R v W HC Greymouth CRI 2009-009-10453

[2010] NZHC 1480

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2009-009-010453

REGINA

v

W

Hearing:         25 August 2010

Counsel:         P J Shamy and M G Robinson for Crown

PHB Hall and T K Stevens for Accused

Judgment:      26 August 2010

RULING NO. 1 OF FOGARTY J

Introduction

[1]      The defence oppose the calling of two witnesses, Ms Powell, a registered nurse, and Ms Tanner, a victim adviser.  The Crown seeks to call both witnesses to place before the Court admissions made by Ms W   to them.

[2]      To Ms Powell, as appearing from her formal written statement, Ms W   said to her about 10.45 am on the morning of the killing:

I’m the one that hit him.

R V W HC GRY CRI 2009-009-010453  26 August 2010

To Ms Tanner at about quarter to four in the afternoon of the same day she said that she had no memory of what happened from the point when David White went back to the bar to the sight of him lying on the floor and not knowing how he got there. She had also said to Ms Powell, after saying she had hit him, that she could not remember what had happened although she later reaffirmed that she had hit him and indeed had killed him.

[3]      Earlier in the same day, after she had woken up, a friend who was a house guest, Alana Forde, and one of the witnesses, had told her that David had died and that she had hit him.

[4]      The initial stance of the Crown was not to call these witnesses Ms Powell and Ms Tanner as part of the Crown case but to reserve the right to call them in rebuttal should the accused give evidence, in order to put before the jury the evidence that Ms W   could not remember what had happened later in the day.

[5]      However, having reflected on the position the Crown decided to proceed to seek to call their evidence before closing the Crown case.

The argument for admission of the evidence

The Crown argument

[6]      The Crown case was that the evidence of both witnesses is relevant and probative.  I agree.  Ms Powell’s evidence contains an admission from Ms W   that she hit him.  It is a question of fact for the jury as to whether she obtained that information  from  Ms  Forde  or  whether  she  knew  about  it.    There  is  a  strong argument that she did obtain the information from Ms Forde and could not remember the evening, by reason of her statements to Ms Tanner.  But I accept Mr Shamy’s argument that that is an issue of fact which could be weighed by the jury.  I accept, therefore, that Ms Powell’s evidence is relevant and potentially of consequence and so admissible pursuant to s 7.

[7]      In the case of Ms Tanner her evidence is potentially of consequence (s 7(3)) if Ms W   elects to give evidence and gives an account of what happened after the time Mr White came back into the bar and before he fell.  At this stage of the trial I have had no confirmation from Mr Hall that he will not be calling Ms W  .  I have advised counsel that I would be agreeable to Ms Tanner being called as a rebuttal  witness,  but  this  was  made  informally  and  I  infer  that  Mr  Shamy  is concerned that if formal opposition is made after Ms W   is called he runs the risk that the application might be turned down.  Given the Crown’s predicament at this point it seems to me that I am entitled to assume as a real possibility that Ms W   may give evidence and give evidence of a recall of the events which would make Ms Tanner’s evidence of consequence under s 7(3).

[8]      The second proposition is that the information is not confidential so that s 69 does not apply.  And second, even if the Court found it confidential information it is in the public interest that the evidence be given.   Mr Shamy relied on two recent Court of Appeal decisions:   R v X [2009] NZCA 531 and Kaka v R CA777/2009

11 May 2010.   Both as to the residual discretion under s 69, and by reference to s 8, of the Evidence Act 2006,  Mr Shamy said of course the evidence was prejudicial but it was not unfairly prejudicial.  There were issues about how much weight should be attached to it.  There was an argument that Ms W   could not in fact remember what had happened and was relying on what Ms Forde had told her when saying she hit Mr White and that that was a point of view that could be put to the jury and was for the jury to weigh up.

[9]      In elaboration of the confidential point Mr Shamy noted that the admission to Ms Powell came right at the outside when Ms Powell went into the house.  She saw Ms W   sitting at the table with her head in her hands.  She said to Ms W  :

I know it must be upsetting.

And with that Ms W   said:

I am the one that hit him.

[10]     Ms Powell is employed as a rural nurse specialist and was requested to call on Ms W   by the father of Ms W  ’s four year old boy.  Ms Powell did not

know Ms W   before that call.  Ms Powell summed up her statement by saying her job was to keep Carmel calm as she was suicidal or speaking of suicide.  Shortly after her conversation with Carmel she gave her 5 milligrams of valium to calm her down and also rang Victim Support in Karamea, reaching Ms Tanner, and suggested arrangements to move Carmel for her own safety to the care of someone from Victim Support.

[11]     Ms  Tanner  agreed  to  help  and  went  to  see  Ms  W  .    She  assessed Ms W   as suicidal, organised a bath for her, and put her to bed and left her in the company of two other women.  She went back to see Carmel at 3.45 pm and found her awake and quite upset and not wanting to stay in the house, it was so close to the hotel where Mr White had died.  She invited Ms W   to come and stay with her for  two  nights.    It  was  while  Ms W    was  staying  with  her  that  she  told Ms Tanner  that  she  had  no  memory of  what  happened  in  the  interval  between Mr White coming back to the bar to the sight of seeing Mr White lying on the floor.

[12]     Mr Shamy argues that that advice given to Ms Tanner while she Ms W   was staying at her home could not be regarded as confidential.

[13]     In respect of both Ms Powell and Ms Tanner, Mr Shamy invited the Court to follow Kaka.   In that case a prison inmate had made admissions to a nurse, when they were meeting for a self-harm assessment.

The defence argument

[14]     Mr Hall argued that the information that Ms W   gave to Ms Powell was privileged by virtue of s 59 of the Act because she was the health practitioner.    I agree that she was a health practitioner.   But I do not think that there was the necessary subjective state of mind on the part of Ms W   to take advantage of the privilege relationship as contemplated by s 59(2).

[15]     Alternatively, Mr Hall argues the relationship was confidential and, secondly, that the evidence of such poor quality that there is no need in the public interest for it to be advanced.   He sought to distinguish the case from the situation in X where

without the evidence the prosecution might fail.  He also pointed out there was very real doubt as to its reliability given the information Alana Forde had given to the accused earlier in the day.

[16]     Inasmuch  as  s  59  applied  he  argued  that  the  discretion  should  not  be exercised against the accused.   He also relied on s 58 arguing it was unfairly prejudicial.

[17]     He had the same argument in respect of Ms Tanner except he did not, of course, rely on s 59.

Analysis

[18]     As the Court said in X the Act does not define confidential information [32] that the common law had moved to a reasonable expectations test [44], [45], [48] and [61].

[19]     In paragraph [61] the Court said:

[61]     That said if, as we have suggested, the test is an objective one – a reasonable  expectation  of  confidentiality  –  a  reasonable  person  in  X’s position could hardly have expected that what he said to the psychiatric nurses could be utilised against him in the most damning way in a court of law.  And there was nothing approaching what might be termed an informed waiver of that expectation.   We take the view that the information was confidential for the purposes of s 69.

[20]     There is a significant difference in this case between approaching the matter objectively and approaching the matter subjectively.  This is the West Coast.  It is a small and neighbourly community.   Both Ms Powell and Ms Tanner responded quickly and informally as befits the culture.  Although neither knew Ms W   they did not approach her, at one remove, as a professional to a patient, but rather as one member of the community to another.  Nonetheless, both were there because of their special skill sets and their office in the community as a nurse on the one hand, and a victim  adviser  on  the  other.    They  were  both  called  in.    In  the  circumstances Ms W   had no reason to feel apprehensive by their presence.  On the contrary, they had come to help.  I am satisfied in the circumstances from an objective point of

view there was no reason for Ms W   to think she had to speak guardedly for fear that what she said might be taken down or repeated later and used against her.   Nor was it a casual situation.   At all times she was exceedingly distressed and was regarded by these skilled persons as suicidal.   Both Ms Powell and Ms Tanner regarded themselves as acting professionally at this time.  They were friendly and helpful but they were not there as friends.  They were there because of their special responsibilities.

[21]     I am satisfied that the relationship with both Ms Powell and Ms Tanner, on an objective analysis, gave rise to a reasonable expectation of confidentiality.   A reasonable person in Ms W  ’s position could not be expected to have responded to questions in a guarded way.  She knew that the reason why these two women were helping her was because of their concern for her welfare.

[22]     Accordingly, I move on under s 69 to consider whether, nonetheless, her answer should be admitted in evidence.

[23]     I agree with Mr Shamy’s position that the correct starting point here is as set out in paragraph [79] of X:

[79]     The short point here is that the weight of appellate authority in this country and elsewhere favours the appropriateness of the disclosure of criminality, notwithstanding the confidentiality of information in particular circumstances.

[24]     I note that there is a difference between the common law approach to the use of confidential information from the New Zealand Bill of Rights Act 1990 approach to the obtaining of information under illegal search and seizure.

[25]     In X the accused had been interviewed by a psychiatric nurse to consider whether  he  was  at  the  risk  of  self  harm.    He  had  earlier  been  cautious  in  his statements to the police.  He was utterly candid to the nurses and told them that he had intended to kill the victim.  There was a real risk that if his evidence was not admitted the Crown would not be able to sustain the case.  The Court said:

[87]      The importance of the information is highly relevant.   The Crown case is that X deliberately – indeed quite cold-bloodedly – planned to kill V

in a quite horrific manner.  As Mr Mander said, the appropriate description for the level of criminality is attempted murder.  Attempted murder requires precisely the intention which was conveyed to nurses A and B.   It can be difficult for the Crown in attempted murder cases to advance proof of such an intention by other forensic means, such as reliance upon inferences.   It seems to us wrong that the Crown should potentially be inhibited from pursuing the case at what on the face of it appears to be the appropriate level of culpability, if it cannot lead this evidence.

[26]     In respect of Ms W  ’s admission to Ms Powell that she hit and killed Mr White it is of considerable importance to take into account the sequence of events.  Her “admission” to Ms Powell came after Alana Forde told her that she had hit him.   Ms Powell herself did not accept that she had killed him and in fact consoled Ms W   by saying that she may not have killed him, he may have died for other reasons.

[27]     Earlier in the case I had advised counsel it was my view that a jury properly directed could not rely on her statement that she had killed him, as she had no basis for making that judgment.  It needs to be kept in mind that the death here was quite unusual caused by a very rare rupture of an artery as it emerges from the top of the spine due to a rapid rotation of the head.

[28]     Mr Hall argued that it would be unfairly prejudicial for this evidence to be allowed.    Indeed,  his  principal  argument  was  always  placed  under  s  8  of  the Evidence Act 2006 which provides:

8         General exclusion

(1)       In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will -

(a)      have an unfairly prejudicial effect on the proceeding; or

(b)      needlessly prolong the proceeding.

(2)       In   determining   whether   the   probative   value   of   evidence   is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

[29]     By contrast the criteria in s 69 is different and is contained in s 69(3):

69       Overriding discretion as to confidential information

…

(3)      When considering whether to give a direction under this section, the

Judge must have regard to -

(a)       the likely extent of harm that may result from the disclosure of the communication or information; and

(b)the nature of the communication or information and its likely importance in the proceeding; and

(c)      the nature of the proceeding; and

(d)the availability or possible availability of other means of obtaining  evidence  of  the  communication  or  information; and

(e)       the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and

(f)       the sensitivity of the evidence, having regard to -

(i)the time that has elapsed since the communication was made or the information was compiled or prepared; and

(ii)      the extent to which the information has already been disclosed to other persons; and

(g)       society's  interest  in  protecting  the  privacy  of  victims  of offences and, in particular, victims of sexual offences.

…

[30]    Criterion (b) under s 69(3) does enable the Court to examine its likely importance in the proceeding.

[31]     If the evidence is admitted it will be put to the jury by Mr Hall, and would be discussed in summing up by me that this statement may simply have been a belief gained by Ms W   from Ms Forde.

[32]     Significantly, when Ms W   told Ms Tanner later in the day that she could not remember what happened she also told Ms Tanner that Ms Forde had told her that she had hit Mr White.

[33]     There is abundant evidence from numerous other witnesses that Ms W   was significantly intoxicated.  She had been at a ladies night before coming to the hotel.  She came over to the hotel after the ladies night to find her four year old son who had turned up at the hotel and been put to bed at the hotel.   The incident of Mr White’s  death  occurred  after  2  am  in  the  morning.    There  is  evidence  that Ms W   was staggering at the time of her incident with Mr White which on the Crown’s theory led to the rupture of his artery.  She might well have had no memory of the incident next day.

[34]     Mr Shamy argued that all of these were matters to be weighed by the jury who should be left to make up their minds as to whether or not Ms W   could indeed  recall  the  incident  and  could  indeed  recall  on  her  own  account  hitting Mr White.

[35]     Were my analysis confined to the criteria under s 69(3), and particularly criterion (b), I do not know what I would finally decide.  However, I can, and indeed must, consider the criteria in s 8.  Subsection (2) is an important qualification.

[36]     I have reached the view that it would be unfair for statements to Ms Powell, obtained as confidential information to be used at the trial putting the defence upon the onus of explaining it as the reporting of Alana Forde and potentially forcing the defence to call Ms W  .   I am conscious that I am bringing to the standard of unfair  in  s  8(2)  the  fact  that  I  have  found  the  information  was  confidential information applying s 69.   It seems to me I am entitled to do that because the concept of unfair is sufficient to include having regard to the way in which the evidence was obtained.

[37]     I note  that  Mr  Hall  also  argued  that  as  the  statements  were  taken  from Ms Tanner and Ms Powell some time after the conversations they may not be a reliable record.  For example, in the case of Ms Powell, she may have forgotten and therefore not recollected that Ms W   told her she obtained the information from Ms Forde, as she told Ms Tanner.  I do not regard that as Mr Hall’s strongest point but it goes into the mix of factors to be considered.

[38]     In the end I have reached the conclusion that the evidence of Ms Powell should be excluded on the grounds that its probative value is outweighed by the risk that  her  evidence will  have an  unfairly prejudicial  effect  on  the proceeding.    I distinguish X, by contrast.  In this case the Crown has ample other evidence to prove its theory of the case and, secondly, because this is, in its context, not a clear-cut admission by Ms W  , as it was by the accused in X.  I distinguish Kaka, because there the nurse and the accused were friends.  The exchange between them could just as easily have taken place, independently of a self-harm assessment.   That is the context of paragraph [16]:

[16]      In our view the information at issue here was not confidential.   It was not elicited through the process of the self-harm assessment.   It was incidental to that process.  What Mr Kaka said was entirely voluntary.  He was intending to excuse himself and not fall out of favour with L.

[39]      I see  Ms  Tanner’s  evidence  as  of  a  different  category.    It  contains  no admissions by Ms W  .   Rather, it is advice by Ms W   that she cannot remember what happened.   Allowing that evidence to be read is not in a natural sense putting to the jury confidential information.  I have classified it as confidential information for the purpose of s 69 because I regard confidential information in that section to be read broadly as any information which is transferred by reason of confidence.  At that early stage of the analysis I think the most important task is to assess the context as involving confidence and trust first.   But, having said that, I do not think this decision should ever be read as a concluded view on that point.

[40]     What drives this decision, its ratio in my mind, is that a case has to be made out as to why relevant evidence should not be given whether or not it is obtained in confidence, and in the case of Ms Tanner’s evidence I do not see a case made out as to why her evidence should be excluded.  I do not think her evidence will unfairly prejudice Ms W  .  If Ms W   does give evidence and apparently can recall the incident with Mr White then on the contrary it would be unfair on the Crown not to have an opportunity to put it to the jury that recall would be contradictory to her prior statements to Ms Tanner.

Result

[41]     The evidence of Ms Powell is excluded by application of s 8.  The evidence of Ms Tanner is admissible by a combination of s 7 and the exercise of the discretion in s 69.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

PHB Hall, Christchurch, for Accused