R v Te Tomo
[2017] NZHC 1062
•19 May 2017
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 TIMARU REGISTRY
CRI-2015-476-000005
[2017] NZHC 1062
THE QUEEN v
KOOLY MANGAKI TE TOMO
Hearing: 19 May 2017 via telephone conference Appearances:
A McRae for the Crown
J Rapley and P Bradford for the Defendant S Bailey for Perry
R Glover for Lucas
Judgment:
19 May 2017
JUDGMENT OF NATION J
[1] The Crown and the defendant have joined in seeking an adjournment of the defendant’s trial which is scheduled to start on 22 May 2017.
[2] The request was made by way of a memorandum from the Crown sent to the Court on 18 May 2017. I discussed the issues with counsel for the Crown and for the defendant, but with counsel for Mr Perry and Ms Lucas also involved, in a telephone conference at 9.30 am on 19 May 2017. I now give my decision in relation to that application and, at the same time, deal with the claims for privilege which I have been
R v TE TOMO [2017] NZHC 1062 [19 May 2017]
told will be made by Mr Perry and Ms Lucas when they are called to give evidence for the Crown at the trial of Mr Te Tomo.
[3] Mr McRae said he was reluctantly making the request for an adjournment out of caution and because of considerations of fairness.
[4] On 18 May 2017, Ms Bailey, counsel for Mr Perry, advised the Crown that Mr Perry had now filed an appeal against his conviction in the Court of Appeal and that he would be invoking his right to claim privilege against self-incrimination in relation to evidence which the Crown were calling him to give in the trial of Mr Te Tomo. She said the claim would be based on the principles articulated by Collins J in R v McNaughton and s 60 of the Evidence Act 2006.1
[5] Mr Glover advised the Court on 19 May 2017 that he would be adopting the same position with regard to Ms Lucas.
[6] In his memorandum of 18 May 2017, Mr McRae, for the Crown, briefly summarised the basis on which he argued neither Mr Perry nor Ms Lucas would be entitled to privilege. He acknowledged the arguments that had been made as to how their giving evidence might incriminate them if their appeals are successful and there is a retrial. He argued that the circumstances of Mr Perry and Ms Lucas were materially different from those which were material to Collins J in his decision in R v McNaughton.
[7] Mr McRae said that any risk of self-incrimination, through their giving evidence at trial, could also be removed through the Crown accepting, as he did, that, if they were to be retried, it would be unfair for their evidence given at Mr Te Tomo’s trial to be used in any way as evidence against them at any retrial. He effectively gave an assurance for the Crown that it would not be.
[8] Mr McRae said the Crown would be presenting its case on the basis Mr Marshall pleaded guilty to assault with intent to rob and manslaughter, Ms Lucas pleaded guilty to assault with intent to rob and was found guilty of manslaughter and
1 R v McNaughton (Judgment No 4) [2014] NZHC 2208.
Mr Perry was found guilty of manslaughter and assault with intent to rob. He said certified copies of the convictions had been obtained in that regard. He considered that the legal framework for the charges against Mr Te Tomo would be identical to those concerning Mr Perry and Ms Lucas. He said that Mr Te Tomo would be faced with differentiating his involvement from the other defendants. In the eyes of the jury, he considered it would be difficult to see how, on the facts, a jury would be able to see beyond the convictions of the other defendants in the particular circumstances of the case.
[9] Mr McRae considered that, because of the potential influence the convictions of Mr Perry and Ms Lucas could have on the jury, if their appeals were to be successful and the convictions overturned, it is likely Mr Te Tomo would also be able to successfully appeal his conviction on the grounds his trial had been unfair. In this event, there would have to be two retrials.
[10] Balanced against that, Mr McRae was obviously suggesting that, if Mr Te Tomo’s trial is adjourned, there is the possibility that Mr Perry and Ms Lucas’ appeals will be unsuccessful. There would then be just one further trial to bring these proceedings against all defendants to an end.
[11] Mr McRae said the claims that Mr Perry and Ms Lucas will be making for privilege against self-incrimination just added another layer of potential complications, so as, in the Crown’s view, to justify an adjournment of the trial.
[12] Ms Bailey confirmed the claim that would be made for privilege. She said there would be an added risk through the fact Mr Perry would be giving his evidence on oath, in contrast to the situation when he was interviewed by the Police. Mr Glover confirmed that Ms Lucas would be making a claim for privilege.
[13] Mr Rapley made careful submissions supporting Mr Perry and Ms Lucas’ right to claim privilege against self-incrimination. He referred to the ways in which the witnesses’ situation in McNaughton was similar to those of Mr Perry and Ms Lucas. He suggested the scenario that could well develop at trial is that Mr Perry and Ms Lucas could each claim privilege. That privilege might be denied. Mr Perry and Ms
Lucas would still refuse to give evidence, for which they might be sentenced for contempt, a sentence which would be meaningless given they are already in custody.
[14] Mr Rapley said that, if I as trial Judge did deny Ms Lucas and Mr Perry’s claim to privilege, and if Mr Te Tomo were to be found guilty, that ruling would also be the subject of appeal by Mr Te Tomo.
[15] He suggested the evidence as to their convictions would be particularly prejudicial and unfairly so because the jury might give undue weight to those convictions as proof that either Ms Lucas, Mr Marshall or Ms Perry had already been found guilty of manslaughter as a principal. That would be particularly unfair because the Crown case against Ms Lucas had been that she was guilty of manslaughter only as a party and Mr Perry might also have been found guilty only as a party. Because the case against Mr Perry was that he could have been guilty as either a principal or a party, it would be wrong for the jury to conclude that he had been found guilty as a principal.
[16] Mr Rapley argued that, with the Crown wanting to call evidence from Ms Lucas and Mr Perry, there is now a high risk that, if the trial starts, it would have to be aborted partway through. He argued the better course would be to adjourn the trial now.
[17] Despite the fact the Crown is seeking an adjournment of the trial, the Court has to be concerned with the overall interests of justice in deciding whether that adjournment should be allowed. There have already been considerable delays in these defendants coming to trial given they were first charged with these offences shortly after the victim’s death on 31 May 2014.
[18] Despite the fact that neither Mr Perry nor Mr Lucas had pleaded guilty, both received significant discounts on their sentence for the remorse they had shown and the way they had assisted the Police through the information they provided in their respective interviews and because of the assistance it was expected they would, in the future, provide through being called to give evidence for the Crown in the pending trial of Mr Te Tomo. I note that both have now filed appeals against conviction and
sentence so that the justification for those discounts will now have to be considered by the Court of Appeal.
[19] It is in the interests of justice that the Court, where reasonably possible, avoids unnecessary delays in the trial of charges, particularly those as serious as Mr Te Tomo faces. The impact of delay on witnesses and victims, including those who were close to the deceased, have to also be considered.
[20] It is clear from what I have been told that, whatever happens in this trial, there are likely to be appeals. Mr Rapley has said there will be an appeal resulting from my ruling on the s 21 Evidence Act application. It is correct that Mr Te Tomo’s trial will be within the same legal framework as the Court considered appropriate for the Perry/Lucas trial. If there are going to be these appeals, it will be in the interests of justice that the Court of Appeal be able to consider the issues against all that has happened in two completed trials rather than in stages with the potential for further delays.
[21] As Collins J pointed out in McNaughton, the submission that a witness is not compellable because his appeal rights have not been determined is difficult to reconcile with the definition of when a proceeding has been determined, set out in s 72(3) of the Evidence Act 2006.2
[22] Collins J held that, with the definitions in s 4(1) of “incriminate” and “self incrimination”, the right to claim privilege, provided for in s 62 of the Evidence Act, is narrower than common law rights which he held were broad enough to encompass the “danger” or “peril” of a witness reasonably losing the opportunity to have an existing conviction quashed.
2 Evidence Act 2006, ss 73(2)(b) and (3)(c):
(2)An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless-
…
(b) the proceeding against the associated defendant has been determined.
(3)A proceeding has been determined for the purposes of subsection (2) if-
…
(c)the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
[23] It could be argued that, with the relevant provisions of the Evidence Act, s 60 and the definitions in s 4(1), there is legislation that must take precedence over the common law and permit the Crown to call as a witness an alleged co-offender of an accused, where the trial of that co-offender has taken place and he has been convicted and sentenced or that common law rights are no more extensive than the privilege provided for in s 60.
[24] Collins J did not refer to Singh v R.3 There, William Young JJ said, for the Supreme Court:
[31] Under s 60(1)(b) of the Evidence Act 2006, the privilege against self- incrimination can only be invoked in relation to information which, if provided, would be “likely” to incriminate the person claiming the privilege. The use by the legislature of the word “likely” shows that it intended to confine the privilege to circumstances where the potential for incrimination is “real and appreciable” and not “merely imaginary and fanciful”. This means that the claim can only be invoked where later prosecution is itself likely. We also see the current test under the statute as being the same as that explained by Cockburn CJ in R v Boyes:
... [T]he Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. ... Further than this, we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice.
[25] I note that, in McNaughton, Collins J referred to that same passage as reflecting “the broad scope of the common law privilege against self-incrimination”.
[26] The Supreme Court looked at the factual background and context in which the witness was being called to give evidence, the purpose for which the Crown had proposed to call her and concluded that “all in all we are satisfied the risk of incrimination was insufficiently likely to give rise to the privilege”. Relevantly to this case, William Young JJ referred to the particular circumstances of the case and then observed “all of this illustrates the risk that too ready an acceptance of a claim of
3 Singh v R [2010] NZSC 161.
privilege may encourage gaming behaviour by defendants (and set the scene for more pressure to be placed on complainants in domestic violence cases)”. There is thus a tension between what the Supreme Court said in Singh v R and Collins J’s approach in McNaughton. I have considered the position applying common law principles as Collins J stated them to be.
[27] Collins J referred to the degree of risk of self-incrimination required to trigger the protection of the privilege against self-incrimination at common law by referred to a statement from Shaw LJ in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation:4
The question is, whether there is a recognisable risk? The principle which protects a witness from obligatory self-incrimination is not to be qualified by or weighed against any opposing principle or expedient consideration so long as the risk of self-incrimination is real in the sense that what is a potential danger may reasonably be regarded as one which may become actual if the witness is required to answer the questions or to produce the documents for which privilege is claimed.
[28] He also referred to the approach of Cooke J in Busby v Thorn EMI Video Programmes Ltd:5
The test generally applied has been whether answers may place the [witness] in real and appreciable, not merely imaginary or fanciful, peril.
[29] I do not consider there is any real and appreciable risk that the evidence Ms Lucas and Mr Perry are likely or may give at trial will put them at risk, either as far as their appeals are concerned or if their appeals are successful and there is a retrial then on such a retrial.
[30] I proceed on the basis the evidence they will give at the Te Tomo trial will not in any way be used against them on any subsequent retrial and will thus be treated as inadmissible. It will therefore not be evidence which the Court of Appeal can take into account when considering the merits of their respective appeals.
4 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 581.
5 Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 at 469.
[31] Both Mr Perry and Ms Lucas provided significant evidence as to their involvement in the matters with which they were charged through their interviews with the Police. There was ample evidence in those interviews on which each of them could be convicted if the law, as to the essential elements of manslaughter, was as I set out for the jury on my summing up and the respective question trails. The evidence that they are being called to give is unlikely to be any more extensive than they have already provided through their respective interviews. If some questions are asked during the trial or it appears that the witness is about to say more than would be currently anticipated, that may have to be dealt with through a warning about self- incrimination. If that is necessary, it can be dealt with at the trial. At this stage, I proceed on the basis the risk of that being necessary is slight.
[32] Neither Mr Perry nor Ms Lucas has, in their respective notices of appeal, set out the grounds on which they contend there were errors of law in the way their trial proceeded, the summing up or the question trail but I apprehend they are going to argue that the Court did not sum up correctly as to the essential elements of the manslaughter charge which had to be proved against them. Given the extent of the evidence they each provided through their interviews, even if there was an error of law, it is not inevitable that convictions will be set aside and a retrial ordered. It is also possible that, if the Court of Appeal considers significant errors were made as to the essential elements of a manslaughter charge, the Court may decide that it is not a situation where one or both of the appellants should be retried.
[33] Given the evidential basis for the jury’s verdicts against them, it is likely the appellants’ prospects on appeal will revolve around questions of law, not evidence. That being the case, their giving evidence at Mr Te Tomo’s trial is unlikely, in a real and appreciable way, to prejudice them on their respective appeals.
[34] For all those reasons, it is most unlikely that I will rule during the trial that either Ms Lucas or Mr Perry are entitled to claim privilege with regard to the evidence which the Crown will be calling them to give.
[35] I thus do not consider that the fact Mr Perry and Ms Lucas will be making a claim to such privilege is grounds for adjourning the trial.
[36] I have also considered whether there should be an adjournment on the basis there will be unfair prejudice to Mr Te Tomo through the jury knowing that Ms Lucas and Mr Perry have already been convicted. With Mr Te Tomo having sought severance and that ultimately not having been opposed, there was always the potential for this sort of prejudice to eventuate. However, given that a conviction is evidence that the charged offence has been committed, the prejudice that might arise from the jury knowing about these convictions would not necessarily be unfair or illegitimate prejudice, particularly so if they were told, as they would have to be, that the conviction of Lucas on the manslaughter charge cannot be used as evidence that she was a principal in that offence. That is because the Crown case against her was that she was guilty as a party. Likewise, Mr Perry could also have been found guilty on the basis he was a party and not a principal.
[37] The Crown, however, have to prove just what happened leading up to Mr Gairns’ death and Mr Te Tomo’s part in it. With Ms Lucas and Mr Perry being called to give evidence as to their involvement, and in the event of their being hostile, their interviews admissible as evidence, proof of their convictions would add little to the Crown case. Given Ms Lucas pleaded guilty of the charge of assault with intent to rob, the Crown can lead evidence to that if they wish. I do not consider that it is necessary for the Crown to lead evidence as to Mr Perry’s convictions or Ms Lucas’ conviction for manslaughter and I rule that they should not do so. There is a risk that the fact of those convictions may emerge during the trial or, despite the suppression orders, members of the jury may be aware of them. Those risks and the prejudice that might arise from such knowledge must be assessed with proper regard to the way the jury will be directed, their verdicts must be based on the evidence which is before them. The risks of their knowing or coming to know about the Lucas and Perry convictions do not justify the adjournment of this trial.
[38]The application to adjourn the trial is denied.
Solicitors:
Gresson Dorman & Co., Timaru
J Rapley, Bridgeside Chambers, Christchurch S Bailey, Barrister, Christchurch
R Glover, Barrister, Christchurch.
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