R v Young
[2012] NZHC 847
•1 May 2012
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 AUCKLAND REGISTRY
CRI-2011-092-001800
CRI-2011-092-001799 [2012] NZHC 847
THE QUEEN
v
PATRICK FRANCIS YOUNG AND
ANA RUNANGA PETSY EDMONDS (ALSO KNOWN AS EDWARDS)
Hearing: 30 April 2012
Counsel: S J Gray and M R Galler for the Crown
D S Wallwork and S D Cassidy for the Accused Young
S Tait and H Kim for the Accused Edmonds
Judgment: 1 May 2012
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 1 May 2012 at 9.45 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
R v YOUNG and EDMONDS HC AK CRI-2011-092-001800 [1 May 2012]
[1] The indictment laid against the accused, Patrick Young, contains two counts. Count 1 alleges that between 26 January 2011 and 30 January 2011, at Auckland, he murdered Aran Jenkanying. Count 2 alleges that on or about 26 January 2011, with intent to cause grievous bodily harm to Arunlee Jenkanying, he caused her grievous bodily harm. At the commencement of the trial, Mr Young pleaded not guilty to count 1, but guilty to count 2.
[2] At this stage in the trial, the Crown is due to lead medical evidence on the injuries that led to Mr Jenkanying’s death. The Crown has indicated that it also wants to lead medical evidence of the injuries sustained by Ms Jenkanying. This medical evidence would describe Ms Jenkanying as suffering from the following injuries: mild bleeding in the brain, with bruising to the right side of the brain next to it; a fracture of the right side of the skull; a fracture of the right cheek; a fracture of the central part of the skull bone; a bruise to the neck; and a bruise to the right hand and forearm.
[3] The Crown contends that evidence of the nature and extent of the injuries Ms Jenkanying suffered is relevant to the nature of the assault on her, which in turn is said to be relevant to the accused’s state of mind when it comes to proof of count 1. The Crown contends that the injuries suffered by Mr Jenkanying and Ms Jenkanying were part of a single violent incident and that evidence of the violence inflicted on Ms Jenkanying is available to the jury from which to draw an inference of the level of violence the accused also displayed towards the deceased, Mr Jenkanying. The Crown contends that both incidents are interconnected, they occurred at much the same time; the attack on Mr Jenkanying was followed almost immediately by the attack on Ms Jenkanying, and the violence was of a similar type. Both victims suffered similar injuries to the head through use of the same weapon.
[4] The Crown also contends that the evidence of the injuries to Ms Jenkanying is relevant to excluding self-defence and to proving the accused had a murderous intent.
[5] The accused opposes the admissibility of the medical evidence of the extent of injury suffered by Ms Jenkanying. He does not dispute that the injuries were
committed. Indeed, by pleading guilty to count 2, he has admitted that he struck serious blows to her head. However, the accused contends that whilst the subject evidence would have been relevant to proof of count 2, it is in no way relevant to proof of count 1.
[6] The Crown contends that the subject evidence is directly relevant and, if not, that it is relevant as propensity evidence. The accused disputes its direct relevance and its availability for use as propensity evidence.
[7] The first question is to determine whether or not the evidence falls within the category of being directly relevant, or whether it falls to be considered under propensity evidence.
[8] The conclusions I draw from the Supreme Court’s decision in Mohammed v R [2011] 3 NZLR 145 at [2]-[3] is that evidence can be categorised as directly relevant when it goes to prove one of the elements of the offence for which an accused is being tried. Excluded from this definition is propensity evidence, which is defined in s 40(1) of the Evidence Act 2006 as being evidence that tends to show a person’s propensity to act in a particular way, or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved. Propensity evidence covers a propensity to behave or think in relation to a specific person, as well as a propensity to behave or think in a particular way as regards persons more generally. At [23] of Mohammed, Tipping J (who delivered the majority verdict) said that the rationale for the admission of propensity evidence rests largely on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. Tipping J noted, however, the importance of recognising that the definition of propensity evidence refers to a tendency to act in a particular way, or to have a particular state of mind. Thus, it was necessary that the propensity evidence have some specificity about it. The specificity in order to be probative must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.
[9] I am satisfied that medical evidence of the extent of the injuries suffered by Ms Jenkanying is not directly relevant to proof of one of the elements of the offence of murder in count 1 against Mr Jenkanying. It follows that this evidence can only be admissible if it can be used as propensity evidence.
Principles
[10] The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence satisfies the requirements of s 43 of the Evidence Act 2006. The Court of Appeal in Vuletich v R [2010] NZCA 102 has emphasised the importance of keeping the analysis to determine the admissibility of propensity evidence within the statutory framework. Thus, a Court faced with the task of determining the admissibility of propensity evidence should:
(a) Identify the nature of the issue in dispute (s 43(2));
(b)Analyse the probative value of the evidence using the factors in s 43(3);
(c) Analyse the prejudicial effect of the evidence using the factors in s 43(4);
(d) Weigh the probative value against the prejudicial effect; and
(e) Admit the evidence only if its probative value outweighs the risk that it may have an unfairly prejudicial effect on the defendant (s 43(1)).
Subsequent cases have followed this approach: see M (CA 198/90) v R [2010] NZCA
219; Freeman v R [2010] NZCA 230.
[11] The approach formulated in Vuletich necessitates detailed, critical analysis within the s 43 factors. This requires identification of a specific issue and careful consideration of the similarity between the facts in issue and the facts relevant to the propensity evidence. Whilst previous cases relied on judicial direction to overcome prejudice and the evidence unfairly predisposing the jury against the accused, it
appears that the level of faith now placed in judicial direction is inversely proportionate to the level of potential prejudice.
[12] When assessing the prejudicial effect of evidence on a defendant, the judge must consider among other matters whether the evidence is likely to unfairly predispose the fact finder against the defendant; and whether the fact finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[13] Here, the Crown relies on two issues in dispute: first, the issue of whether the Crown can satisfy the jury that the accused was not acting in self-defence when he struck Mr Jenkanying; and second, whether the Crown can prove that when the accused struck Mr Jenkanying on the head, the accused acted with murderous intent. The two aspects of murderous intent the Crown relies on here are that the action was carried out with an intent to kill Mr Jenkanying, or, alternatively, the assault occurred because the accused intended to cause Mr Jenkanying bodily injury, which the accused knew to be likely to cause death, and he was reckless as to whether death ensued or not. I will deal with each issue in turn.
[14] Self-defence raises three questions:
(a) Did the accused use force for the purpose of defending himself;
(b) What were the circumstances as the accused believed them to be; and
(c) Was the force used reasonable in the circumstances?
[15] The Crown says that it wants to use the subject evidence to show the accused was the aggressor and not defending himself. That is relevant to the first and second questions.
[16] Murderous intent raises the following questions:
(a) Did the accused intend to kill Mr Jenkanying;
(b)Did the accused intend to harm Mr Jenkanying and was the accused reckless as to whether or not death ensued?
[17] The Crown says that the use of force applied to Ms Jenkanying proves that the accused has a tendency to act in a violent way, or to have a state of mind where he intended to do serious harm to those he attacked that day.
[18] Section 43 sets out the matters the courts may consider in assessing whether the probative value of the proposed propensity evidence outweighs its prejudicial effect. When the s 43 factors are considered, the following is relevant:
(a) Section 43(3)(a) – the frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred:
Here, there were two attacks;
(b)Section 43(3)(b) – the connection in time between the acts, omissions, events or circumstances which are the subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried:
Here, the attack on Ms Jenkanying happened almost immediately after the attack on Mr Jenkanying. So there is a close connection in time;
(c) Section 43(3)(c) – the extent of the similarity between the acts, omissions, events or circumstances which are the subject of the evidence, and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried:
Here, there is a close similarity, as the attacks on both victims involved the use of the same weapon and both attacks involved blows to the head, which in the case of both victims resulted in fracture of their skulls;
(d)Section 43(3)(d) – the number of persons making allegations against the defendant that are the same as or similar to the subject of the offence:
Here, there are two persons making the same or similar allegations;
(e) Section 43(3)(e) – whether the allegations described in (d) may be the result of collusion or suggestibility:
There is no suggestion that is the case here; and
(f) Section 43(3)(f) – the extent to which the acts, omissions, events or circumstances which are the subject of the evidence, and the acts, omissions, events or circumstances which constitute the offence for which the offender is being tried are unusual:
The Crown contends that the attacks here are unusual, as they both spring from a violent reaction on the part of the accused in a dispute over the sale of a family home.
[19] The attack on Ms Jenkanying occurred after the attack on Mr Jenkanying. However, it is clear from the Court of Appeal’s judgment in Solicitor-General v Rudd [2009] NZCA 401 that evidence of later offending can be admissible as propensity evidence (at [27]).
[20] The accused accepts that propensity evidence can include evidence of conduct that post-dates the conduct for which he is on trial. He contends that the prejudicial effect of the subject evidence outweighs its probative value.
[21] He has not objected to evidence from eyewitnesses of what they saw regarding the attacks that day, including the attack on Ms Jenkanying. However, he objects to the medical evidence of the extent of her injuries on the ground that it cannot necessarily be inferred from the extent and seriousness of her injuries what his intent was in relation to the offence on Mr Jenkanying. In this regard, he says the
evidence of the serious head injury to Ms Jenkanying cannot be used to support an inference of the intent behind the actions that led to the injury to Mr Jenkanying.
[22] The accused also argues that the intent that is an element of the offence of grievous bodily harm in count 2 is different from murderous intent; so that the intent to inflict grievous bodily harm on Ms Jenkanying cannot support an inference that he intended to inflict a life-threatening injury on Mr Jenkanying and was reckless as to whether or not it led to the death of Mr Jenkanying.
[23] Regarding the test for propensity, the accused submits that the frequency of the actions is insufficient; and there is nothing particularly remarkable about the two sets of offences. In this regard, I was referred to [34] of Solicitor-General v Rudd [2009] NZCA 401 at which the Court of Appeal recorded its agreement with an observation in R v Hanson [2005] 1 WLR 3169 at [9] (CA) to the effect that:
There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charges: compare Director of Public Prosecutions v P [1991] 2 AC 447, 460-461. Child sexual abuse or fire-setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list.
[24] I consider that the subject evidence has probative value as propensity evidence. Whilst the frequency with which the attacks occurred is minimal, the extremely close connection in time between both attacks and their similarity, insofar as they both involved the use of the same weapon being applied to the victims’ head with force that created a skull fracture in circumstances where both victims were associated with the dispute over the sale of the family home, could suggest that the accused on the day in question had a particular state of mind towards both victims. The available inference being that this state of mind included an intent to inflict serious bodily harm on both victims. The evidence, therefore, is probative of the issues in dispute that I have identified regarding self-defence and murderous intent, insofar as it goes to show a state of mind intent on inflicting serious bodily harm to both Mr and Ms Jenkanying.
[25] I have considered the decision in Ah You v R [2011] NZCA 82 where the Court of Appeal held that evidence of earlier robbery/burglary offending could not be used as propensity evidence to prove murder of a victim of burglary. On the earlier occasions, there was no evidence that Mr Ah You had a murderous intent, nor was there evidence he had committed grievous bodily harm: see [23]-[25] of the judgment. Rather, the inference sought to be drawn was the vague one that Mr Ah You “used as much force as was required to effect his purpose”. Thus, the Court of Appeal considered the evidence of earlier offending was not relevant to proof of a murderous intent, but the evidence was highly prejudicial. I consider this decision is distinguishable from the present case. Here, the proposed propensity evidence, which also involves a serious use of force, is relevant to proof of a murderous intent and to excluding self-defence.
[26] I now turn to consider the prejudicial effect of the evidence, using the factors in s 43(4).
[27] Section 43(4) requires me to consider among other matters whether the propensity evidence is likely to unfairly predispose the fact-finder against the defendant; and whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[28] In the present case, the jury has already heard evidence from other witnesses, who saw aspects of the attack on the day in question. Those witnesses have described in their own words the attack on Ms Jenkanying. In addition, Ms Jenkanying in her evidence described the attack on herself. The accused did not object to any of this evidence. In addition, the jury has seen the accused plead guilty to count 2. Thus, they are already informed at the attack on Ms Jenkanying. The medical evidence simply goes to prove the nature of the injury inflicted and its resemblance to those inflicted on Mr Jenkanying. The relevance here being that this reveals the state of mind of the accused at the time of the attack on Mr Jenkanying.
[29] In all the circumstances, I do not consider that the addition of medical evidence of the extent of the injuries will unfairly predispose the jury against the accused. They already know that he inflicted injuries on Ms Jenkanying. The
medical evidence goes further than the other evidence in that it shows that the accused was able to apply a stick with such force to Ms Jenkanying’s head that it caused a fracture of her skull. To the extent that the injuries described are shocking, the effect is a natural consequence of the accused’s actions, rather than of the nature of the evidence, as was noted at [30] in R v Weatherston [2009] NZCA 267. I consider this evidence is highly probative when it comes to proof that the accused had the necessary state of mind on the day to apply a stick with equal force to the head of Mr Jenkanying. In this regard, it is highly probative evidence that counters the potential inferences of the accused acting in self-defence when he struck Mr Jenkanying or not having an intent to seriously harm Mr Jenkanying.
[30] I do not consider that the evidence of the injuries will unfairly predispose the jury against the accused and that any prejudice can be overcome with trial directions. I consider, therefore, that the probative value of the medical evidence outweighs the risk that it may have an unfairly prejudicial effect on the accused. The Crown can, therefore, lead evidence that informs the jury of the nature of the injuries Ms Jenkanying sustained. But the evidence should go no further than a simple matter of fact description of those injuries.
Duffy J
Counsel: D S Wallwork P O Box 76500 Manukau City Manukau 2241 for the Accused
Young
S Tait P O Box 76538 Manukau City Manukau 2241 for the Accused Edmonds
Solicitors: Meredith Connell P O Box 2213 Shortland Street (DX CP24063) Auckland 1140 for the Crown
Copies To: S D Cassidy P O Box 26172 Epsom Auckland 1344
H Kim P O Box 76538 Manukau City Manukau 2241
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