R v Wensor
[2022] NZHC 2983
•15 November 2022
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-216
[2022] NZHC 2983
THE KING v
HENRY JOSEPH WENSOR
Hearing: 14 November 2022 Counsel:
C E Clarke for Crown R Weir for Defendant
Judgment:
15 November 2022
JUDGMENT OF CHURCHMAN J
[Admissibility of evidence]
[1] Henry Wensor (the defendant) has been charged with the murder of Levonne Wensor (the deceased). The deceased died in February 2022.
[2] The Crown seeks orders relating to the admissibility of certain evidence at trial. It seeks to admit:
(a)as hearsay evidence, excerpts from the formal written statements of the deceased’s mother and the deceased’s sister-in-law;
R v WENSOR [2022] NZHC 2983 [15 November 2022]
(b)excerpts from the formal written statements of the deceased’s eldest son and the deceased’s mother; and
(c)portions of the deceased’s youngest son’s video interview and the transcript of that interview.
[3] The hearsay application is made in reliance on ss 18(1)(a) and 18(1)(b)(i) of the Evidence Act 2006 (the Act). The hearsay evidence relates to statements made by the deceased in period leading up to her death, particularly regarding her relationship with the defendant. The other evidence is sought to be admitted on the basis that it is relevant. The applications are made in reliance on s 7 of the Act. The evidence sought to be admitted by the Crown relates to the defendant’s mental health, his relationship with the deceased, and his relationships with his wider family in the period prior to the deceased’s death.
[4] The defence opposes the Crown’s applications in part. Mr Weir submits in respect of the hearsay application that certain paragraphs sought to be admitted are not relevant. In his written synopsis he submitted that no information has been provided which gives reasonable assurance that the evidence is reliable. However, in his oral submissions he seemed to concede that the circumstances in which the hearsay statements were made are such so as to make them reliable. Mr Weir denies that the evidence has a logical connection with any element of the crime that the Crown is required to prove. He concedes that motive is a potentially relevant matter but submits that the proposed evidence is not relevant to motive being nothing more than speculation.
Relevant facts
[5] The defendant and the deceased had been married for approximately 30 years. It is alleged that the deceased was making plans to leave the defendant, and that on 14 February 2022, there was a physical altercation between the defendant and the deceased. It is alleged that the defendant stabbed the deceased with a kitchen knife in her throat and neck, causing her death.
Positions of the parties
The Crown
[6] Crown counsel, Ms Clarke, submits that the evidence sought to be admitted is relevant and admissible. In respect of the hearsay application, she says that the circumstances relating to the evidence provide reasonable assurance that the statements are reliable. She says that the evidence is relevant to the family’s dynamic and the states of mind of the deceased and the defendant in the lead up to the alleged murder.
[7] She submits that the hearsay statements were made by the deceased close in time to her death, while face to face with witnesses who had close relationships with her. She says that both witnesses were likely to have listened attentively, and that there is no evidence that the deceased would have lied to them, or that she had a tendency to lie. She says that there is no evidence establishing that the circumstances make those statements unreliable in any way, and that the deceased’s statements are corroborated by the deceased’s youngest son’s evidence.
[8] Ms Clarke submits as to the admissibility of the general evidence that it is relative to motive and the family dynamics prior to the death of the deceased. She relies on Perkins v R, where the Court of Appeal stated:1
where violence erupts in the familial context the underlying family dynamics are relevant to explain why and in what context alleged incidents occurred, and the effect of them.
[9] Ms Clarke submits that the deceased’s youngest son’s evidence is corroborative of the fact that the defendant was aware that the deceased was ending their marriage, and planning on leaving the house. She says:
The deceased was not only leaving the defendant and taking his son with her; she had told him that he would have to move out of the house as well. The defendant’s link to the wider world in terms of the deceased providing income, dealing with visitors and attending to all household chores would disappear once the deceased left and divorced him.
1 Perkins v R [2011] NZCA 665 at [21].
[10] As to the video interview of the deceased’s youngest son, Ms Clarke submits that he agreed to be interviewed, and that his grandmother, the deceased’s mother, (who now has full custody of him) also gave written consent. Detective Sergeant Allemann’s formal written statement was also provided, which illustrated the circumstances in which the deceased’s youngest son and his grandmother provided consent to the interview. Detective Sergeant Allemann’s view was that he was eligible and competent to give evidence.
[11] Mr Weir required Detective Sergeant Allemann for cross-examination. He put it to him that it would have been preferable for Detective Sergeant Allemann to have used the procedure available under the Oranga Tamariki Act 1989 to obtain a warrant in circumstances where both of the deceased’s youngest son’s parents were unavailable to give consent. Detective Sergeant Allemann acknowledged that such a course was an option but indicated that he believed that it was not needed in the circumstances given that the deceased’s youngest son was aged 14, presented as an intelligent and articulate young man who wanted to “tell his story” and had consented to be interviewed, as had his grandmother who, at that time, was applying for guardianship of the deceased’s youngest son and who, along with her husband, had subsequently been appointed his guardian.
[12] I am satisfied that, given the deceased’s youngest son’s age and maturity and his willingness to talk to Detective Sergeant Allemann, there was nothing inappropriate in Detective Sergeant Allemann speaking to him without obtaining a warrant.
Mr Wensor
[13] On behalf of Mr Wensor, Mr Weir submits that the evidence sought to be admitted by the Crown is not relevant. He says that it is not relevant as to motive, but is speculation after the fact. He says that it would be unfairly prejudicial to admit the evidence offered by the Crown.
[14] Mr Weir submits that the proposed relationship evidence only has a tenuous link to any of the issues in dispute. He says that there is no evidence of any desire by the defendant to harm the deceased in the event that she left the marriage. He says:
There is no evidence of the defendant’s unhealthy reliance upon the deceased nor of any psychological or psychiatric need to be in a relationship with her, such that any failure in the marriage would cause him to kill the deceased. Such evidence would be in context and relevant.
However, the proposed evidence has no tenuous (sic) link to the issue, and would invite the jury to speculate.
…
The central issue should be fair trial considerations. In the circumstances of this case, the admission of the evidence sought would be unfairly prejudicial, given the emotional nature of the proposed evidence.
[15] Mr Weir submits that there is no logical connection between the proposed evidence of motive and the crime charged. As to the hearsay evidence, Mr Weir submits that the real issue is relevance, and that the proposed evidence is unfairly prejudicial.
The hearsay application
[16] The Crown wishes to admit the following paragraphs from the formal written statements as hearsay evidence:
(a) the deceased’s mother: [30], [33]–[35], [38], [43], [45], [56], [74], [77]–
[79], and [82]–[85]; and
(b) the deceased’s sister-in-law: [24], [33]–[34], [38]–[46], [48]–[49], [52],
and [54].
The defendant opposes the admission of the following paragraphs:
(a) the deceased’s mother: [34], [77]–[78], and [82]–[85]; and
(b) the deceased’s sister-in-law: [24], [38]–[46], [48]–[49], [52], and [54].
[18] The defendant does not oppose the admission of the remaining paragraphs. As noted by Ms Clarke, it is unclear why Mr Weir only opposes some of the hearsay evidence, given the circumstances in which the statements were made appear to have
been the same. I accept Ms Clarke’s submission that there appears to be no logical basis for admitting some evidence about aspects of the family dynamic but not others.
[19] The statements that the Crown wish to tender fall within the category of hearsay. Section 4 of the Evidence Act defines hearsay statement as a statement that:
(a)was made by a person other than a witness; and
(b)is offered in evidence at the proceeding to prove the truth of its contents.
[20] The Act provides that hearsay statements are generally not admissible. Section 17 says:
A hearsay statement is not admissible except–
(a)as provided by this subpart or by the provisions of any other Act; or
(b)in cases where–
(i)this Act provides that this subpart does not apply; and
(ii)the hearsay statement is relevant and not otherwise inadmissible under this Act.
[21] There are limited circumstances in which a hearsay statement may be admissible. Section 17 of the Act provides:
(1)A hearsay statement is admissible in any proceeding if–
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)either–
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
[22] Section 16 of the Act defines the circumstances in which it can be said that a witness is unavailable. A witness is unavailable if they are deceased. The statements the Crown wishes to admit are all statements made by the deceased to either the deceased’s mother or the deceased’s sister-in-law.
[23] The question therefore becomes whether the circumstances relating to the statements provide reasonable assurance that the statements are reliable. I note that the jury is the “ultimate arbiter of [a] statement’s actual reliability”.2 All that is required is a reasonable assurance of reliability. Generally where there is corroboration, the circumstances in which a statement is made does not adversely affect its reliability.3 The focus is on the statement itself, rather than the witness who is giving evidence of it.4
[24] Section 16(1) defines the word “circumstances” which is used in s 17(1)(a), saying:
Circumstances, in relation to a statement by a person who is not a witness include–
(a)the nature of the statement; and
(b)the contents of the statement; and
(c)the circumstances that relate to the making of the statement; and
(d)any circumstances that relate to the veracity of the person; and
(e)any circumstances that relate to the accuracy of the observation of the person.
[25] Nothing has been put before the Court that would indicate that the circumstances in which the statements were made provide anything other than a reasonable assurance that the statements were reliable. I accept the submissions made by Ms Clarke. The statements appear to have been made by the deceased to close family members while they were alone together, and were offered in confidence. There is no suggestion that the deceased was being anything other than truthful, and the content of the statements are corroborated by both witnesses and also the deceased’s youngest son’s evidence. Nor is there any suggestion that the observations of the witnesses are likely to be inaccurate. Accordingly, in respect of the evidence of both the deceased’s mother and the deceased’s sister-in-law, I am satisfied that there is a reasonable assurance of reliability in respect of the statements made by the deceased.
2 Wilson v R [2017] NZCA 455 at [30].
3 Reid v R [2015] NZCA 175; Nisha v R [2015] NZCA 178; and Wilson v R, above n 2.
4 Booth v R [2013] NZCA 371 at [15]; and Adams v R [2012] NZCA 386 at [25].
[26] The final consideration is then whether the probative value of the evidence outweighs the risk that it might have an unfairly prejudicial effect on the proceedings.5 The Court must consider the right of a defendant to offer an effective defence.6 It must also consider the possibility of mitigating any prejudicial effect through judicial directions.7 In this context, it is important to note that any prejudicial effect must be illegitimate in order to render the evidence inadmissible. The fact that a piece of evidence may have a prejudicial effect is not enough, that effect must be illegitimate.8
[27] I am not satisfied that the admission of the hearsay statements opposed by Mr Weir would have an unfairly prejudicial effect. The evidence also has a reasonable degree of probative value in respect of establishing:
(a)the relationship between the defendant and the deceased in the lead up to, and at the time of her death;
(b)the broader family dynamic in the lead up to, and at the time of her death; and
(c)any potential motive or trigger for the use of violence by the defendant.
[28] In that respect, I consider that any prejudicial effect the admission of that evidence may have, will be legitimate. I do not accept Mr Weir’s submission that the proposed evidence as it relates to motive is irrelevant or unfairly prejudicial. Where a defendant is charged with murder, a matter that will be in issue is intention, a factor which involves a consideration of what motive the defendant may have had to commit violence. Evidence which speaks to that factor is therefore relevant to that issue, and I am satisfied that is the case in respect of the evidence the Crown seeks to admit. Indeed, in his oral submissions, Mr Wier acknowledged that evidence going to motive was potentially relevant. Accordingly, the hearsay evidence is admissible.
5 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [53].
6 Evidence Act 2006, s 8(2).
7 R (CA89/18) v R [2018] NZCA 341 at [67].
8 Hudson v R [2010] NZCA 417 at [43].
General admissibility application
[29]The Crown seeks to admit the evidence of:
(a)the deceased’s eldest son’s formal written statement ([11]–[13]; [22]– [26]; and [49]–[59]); and
(b)the deceased’s mother’s formal written statement ([57]–[88]; and [96]).
[30] It seeks to do so on the grounds that the evidence is relevant as it has a tendency to prove:
(a)the nature of the relationship between the deceased and the defendant in the months and days leading up to the deceased being killed; and
(b)the behaviour of the deceased and the defendant in the days prior to the deceased being killed.
[31] The Crown seeks to admit the following passages from the deceased’s youngest son’s video interview transcript:
(a)page 9, line 22 to line 34;
(b)page 10, line 3 to line 18;
(c)page 11, line 1 to page 14, line 7;
(d)page 14, line 25 to page 15, line 10;
(e)page 30, line 14 to page 31, line 7; and
(f)page 71, line 27.
[32] It seeks to do so on the ground that the evidence is relevant as it has a tendency to prove:
(a)the nature of the relationship between the deceased, the deceased’s youngest son and the defendant in the months and days leading up to the deceased being killed; and
(b)the behaviour of the deceased and the defendant in the days prior to the deceased being killed.
[33] In order for the evidence to be admissible, it must be relevant.9 In order to be relevant, the evidence must have a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.10 A Judge may decline to make an order under s 101(5) of the Criminal Procedure Act 2011, as it relates to admissibility of evidence at trial.11 However, the threshold for admissibility is low.12 Relevance is a question of whether evidence could relate to an issue at trial. The Supreme Court has stated:13
[43] Where relevance to a fact is questioned, the Judge must determine whether the evidence “is reasonably capable of supporting the fact”. If it is, then the evidence is relevant and, subject to rules of exclusion on policy grounds, must be left to the jury to evaluate. If it is not, the evidence must not be admitted.
[34] Additionally, a key plank of relevance is materiality – the evidence must speak to a matter which is material to the determination of the proceedings.
[35] The evidence sought to be admitted by the Crown is clearly material to the determination of issues likely to be raised at trial, and reasonably capable of supporting or relating to the nature of relevant relationships, and the behaviour of the deceased and defendant. It is directly relevant to motive. Defence counsel has failed to identify any basis upon which the evidence sought to be admitted is not relevant to matters that will be material at trial, and which should properly be put before the jury.
9 Evidence Act, s 7(2).
10 Section 7(3).
11 R v Fenton [2008] NZCA 163 at [20]. I note this decision was made in respect of the now repealed s 344A of the Crimes Act 1961.
12 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
13 Bain v R [2009] NZSC 16, [2010] 1 NZLR 1.
[36] Finally, I must again consider the s 8 requirement that evidence with a probative value which is outweighed by the risk of an unfairly prejudicial effect must be excluded. It follows from my comments above in relation to the Crown’s hearsay application that I consider that the other evidence sought to be admitted by the Crown is unlikely to have an unfairly prejudicial effect at trial. Defence counsel have not identified any basis upon which it could be said that the evidence sought to be admitted by the Crown would have an unfairly prejudicial effect.
Result
[37]All three of the Crown’s applications are granted in the terms applied for.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth for Crown cc: R Weir for Defendant
0
4
0