R v Timoti
[2023] NZHC 1964
•25 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-004-201
[2023] NZHC 1964
THE KING v
APISALOMA TIMOTI
SAM JUNIOR ANGELO THOMSEN ROBIN DANIEL LEOTA
Defendants
Hearing: 25 July 2023 Appearances:
S McMullan and K Li for the Crown
D Dickinson and G Timms for S Thomsen N Manning and S Brickell for A Timoti
G Newell and C Farquhar for R Leota
Judgment:
25 July 2023
ORAL JUDGMENT OF BECROFT J
[Application to challenge veracity of three Crown witnesses]
Solicitors/Counsel:
Meredith Connell, Auckland
D Dickinson, Auckland G Timms, Auckland
N Manning, Auckland S Brickell, Auckland G Newell, Auckland C Farquhar, Auckland
R v TIMOTI & ORS [2023] NZHC 1964 [25 July 2023]
Application
[1] This is an application under s 37 of the Evidence Act 2006 to permit cross- examination regarding the previous convictions of three Crown witnesses. In short- hand it is a “veracity evidence” application.
Procedural history
[2] As I mentioned yesterday, the application first came to the Court 20 minutes before the start of the trial.
[3] The trial centres around an incident in a dwelling-house in suburban Mt Roskill where a life was lost, allegedly as a result of a gunshot. Two other men were allegedly grievously wounded with a machete. This is all said to result from an alleged violent stand-over to enforce drug or other debts, or as part of a robbery.
[4] In respect of the application, I said to Ms Manning yesterday that at that stage it was entirely unfocussed. What was put before me was the complete conviction history of the three Crown witnesses, without any specification or identification as to which of the convictions were said to impinge on the witnesses’ veracity and which of those were sought to be the subject of cross-examination.
[5] Ms Manning has now refined the application and provided for each witness a list of highlighted convictions. Brief submissions have been filed and overnight I have considered the relevant cases.
[6] This morning there has been further argument. Now at 9.35 am, and given that the matter is of pressing importance, as at least one of the witnesses will be cross- examined today, I give this ruling under some pressure of time. I do, however, have a clear view about it.
[7] Ms Manning drew attention in her written submissions to Love v The Queen, where the Court of Appeal noted, citing L (CA250/11) v R,1 that although the Evidence Act does not require the leave of the court prior to offering evidence going to veracity, seeking leave is, however, “as a matter of logic and best practice, the prudent course”.2
[8] I acknowledge Ms Manning’s written submissions and the efforts made to particularise this application.
The three witnesses and their convictions
[9] By way of background, two of the Crown witnesses, Mr Yelash and Mr Kupa, are complainants. They each were allegedly wounded by a machete attack on them while they were in Mr Yelash’s home.
[10] Ms Manning made clear that each of the complainants would be accused of lying.
[11] The third witness is agreed to be of very peripheral relevance – that is Ms Agnes Campbell. She is a next-door neighbour who visited the scene of the crime which was across the road from her property, after the incident finished. There is a defence suggestion that she may, no higher than that, have interfered with the scene. Even if that occurred, I do not yet see its relevance to the defence case.
[12] In the way the argument has developed, the central issue is regarding Mr Yelash’s convictions.
[13]There is much less debate regarding Ms Campbell.
[14] As I will indicate, the Crown has accepted that the one conviction identified by the defence in respect of Mr Kupa relating to veracity, is properly the subject of cross-examination and this cannot be objected to.
[15]I turn to each of those three in more detail.
1 L (CA250/11) v R [2011] NZCA 332 at [14].
2 Love v The Queen [2019] NZCA 439 at [23].
Mr Yelash
[16] Mr Yelash has, on my count, 91 recorded convictions. They are relatively evenly spread between 1983 to 2022, that being a 39-year period.
[17] Thirty-one of those are identified by Ms Manning as convictions relating to veracity, and which she wishes to cross-examine about. When they are broken down:
(a)12 relate to theft under $500 – by inference shoplifting charges or the like;
(b)one relates to theft of over $500;
(c)13 are burglaries, of which one occurred in 2000, the remainder in the 1980s;
(d)one is possession of instruments for the purpose of burglary;
(e)four are unlawful takings of a motor vehicle;
(f)one is use of a document for pecuniary advantage; and
(g)an aggravated robbery in 1985.
[18] As to timeframe, all but three of those offences occurred last century. In 2022 there was a conviction for theft over $500. In 2003 there was a conviction for possession of instruments for burglary. And, in 2000 a burglary conviction.
[19] As I say, all the other convictions are in the 1990s and, even more so, in terms of those convictions of interest to Ms Manning, in the 1980s.
Mr Kupa
[20] In respect of Mr Kupa, he has one offence that is said to go to veracity, being a conviction under the Passport Act. There is a summary of facts as to that charge. In brief, Mr Kupa and another made false passport applications under their own names but with the submission of a photograph of unknown persons which purported to be
that of each applicant. Mr Kupa also signed a declaration confirming the application as being correct.
Ms Campbell
[21] Ms Campbell has a relatively short list of convictions. There are five identified by Ms Manning as being relevant:
(a)in 2020 a theft under $500 charge – probably shoplifting;
(b)in 2013 a shoplifting charge;
(c)in 2006 interfering with a vehicle, and at the same time a burglary charge; and
(d)in 1996 an unlawful taking charge.
The law
[22]Section 37 of the Evidence Act relatively provides:
37 Veracity rules
(1)A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
…
(3)In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a)lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b)that the person has been convicted of 1 or more offences that indicate a propensity for a lack of veracity:
(c)any previous inconsistent statements made by the person:
(d)bias on the part of the person:
(e)a motive on the part of the person to be untruthful.
…
(5)For the purposes of this Act, veracity means the disposition of a person to refrain from lying.
[23] That provision has generated significant previous argument as set out in the cases referred to by counsel. Those that have been in focus during this argument include R v Katipa, a decision of Downs J and heavily relied upon by the defence;3 the Supreme Court decision of Ieremia v R;4 and two Court of Appeal decisions, Horton v R in December 20205 and Keremete v R in 2022.6 All of those are relevant to this argument.
[24] In general, it seems to me that the Horton decision represents something of a tightening of approach to the application of the “substantial helpfulness” test and, at least to a degree in the Crown’s view, casts some doubt as to whether Katipa would now meet the apparently more stringent approach outlined in Horton.
[25]I will return to those cases shortly.
Discussion
[26] As for Mr Yelash, the thrust of Ms Manning’s direct and clear argument was that there is a pattern of dishonesty-related offending that has characterised Mr Yelash’s entire life. She points, in particular, to para [14] of Katipa:
[14] If a person’s criminal history discloses a pattern of dishonesty, albeit in the context of theft as against perversions of justice, that pattern may— subject always to the facts—be substantially helpful on the question of whether the person’s testimony is likely to be truthful.
[27] In Ms Manning’s view, even though the offending is generally low-level, there is a clear cumulative effect.7 Any tailing off in dishonesty offending this century is a matter of weight for the jury.
[28] I have given considerable thought to this matter overnight. As the Court of Appeal mentioned in Keremete:8
3 R v Katipa [2017] NZHC 2169.
4 Ieremia v R [2020] NZSC 143, [2011] 1 NZLR 168.
5 Horton v R [2021] NZCA 82.
6 Keremete v R [2022] NZCA 362.
7 R v Katipa, above n 3, at [12].
8 Keremete v R, above n 6, at [20] (emphasis added, and footnotes omitted).
But, veracity evidence is admissible if, and only if, it is “substantially helpful” in assessing a person’s veracity. This Court has repeatedly held this test is not lightly met.
[29] As I observed in argument, the qualifier “substantial” has to be given some meaning. Amongst other things, a dictionary definition of “substantial” includes of “considerable importance” and the test is not met merely because the convictions here are considered helpful. They must be substantially helpful.
[30] In terms of Mr Yelash, it is an unavoidable conclusion that most of the offences are relatively minor. If there is a pattern, it is a pattern that distinctly tailed off after the year 2000. None involve clear acts of explicit falsehood or lying. And it is difficult to see, paraphrasing Katz J’s decision referred to in Horton,9 how those previous convictions logically bear on Mr Yelash’s veracity when giving evidence about being violently assaulted and witnessing the death of a man as the result of a gunshot – being the circumstances of this trial.
[31] Everything here depends on the circumstances. I accept Ms Manning’s submission on that.
[32] This situation has some clear similarities to Horton where there was an allegation of rape and sexual offending. The complainant’s credibility was absolutely central. Hers was the only evidence as to the alleged sexual offending and it formed a substantial part of the Crown’s case. That complainant was 56, a similar age to Mr Yelash. She had a long, but not as long, list of convictions as here. But, as here, many related to minor property offences. The Court of Appeal upheld the District Court decision10 not to allow those convictions to be admitted in evidence.
[33] The circumstances here point even more strongly than Horton against allowing evidence of Mr Yelash’s convictions. Here, there are other two witnesses who saw and heard the incident. There is objective evidence in the way of bloodstains and bullet trajectories. And it is accepted by the defence that two men turned up at the house each carrying a weapon. So, this is not a situation as in Horton where there is
9 R v Chase [2016] NZHC 2665 at [44], cited in Horton v R, above n 5, at [31].
10 R v Horton [2019] NZDC 13928 (Ruling 1 of Judge Snell).
no objective evidence against which to test the complainant’s evidence. Here, there is much other evidence which can be used to test Mr Yelash’s credibility. In my view, Mr McMullan, for the Crown, is right to make this point.
[34] On any analysis, the Horton decision is generally very similar to this case. As I said, the complainant was 56 years old in that case, she had 24 previous convictions for dishonesty offending, mainly small-scale, that extended over a period of 35 years from 1980 to 2015. That is a very similar situation to here, except Mr Yelash’s relevant convictions significantly tailed off after the year 2000.
[35] There is one conviction for Mr Yelash which has given me pause for further consideration. That is the conviction for taking, obtaining or using a document for pecuniary advantage. I have no information as to the facts in that case. It probably involved some form of explicit dishonesty. But it was a 1998 offence which attracted a conviction and discharge. That tends to indicate very low-level offending. It is not “substantially” helpful.
[36] A further matter of concern is also the aggravated robbery conviction in October 1985 for which there was a three-year imprisonment sentence. That is nearly 30 years ago. Mr Yelash would have been 20 or so at the time. The conviction is too old to be substantially helpful.
[37] In my view, the inescapable conclusion is that all these convictions sought to be introduced in evidence and cross-examined about are too old, generally too minor, and largely petered out by the year 2000. On top of that, I do not see how they logically show a likelihood to tell untruths about a qualitatively different and significantly more serious matter as that which is in issue here.
[38]As was observed in Horton at para [26]:11
… it is clear from recent decisions of this Court that evidence of minor dishonesty convictions for shoplifting and theft, such as those that form the bulk of the complainant’s criminal history, is unlikely to satisfy the substantial helpfulness test in a case like this. As the Court said in Ieremia, evidence of such a history of offending, “no matter how frequent is not strongly probative
11 Footnotes omitted.
if at all of a complainant’s propensity to lie when giving evidence on such a serious matter”. The same point was made in Key: “we do not agree that offending such as petty theft and shoplifting is revealing of [an] offender’s propensity to tell the truth when giving evidence”.
[39] In the way I have analysed the convictions here, they are essentially on all fours with Horton. The additional burglaries do not make a decisive difference. And they are very old, most over 30 years old. Frankly, I would be dancing on the head of a pin to try to differentiate this case from Horton, certainly in a way that favours Ms Manning’s argument. If anything, as I have outlined, the Horton case when distinguished makes for an even stronger case for the Crown in these circumstances.
[40] I accept that the Katipa case gives some, if not significant, support to Ms Manning’s argument. In that case there were similar types of convictions relied upon
– although in a different context than here, where I observe there was not the other objective evidence against which to test the allegations against Mr Katipa that he sexually offended against fellow prison inmates.
[41] I accept Mr McMullan’s careful submission that there is at least the gentle inference in Horton that Katipa may not have been decided in the same way today. That is not something on which I have placed any weight. It is simply an observation. What is clear is that on the approach taken in Horton, Mr Yelash’s convictions would not be substantially helpful in assessing his veracity. I refer to Horton again:12
[30] We agree with the view expressed by this Court in both Ieremia and Key that evidence of a witness’ prior convictions for minor dishonesty offending, such as shoplifting and petty theft, is generally unlikely to be substantially helpful to assessing the witness’s veracity when giving evidence. Clearly some evaluation is required in each case, as indeed occurred in Ieremia and Key. As is often said, context is important. Relevant factors include the nature and seriousness of the convictions (particularly if any falsehood is disclosed), the age of the convictions, any overall pattern of offending, and the circumstances of the trial (that is, the particular way in which issues of veracity arise). Also relevant can be evidence of extenuating circumstances related to the convictions (such as significant material hardship on the part of the complainant) as that bears on the extent to which the conviction illustrates a wider propensity to lie.
12 Horton v R, above n 5 (footnotes omitted).
[42] In short, in my view, the inevitable conclusion is that the application, properly and responsibly brought by Ms Manning in respect of Mr Yelash’s convictions, must be dismissed. His convictions are not substantially helpful to test his veracity.
[43] As for Mr Kupa, the situation is quite different. As with Mr Yelash, it will be suggested that he also is lying. He pleaded guilty to a charge where lying and explicit falsehoods were an integral part of the charge.
[44] Mr McMullan concedes that he cannot oppose Mr Kupa being cross-examined in respect of that conviction. In the light of that concession, I rule that the application for cross-examination on that single charge succeeds.
[45] In terms of Ms Campbell, her evidence is, at best, peripheral. One theory of the defence case is that Ms Campbell has herself taken, or arranged to be taken, the gun and machete that may have been left at the scene. That would be an explanation as to why they were not found. I must say that, at this stage, I am not sure how that advances the defence case, but that may become clear. Whatever the reason for the gun and machete not being found, they have not been able to be forensically analysed and that is accepted.
[46] The Crown would not be prejudiced in Mr McMullan’s submission if Ms Campbell were to be cross-examined on the convictions identified by Ms Manning. But in the Crown’s view, in just the same way as the test for Mr Yelash’s convictions is not met, so, too, for Ms Campbell.
[47] Despite Ms Manning’s submission on that point and, without rehearsing the same arguments as for Mr Yelash, I agree with the Crown. The offences are all of a relatively minor, property-related nature. At least three of the five are now 15 years old. In none of them does the willingness to tell a lie or present falsehoods appear to be an ingredient of the charge. Being minor property-related offences, I struggle to see how they would be substantially helpful in any way in assessing Ms Campbell’s veracity.
Result
[48] For all those reasons, the application in respect of Mr Yelash and Ms Campbell fails. The application is successful in respect of Mr Kupa.
[49]I rule accordingly.
Becroft J
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