gay.

[12]     Mr Johnstone submits that the evidence has no probative value as the fact of Mr Phillips’ homosexual proclivities and his liking for teenage boys is established. He submits that the calling of this evidence, while having little probative value, will be prejudicial in that it may place Mr Phillips in a bad light.  He also points out that the Crown is in any event going to propose that Mr Ahsee was affected by a sexual engagement with Mr Phillips that night.

Discussion

[13]     Both sides clearly accept the relevance of Mr Phillips’ sexual inclinations and his friendships which had sexual aspects with teenage boys.  The question is whether Mr S’s evidence will add anything.

[14]     I accept Mr Jones’ submission that it may well do so.  While I do not have a brief of evidence and therefore do not know the subtle nuances of what Mr S will

say, it is clear that the picture he will paint is of persistent actions by Mr Phillips and

something of an unwillingness to be deterred, even in the face of some contrary indications from the subject of his attentions.

[15]     Mr  Jones  has  made  it  clear  that  he  will  be  putting  it  to  the  jury  that Mr Phillips’ unwanted and rejected attentions, which were repeated, contributed to Mr Ahsee’s reaction when he was kicked or pushed in the kitchen.  It will be relevant to the jury’s considerations to determine to what degree Mr Phillips had pursued Mr Ahsee with unwanted advances.

[16]     The Crown has challenged Mr Ahsee on whether these unwanted advances, at least as recounted by Mr Ahsee, actually took place.  The fact that some advances were made to another young man after Mr Phillips had plied him with drink may give added credibility to Mr Ahsee’s evidence.  The evidence of Mr S goes further than just being evidence about a liking for teenage boys.  If the jury is satisfied that real pressure was put on Mr S by Mr Phillips that could provoke a reaction in a young man, then this might support a conclusion that Mr Ahsee’s evidence was correct.

[17]     The fact that the Crown is not denying that there was some sort of sexual contact between the two earlier in the night does not neutralise that probative value. The Crown’s perception of that sexual activity that I discern from the questions asked to date is going to be somewhat different from that of the defence.   The submissions to the jury cannot be exactly foreseen but they will be sufficiently different by each counsel for there to be a real risk of injustice if Mr Jones is not given the opportunity of putting this material before the jury.  I am very conscious of s 8(2) which requires me to take into account the right of the defendant to offer an effective defence.

[18]     I do not ignore the submission of prejudice put forward by Mr Johnstone.  I do not consider that any extra prejudice that might evolve from the giving of this evidence will be significant.  It is before the jury that Mr Phillips is a homosexual with an interest in teenage boys.  So the fact that he makes such advances is already known to the jury.  For the reasons I have already given this evidence does have the extra shade of showing persistence in the face of resistance and so far as that is

established it may, in a small way, add to any adverse opinion the jury might have about Mr Phillips.  But the shading will be light.  I do not consider that the adducing of this evidence involves significant extra prejudice to the Crown case, and in particular the view the jury will take of Mr Phillips.   The jury will of course be directed firmly that they must in any event put to one side all prejudice in favour of Mr Ahsee that might arise from any adverse view they took of Mr Phillips’ actions with teenage boys.

[19]     There is one further matter which persuades me that this evidence should be admitted.  Mr Jones had signalled his intention to call this witness to the Crown for some time.   He in fact received notice of the evidence through the Crown.   He opened to the jury on the basis that he would be calling this witness and named him. The Crown did not until today indicate an objection to the calling of Mr S.  The jury will inevitably wonder why Mr S was not called and any explanation that might be given might not satisfy them.   There is the risk that the credibility of the defence could be in some way affected if the evidence was excluded.  I do not suggest that the damage to the credibility of the defence case would be profound, but it is a factor to be taken into account.

Result

[20]     I rule therefore that the defence may call Mr S as a witness.

……………………………..

Asher J