Taylor v Witness C
[2017] NZHC 2146
•22 September 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-004-7370 [2017] NZHC 2146
BETWEEN ARTHUR WILLIAM TAYLOR
Prosecutor
AND
WITNESS C Defendant
Hearing: 28 - 31 August 2017 Counsel:
M Gibson and P K Noorland for Prosecutor
A Simperingham and H Vaughn for DefendantJudgment:
22 September 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 22 September 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitor/Counsel: M Gibson, Auckland
Woodward-Chrisp, Gisborne
ARTHUR WILLIAM TAYLOR v WITNESS C [2017] NZHC 2146 [22 September 2017]
[1] Shortly before trial the prosecution made an application to produce a DVD recording of an interview allegedly with Witness C on the Holmes television show. In a subsequent Minute, I signalled to the prosecution that leave pursuant to the hearsay provisions in the Evidence Act 2006 in respect of a statement purportedly made by a defendant was not required.1 I noted, however, that Mr Simperingham disputed the identity of the person in the recording. I indicated that in order to be admissible, I needed to be satisfied there was a proper evidential basis for the allegation that it is Witness C in the recording. I invited the parties to focus their
efforts on that aspect for the purposes of the application.
[2] The application was heard immediately after the jury was sworn in. I resolved to allow the application but on the basis that only the transcript of the DVD was to be produced to the jury. I disallowed purported identification evidence by Mr John Tamihere. Mr Gibson then indicated to me that a written ruling was not then required as there was a possibility Witness C would evidence, in which case he could be cross-examined on the DVD statements. Mr Simperingham agreed.
[3] It transpired that Witness C gave evidence and admitted he was interviewed by Mr Holmes, but claimed he was giving the interview under threat. Mr Gibson then sought to play the DVD to the jury because it would better assist them in determining whether the interview was given under threat. Mr Simperingham objected, noting the sensational nature of the DVD was prejudicial. He accepted however that the DVD interview was the best evidence of what in fact Witness C said, rather than the transcript.
[4] I amended my ruling and allowed the DVD to be played to the jury. My reasons for the initial ruling together with the final ruling follow.
Background
[5] Immediately before trial the Court of Appeal confirmed the suppression of Witness C’s identity.2 The background is helpfully outlined in that judgment which I largely adopt.
[6] Mr Taylor is prosecuting the defendant, Witness C, in a private prosecution. The charges relate to evidence Witness C gave in the trial of David Tamihere for the murder of Heidi Paakkonen and Sven Hoglin. The prosecution alleges this evidence was false, and charges Witness C with eight charges of perjury and one charge of attempting to pervert the course of justice.
[7] This application relates to evidence said to support those charges.
[8] The Crown’s case against Mr Tamihere in 1990 was wholly circumstantial, as the bodies of the victims had not been located. Key evidence included that of two trampers who spoke to a man they identified as Mr Tamihere, and saw a woman similar to Ms Paakkonen. She was wearing a poncho later found at Mr Tamihere’s house. He was also seen driving the rental car they had hired, was in possession of the keys, and was identified as having sold some of their belongings, with other belongings found at his house. A witness also gave evidence that Mr Tamihere’s son had showed him a watch said to have been given to him by his father, which appeared to be the same as a watch Mr Hoglin was wearing in a photo.
[9] Three prisoners also gave evidence that Mr Tamihere had spoken to them at different times while they were in custody describing how he had sexually assaulted and killed the couple. One of those witnesses was Witness C, whose evidence was that Mr Tamihere had confessed that he had:
(a) met the couple in a picnic or camping area;
(b)tied Mr Hoglin up, sexually assaulted him then killed him by beating his head with a lump of wood;
(c) sexually assaulted Ms Paakkonen, kept her prisoner for a time then killed her; and
(d)disposed of both bodies from a boat from 15 to 20 minutes from shore.
[10] Each of the prisoners’ accounts was inconsistent with the others. At trial, Mr Tamihere denied them but with the qualification that he had fed false stories of different kinds to five or six fellow prisoners so he could identify those who sought to “nark” on him to Police. This was confirmed by Mr Tamihere in evidence before me, though he emphasised the information he provided to other prisoners was about inconsequential matters. He said he spread this information to identify “narks” should those matters be repeated by the Police.
[11] Mr Tamihere was convicted of murder in December 1990. Ten months later, in October 1991, Mr Hoglin’s remains were found buried in a bush near Whangamata. His watch was found with his remains. A pathologist’s opinion was also significantly inconsistent with Witness C’s evidence, the pathologist concluding Mr Hoglin had suffered stab wounds in the neck and shoulder area, and that there may have been an attempt to decapitate him.
[12] In 1992, the Court of Appeal dismissed an appeal against conviction in which this subsequent evidence was admitted. The Court did so on the basis the jury would have placed little weight on the evidence of the prisoner witnesses (having been given a direction) and because the watch evidence was tenuous at best.
[13] Some years later, Witness C made contact with John Tamihere, David’s brother. He told John Tamihere that he wanted to recant on his trial evidence. An affidavit was prepared by Mr Tamihere and Witness C signed it on 25 August 1995. The signing was witnessed by Hyrum Parata, a lawyer. Among other things, the affidavit stated, in short, that he had lied at the trial about what Mr David Tamihere had told him and alleged the Police had offered him up to $100,000 together with assistance in obtaining parole if he gave a statement helping the Police prosecution.
The affidavit states Mr Tamihere had in fact always maintained his innocence, and had not confessed to the murders.
[14] John Tamihere held onto the affidavit but did not do anything with it until he released it to the media on 16 July 1996. The following day, on 17 July 1996, an interview on the Holmes television show aired in which a “Witness C” admitted to giving false evidence.
[15] There is also evidence that Witness C wrote a letter to David Tamihere in
June 2007 again recanting his trial evidence.
Initial ruling
Submissions for the prosecution
[16] Mr Gibson initially submitted the DVD should be admitted as:
(a) relevant evidence is admissible unless it is unfairly prejudicial;
(b)the Court only has to be satisfied that the DVD video concerned tends to prove Witness C is the person who Mr Holmes was interviewing;
(c) this test will be satisfied if it is more probable than not;3
(d)to the extent that the evidence is identification evidence, Mr Tamihere will give evidence that:
(i)Witness C was well known to him, had provided details over three phone calls and introduced himself as Witness C;
(ii) the information in his affidavit could have been known only to
Witness C; and
(iii)he retained the original of the affidavit until he released it to the media on 16 July 1996, the day before the interview.
3 Citing R v Anderson [2007] NZCA 554.
[17] Mr Gibson then submitted this test can be satisfied by comparing and noting the similarities between the comments allegedly made by Witness C in the Holmes interview and those Witness C made in his affidavit of 25 August 1995. In particular he emphasised:
(a) The Holmes interview of 17 July 1996 was conducted against the background of the affidavit having been released to the media the day before.
(b)The person interviewed is referred to as “Witness C” and at that time the defendant was also formally known and recorded as Witness C, due to suppression orders.
(c) In the interview, Witness C identifies himself to Mr Holmes as the author of the affidavit retracting a statement he had made against Mr David Tamihere.
(d) Witness C’s affidavit included the following statements:
Sanderson told me that a sum of money up to $100,000 was available should I decided to given a statement helpful to the Police...
…
David Wayne Tamihere never actually made any confession to me...
…
John Hughes ... supported me at my parole hearing...
(e) Answers in responses to questions based on the affidavit correspond to the affidavit statements including:
… it played on my conscience ... he always maintained his
innocence …
…
… there were major inducements offered to give evidence against
David Tamihere …
…
… at one parole hearing there was one officer present.
(f) Only one witness at the trial purported to retract his evidence.
Submissions for Witness C
[18] Mr Simperingham submitted the prosecution’s evidence fails to establish a
number of matters, in particular he submitted there is no evidence:
(a) from the supplier of the information to confirm it was Witness C on the phone;
(b) from a person with intimate knowledge of the interview; (c) of who made the phone call;
(d) of who arranged the interview;
(e) of steps taken by the interviewer to ensure the interviewee was in fact
Witness C;
(f) of what phone numbers were called; and
(g) of who supplied the interview to the prosecutor.
[19] Overall he submitted all the prosecution evidence established was that the day after Mr David Tamihere’s family released an affidavit they had held for a year, there was a phone interview. He contended the time and context assisted only in speculating that the interviewee was Witness C, and there was no evidence on which to base a finding that Witness C was the interviewee. He also said the DVD was identification evidence and had to meet the requirements of s 46. Witness C did not however deny, for the purpose of the application, that it was him being interviewed.
Assessment
[20] The Court of Appeal in Anderson addressed the threshold test for admissibility of the alleged statements by a defendant as follows:4
[7] Accordingly, the first question for the Judge was whether there was evidence tending to prove that Mr Anderson wrote the texts. The second question was whether that evidence ought to be excluded under s 8 on the ground that it will have an unfairly prejudicial effect on the trial.
[21] And:
[8] So far as the first of these questions is concerned, Ms Vidal argued that the Judge had to be satisfied, on the balance of probabilities “at least”, that Mr Anderson was in fact the author of the messages. We think that submission confuses the respective roles of judge and jury. Faced with a challenge to admissibility of any given item of evidence, the Judge had only to be satisfied that the item concerned tended to prove Mr Anderson’s authorship. It would do so if it made his authorship more probable than it would be without that evidence. If so, it was relevant and so prima facie admissible. The jury will answer the question whether Mr Anderson was in fact the author.
[22] I need not dwell on this ruling long given Witness C ultimately accepted he was interviewed by Mr Holmes and gave evidence at trial. But as I noted when I delivered my ruling I am satisfied the circumstances of the interview tend to prove Witness C was, in fact, interviewed:
(a) Mr Holmes states in the interview that he contacted a person called
Witness C.
(b) “Witness C” is the pseudonym used for the defendant in suppression
orders.
(c) There is nothing to suggest Mr Holmes was dishonest or unreliable in making contact with Witness C. We know from independent information that Witness C was known to the media and was in prison
at the time.
4 R v Anderson [2007] NZCA 554 at [7].
(d)Prior to his admission in evidence, Witness C did not deny he was the interviewee.
[23] The evidence has high probative value for the prosecution because it corroborates the statements made in the affidavit and responds to the defence claim that the affidavit was produced under threat of harm. The logic underpinning the prosecution case is that it is highly unlikely Witness C was under threat on three separate occasions over the span of 12 years, that is in 1995, 1996 and 2007.
[24] There are two types of prejudice arising from the DVD interview evidence. The first type is coterminous with its probative value. It corresponds to the weight the jury might be prepared to afford evidence that tends to suggest the affidavit was truthful and not prepared under threat. Any such prejudice arising is not unfair prejudice. The second type of prejudice arises from the sensationalised nature of the interview. Given Witness C was not (at the time of the first ruling) giving evidence, this impact could not be mitigated by his perspective on it – including categorical denial or, if not denied, contextual evidence that tended to support his version of events.
[25] Accordingly, I was not satisfied any risk of unfair prejudice was sufficient to outweigh the probative value of the material in the DVD. But I considered any unfair prejudice arising from the sensationalised nature of the recording could be mitigated by only allowing a transcript of the interview to go to the jury. On that basis I was content to allow a transcript of the DVD to be produced only.
[26] For completeness, Mr Simperingham’s argument that the DVD is identification evidence was misplaced. The DVD is not being adduced as voice identification evidence per se – that is as evidence that the voice heard is Witness C’s. Rather, save in one respect, the prosecution relied on the circumstances of the interview, not voice recognition, to establish that the defendant was interviewed.
[27] Mr Gibson’s reliance however on Mr Tamihere’s voice identification
evidence was always doomed to failure. The voice in the interview is masked, so
there is no prospect of Mr Tamihere’s evidence being admitted as voice recognition
evidence.
[28] In the result I concluded:
(a) The DVD transcript was admissible; but
(b) Mr Tamihere’s voice identification evidence was inadmissible.
Second ruling
[29] When Witness C elected to give evidence, he could, as of right, be cross- examined on the DVD interview. He admitted he was the interviewee. At this point, Mr Gibson made a renewed application to play the DVD to the jury. Mr Simperingham opposed the application, but was realistic about the fact that the DVD was the best evidence of what was said and how.
[30] It is nevertheless necessary to be satisfied that the probative value of the evidence is not outweighed by unfair prejudice. For this purpose, the significance of the evidence to the prosecution case and the notoriety of the interview are factors to be considered.
[31] The first factor, significance, was underscored at this stage in the trial by the claim by Witness C that he was being stood over by two anonymous prisoners at the time of the interview. The prosecution wanted to challenge this claim by precise reference to the context of the interview, including the way the questions were asked and the answers given. This was particularly important to the prosecution because of the central importance of corroborating the affidavit evidence and therefore David Tamihere’s evidence that he did not tell Witness C about the matters stated by Witness C at trial.
[32] I agreed with Mr Gibson that the DVD presentation provided a superior account of what transpired. While the voice is masked, the ebb and flow of the questions provides a better insight into whether the interview was in fact given under threat.
[33] Given the increased corroborating significance of the DVD interview, particularly where Witness C elected to bolster his case by giving evidence directly contradicting Mr Tamihere and claiming to be acting under threat, I formed the view that the jury should have the benefit of watching the DVD. This in my view outweighed the residual unfair prejudice arising from the notoriety of the interview, provided a direction was given to the jury to put no significance on its notoriety.
Outcome
[34] The DVD was presented to the jury subject to a direction that no significance should be placed on the notoriety of the context of the interview. However, Mr Tamihere’s purported identification evidence was not admitted.
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