The Queen v James Henry Wilson
[2001] NZCA 197
•4 July 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA448/00 |
THE QUEEN
V
JAMES HENRY WILSON
| Hearing: | 21 May 2001 |
| Coram: | Keith J Goddard J Chambers J |
| Appearances: | P G Mabey QC for the Appellant |
| G Hollister-Jones and S Mount for the Crown | |
| Judgment: | 4 July 2001 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
The appellant was found guilty of murder by a jury in the High Court at Rotorua. He appeals against his conviction.
The Crown alleged that the appellant murdered the deceased by shooting her with a .22 calibre pistol, while she was asleep in her bed at home. The principal Crown evidence consisted first of three pieces of real evidence linking the appellant to the murder scene:
(1)A .22 calibre cartridge case found on the floor of the deceased’s bedroom, the case being matched to a case found at an address at which the appellant’s pistol was used for practice firing.
(2)A mucous deposit matching the appellant’s DNA found on the verandah near to the deceased’s bedroom entrance which was used by the murderer to remove the deceased and household items found with her.
(3)A piece of fibreglass which was found on the ground near to the end of the drag trail and which was matched to other samples of fibreglass coming from a cast placed on the appellant’s forearm the day before the murder.
Two witnesses also testified that the appellant had confessed to them on the day following the murder. A third witness said that the appellant had made a passing comment to the effect that he had killed the deceased.
The Crown called attention to the appellant’s actions in attempting to procure other persons to confess to the murder. There was as well evidence of his open dislike of the accused; of statements to associates that he was going to “give her the bullet”; of his knowledge that she had asked another to prepare a drug for a rival gang she was connected with at a time when that particular drug was the primary income source of the gang of which the appellant was the president; of the appellant’s opportunity on the night in question; and of his subsequent efforts to conceal and destroy evidence.
The appellant’s defence was that he was not the murderer. In particular, the Crown witnesses were deliberate liars who had conspired together to frame him; a named individual was the true murderer; and the appellant was at home in bed at the time of the murder. The appellant’s wife and a friend of hers testified in support of that alibi. The appellant explained the presence of the physical evidence at the murder scene by saying he visited the scene the following morning. He denied having confessed to the witnesses and claimed that in fact one of those witnesses had confessed to him.
The jury were presented with two starkly different views of the facts. The only real point of agreement was that the deceased had been murdered. In support of the defence, the character and honesty of several Crown witnesses were challenged and accused, directly or indirectly, of perjury. Several of the Crown witnesses were subjected to detailed cross-examination about their prior convictions. As the trial Judge pointed out in one of the rulings in issue on this appeal, “the accused has not hesitated by learned counsel to attack in the most stringent terms the credit of many important Crown witnesses” (para [19] below). In that context, it was to be expected that the accused would also, as he in fact did, testify to his own list of previous convictions.
While he was on remand in prison the appellant convinced another prisoner to confess to the murder. As a result, the appellant was charged with attempting to pervert the course of justice as well with murder.
At the first trial on those two charges, the jury found the appellant guilty of attempting to pervert the course of justice, but could not agree on the murder charge. The second trial followed.
The grounds of appeal
Mr Mabey QC, for the appellant, contends that at the second trial there was a miscarriage of justice. In particular, he challenges two rulings made by the trial Judge – one granting leave to cross examine the appellant on a statement that was said to be inconsistent with an alibi defence he presented in a 1992 case and the other allowing cross-examination on the previous alibi. The two rulings are closely linked in their substance and were made in close sequence at the trial in the course of the cross-examination of the appellant – the first at the end of the thirteenth day of the trial, the second at the beginning of the next sitting day. In the end the objections are of course to the evidence that was admitted following the rulings : the evidence was said to be self incriminatory and obtained in breach of the appellant’s privilege against self-incrimination, in part because the prosecutor improperly pressed the questioning; and the improperly prejudicial effect of the evidence outweighed its probative value.
The previous alibi
In 1992 the appellant was charged with offences involving armed robbery and acid throwing. He presented an alibi defence with similarities to that in the present case: he had spent the night with a former partner who, together with a female friend of the former partner, were visiting Tauranga on the night of the incident and were able to testify that the appellant spent the night in their company.
Following the first of the present two trials the appellant was to be sentenced on the charge of attempting to pervert the course of justice. The Crown alleged at the second trial that he told a probation officer that he had been present when the offences, the subject of the 1992 charges, were committed. That statement, the Crown says, is inconsistent with the alibi defence he presented in 1992, went to his credit and accordingly was rightly the subject of cross-examination in accordance with the Judge’s ruling. The appellant, to the contrary, said that his being questioned about that matter and being required to answer would be in breach of his privilege against self incrimination.
Trial ruling on the inconsistent statement : self incrimination
Defence counsel at the trial submitted that the appellant should be warned of his privilege against self incrimination on the basis that were he to confirm the statement he allegedly made to the probation officer he was in jeopardy, being liable to a charge of wilfully attempting to pervert the course of justice at the 1992 trial. The trial Judge recorded the reasons for his ruling at the end of the day on which he gave it in these terms:
Remote though such jeopardy is in reality, I accepted that technically the witness was probably entitled to the benefit of such a warning, notwithstanding that in reality if the privilege were invoked the evidential consequences would achieve the Crown’s purpose in any event. When the jury returned the warning was given and the privilege was invoked in respect of an inquiry whether the witness now admitted that he was actually present when the actus reas of the 1992 offending occurred.
Immediately following that ruling, the Crown prosecutor asked the appellant whether the aggravated robbery, grievous bodily harm and indecent assault, of which he had been convicted in 1992, had occurred at Terere. Yes, was the answer. The prosecutor went on:
Do you now accept that you were present but it was as an act of retribution against the man who was the victim?
OBJECTION BY MR BIDOIS [counsel for Mr Wilson] – ask that he be given a warning
BENCH – MR WILSON if to answer that you were present at the time could tend to incriminate you, you would be entitled to decline to answer on that ground, do you understand? Yes.
If you admit you were present at the time the incident actually occurred would tend to incriminate you, you may decline to answer on that ground? NODS
COUNSEL – in relation to the [Terere] matter do you now accept that you were present but that it was an act of retribution against the male victim? I decline to answer on the grounds that it may incriminate me.
BENCH – the question had two elements to it, one related to presence, the other related to motive. You may have to ascertain which element he is invoking his privilege for.
COUNSEL – I’ll ask it separately. In relation to [Terere] do you now accept that you were there? I again decline to answer that.
On the following morning, after the Judge had made the other ruling in question in this appeal, the Crown prosecutor picked up the thread:
MR WILSON, recently when asked by a probation officer … about your 92 convictions, did you tell her
OBJECTION BY MR BIDOIS
RULING BY JUDGE
Recently when asked by a probation officer … about your 92 convictions, did you tell her that you were present?
BENCH – technically the witness could answer it, it being different in character from asking whether that was the truth or not. Whether that gets the Crown any further, I don’t know. The privilege is there you will recall Mr Wilson.
WITNESS – I decline to answer that question.
BENCH – You have to answer that question. What you told her is simply what you told her. You are not being asked whether its true or false when you told her that.
WITNESS – Yes I did tell her that.
COUNSEL – Was that the truth? Yes it was the truth.
The prosecutor’s questions then immediately turned, in terms of the Judge’s second ruling (considered later), to the details of the alibi defence presented in this case, and then returned to details of the 1992 alibi, calling attention by inference to the common pattern of the two alibi defences. That exchange led to this question and answer:
QYou now accept that you were present at the time of the [Terere] offence?
A That’s right.
Mr Mabey’s essential argument on appeal is that the appellant’s privilege against self incrimination has been overridden. The prosecutor improperly pursued the questioning after the appellant had claimed the privilege. The result is that the appellant’s acknowledgement about the offending, the subject of the 1992 convictions, was wrongly before the jury. That error, he said, was compounded by the other ruling which, together with the first, enabled the cross-examination of the appellant on the similarity of the two alibis, the earlier of which he had, as a result of the overriding of his privilege, now acknowledged to be false.
Because of the close connection between the rulings it is convenient to set out at this stage the second ruling which allowed cross-examination of the appellant about the similarities between the two alibi defences.
Trial ruling allowing cross-examination about similarities between the alibis
To repeat, the alibi defence to the murder count was that on the relevant night the appellant was home with his partner and a visiting female friend, who was able to corroborate the partner’s evidence. The Crown wished to cross examine the accused on the two alibis with the purpose of challenging his credit in connection with that alibi, it being a necessary part of his defence that he give evidence that he was home with the other two witnesses. That matter was first raised by the Crown pre-trial but was left over by the Judge for later determination. At the earlier stage the Judge said:
[9]The third matter for consideration is whether in the event that the accused gives evidence he can be cross-examined in respect of any defence of alibi he may raise. The Crown anticipates the possibility of an alibi defence along the lines run in the previous trial. Put briefly, the defence was that the accused was at home with his wife on the evening of the homicide and that a good female friend of the wife was also present, so each of those women is able to confirm the other and support the accused’s alibi.
[10]It is, of course, possible, and may sometimes be the truth, that a person accused is at the relevant time elsewhere, in particular at home with his wife or female partner. It may seem unusual that a close friend of the wife or female partner is also fortuitously present to confirm the alibi. Such accused are lucky to have confirmatory evidence of alibi of that nature. This particular accused appears to have been lucky on a previous occasion in exactly the same way. Having been charged with a very serious violent offence in 1991 he raised the defence of an alibi, in particular that he was home with his de facto wife who was confirmed in her alibi evidence by the fortuitous presence of a close woman friend at the time. To suggest that lightning has struck twice does not do justice to the good fortune that was claimed. It might be open to a jury to conclude that however lucky the first occasion was, the second occasion is pure imagination.
[11]The difficulty is that any probative value the coincidence or otherwise might have is counterbalanced by the prejudice of disclosure of a prosecution of the accused on a prior occasion for a serious offence. Without determining whether there is adequate probative value anyway on a similar fact basis in the nature of the possible alibi, any such value would have to be balanced against prejudice necessarily arising from the context. This cannot be done prospectively. The weighing and balancing exercise would have to be done in the context of the trial at the time the circumstances arose, and I am of course quite unprepared to predict that course.
[12]I am obliged to counsel for bringing this potential evidential issue to my attention so that I may have it in mind should circumstances arise, but I am not able to deal with the application at this stage and I adjourn that also.
In his ruling in the course of the trial, which was given once much of the evidence was before the Court, the accused had testified to his earlier convictions at the beginning of his evidence, and he was being cross-examined, the Judge said this:
[4]Normally cross-examination of an accused about a previous defence, including a defence of alibi, would not be permitted because an inquiry in that direction would introduce before the jury the fact of a previous conviction or alleged criminal offending. That position does not obtain here because the evidence, including the candid evidence of the accused himself, has shown the jury that Mr Wilson was tried and convicted in 1992 for serious offences. The issue then is whether the fact that an alibi was raised in the previous matter is unduly prejudicial having regard to any probative value it may have.
[5]Of course there would be a prejudice in the coincidence of alibi simpliciter. What one has to examine is whether there is a relevant probative value. If there is a probative value it lies in the similarity, or alleged similarity, of the two alibis. If a jury were able to say “well whether or not the original alibi were correct, it is a strange thing that the alibi on this occasion is so extraordinarily similar to that advanced on the previous occasion that we think that it needs to be examined very carefully in relation to the supporting witnesses.” The degree of probative weight will depend on the degree of relevant similarity.
[6]Conscious of this, Mr Bidois submits that there is no relevant similarity. There is nothing unusual in a person being at home with one’s intimate partner during a night, so that truthful alibis in connection with offences committed at night will most likely be an alibi to the effect that one was at home with one’s wife or partner or girlfriend or whatever. If that is as far as the matter went I would agree with Mr Bidois’ submission. What the Crown says, however, is that it is not merely a case of the supporting witness being the accused’s partner on each occasion. That would be unexceptional. It is the fact that on each occasion there is a fortuitous presence of a corroborating witness at the time the accused is allegedly in the presence of two women. The Crown says that in 1992 both women, each of whom corroborated the other and the accused, were unusually in Tauranga at that time. The present case the Crown says the woman friend who would corroborate the evidence of the accused’s partner and himself was unexpectedly or unusually visiting the home on the very night having come from a distant city, as was said to be the case in 1992.
[7]How far alleged similarities shall appear will depend on the course of the cross-examination. The jury will be directed on the appropriate use of the information to avoid illegitimate prejudice arising merely from the fact of an alibi being presented on two separate occasions.
[8]The coincidence of similarity which the Crown asserts must bear directly on the credit of the accused and his alibi witnesses. The accused has not hesitated by learned counsel to attack in the most stringent terms the credit of many important Crown witnesses. He cannot expect to swipe everyone in sight and then sit back feeling immune from legitimate swipes at his own credit. This is such a situation. The Crown can cross examine in the area. The matter will have to be the subject of appropriate directions at the time of my summing up.
Following that ruling, the Crown solicitor first questioned the appellant about his exchanges with the probation officer (paras [14]-[15] above). Having received the appellant’s acknowledgement that he had been present at the earlier offending (and his implicit acknowledgement that the alibi had been false), the Crown solicitor turned to the detail of the alibi defence in the present case and related it to the details of the earlier defence. The appellant accepted that he and his witnesses had testified that he was at home with his ex-girlfriend and a friend of hers, that that friend had just got back from Auckland and that both had gang associations. He gave a partial explanation for the earlier alibi but ultimately agreed it was false in part. As well, the appellant acknowledged that the two women had visited him together in prison before they had been called to give evidence. The alibi witnesses in this case also visited the appellant in prison, during the time he was being cross-examined at the first trial. They were questioned, as was the appellant, about what, if anything, was said about the alibi defence on that occasion. The two women were also cross-examined about differences in the alibi evidence they gave at the two trials.
The Judge, in accordance with the indication given at the end of his ruling, returned to the matter in the course of his summing up:
[18]Let’s look at the issue here of a previous alibi, one which on Mr Wilson’s evidence was a false alibi presented to a court. What do you take from that in relation to the present alibi defence? Well, what you cannot do first of all is assume that because an alibi is untrue an accused must therefore be guilty – leap straight to it. People can set up alibis when they are innocent. People can establish alibis because they are anxious about being convicted, and innocent people can be as anxious as guilty people about being convicted and might therefore, if they were prepared to play fast and loose with a Court, set up a false alibi. That’s the first point, so let’s look at it specifically here in relation to this.
[19]The second is whether there is something about the false alibi and the present alibi which has such a similarity as to lead you to think the present one isn’t really right, and that will depend on whether you find there is a relevant similarity because if someone puts up a false alibi that’s got this characteristic and that one and that one and it’s false and they come before a Court and say “my alibi is this” and it’s got the same characteristics, you start thinking “well is that coincidence or is it design?” But the validity of that type of reasoning very much depends on the degree of similarity and the possibility or otherwise of it happening without design. Now let’s say, for example, a person says falsely “when that serious offence occurred I was home with my wife”. Well most alibis, true and false, will be of that character because serious offences are often committed at night and most people are home with their partner or wife at night, so it’s nothing extraordinary about it. If the same alibi is put up in another case it has the same normality about it – you can’t take anything from a coincidence from it.
[20]Now I will be getting on to what the Crown says here are relevant similarities in due course. What I am doing at this stage is really directing you on who carries the burden of excluding the alibi and what the legal consequences must be if you find it’s untrue. The Crown carries the burden. If you find it’s untrue you don’t leap to guilt because then all you really know is that there is something about his credit which might bear on the rest of his evidence and, second, that wherever he was he wasn’t at home. He could have been anywhere else.
Mr Mabey argued that there was nothing unexpected or unusual in the presence of the partner’s friend at the time of alleged offence. This was not a “fortuitous” presence. There was no relevant similarity of a significant character. He called attention to the evidence of the appellant’s partner and the friend, saying that it suggested that the friend’s presence was neither unexpected nor unusual. The friend had legitimate reasons to be in Tauranga and telephone records corroborated her presence at the relevant time. The presence was not unexpected or unusual. There was evidence that there were legitimate reasons for the friend to be in Tauranga and there was no dispute that she was there at the relevant time.
Mr Mabey also contended that the potential prejudice was overwhelming and beyond any probative value. He emphasised that, because the jury knew that the appellant had been convicted in 1992 and that he had pleaded an alibi on that occasion, they would undoubtedly have inferred that the previous alibi had been rejected. The jury in the current trial may well then have reasoned that because the previous alibi was rejected, whether it was similar or not, so should the alibi in the current trial. The prejudice, counsel contended, is obvious. There should also have been a voire dire before any ruling was made on whether this evidence was to be adduced.
For the Crown, Mr Hollister-Jones contended that the conclusion of the Judge, on day fourteen of the trial, was that the probative value of the alibi evidence outweighed any prejudice, primarily because
(a) by that time there was no additional disclosure of the previous offending which had been put in evidence by the accused himself in his evidence-in-chief, and
(b) the probative value flowing from the similarities between the alibis was sufficiently great to outweigh any remaining prejudice.
The findings on the probative value of the evidence were open to the trial Judge on the facts. The questioning could lead to answers which were probative in two respects, first, concerning probability and, second, by pointing to the jury the need for careful examination of the alibi evidence.
The degree of similarity between the two alibis, according to the Crown, was that they both involved (1) the appellant’s domestic partner, (2) accompanied by a female friend, (3) who had travelled from a distant city, and (4) both of whom had gang associations. The fact that the friend was a regular visitor to Tauranga, that she had a legitimate reason to be there and that her presence was corroborated by telephone records, as submitted by the accused, were all evidential matters going to weight and were properly put before the jury to form part of the overall assessment of the alibi evidence. Mr Hollister-Jones also referred us to the ruling of the English Court of Appeal in R v McLeod [1994] 1 WLR 1500, 1512-1513. He questioned the value of a voire dire which experienced trial counsel had not in any event requested.
The Court’s position
Against that background of the course of the trial, the rulings, the evidence admitted as a consequence and the submissions, we can state our position briefly.
So far as the self incrimination issue is concerned, the appellant was advised by the trial Judge of his privilege in clear terms on the first afternoon and refused to answer (para [13] above). On the next morning of the trial, the Judge again gave a warning, “recalling” it to the appellant’s attention who at first declined to answer but then, after the Judge had distinguished between the two aspects of the question about the discussion with the probation officer and given a direction about the first aspect, answered not just the question about what he had said, but also the question which the Judge had indicated he was not obliged to answer (without further objection) (para [14] above).
It is clear that the Judge need not give the warning on every possible occasion (or indeed at all, but he had decided to inform the appellant of his privilege in this case) and the warning had been repeated in precise terms just moments before the appellant made the statements in question. Mr Mabey criticises as artificial the distinction drawn by the Judge between whether the appellant made the statement to the probation officer and whether it was true or not. He sought support from a judgment of Lord Eldon LC given in 1812, Paxton v Douglas 19 Ves Jun 225, 227-228; 34 ER 502 : the privilege covered not just the direct question but anyone in a series of questions that has a tendency to incriminate. That statement was made in a judgment ruling that interrogatories, as framed, did not have to be answered. It also, no doubt, has to be assessed in its historical context when, for instance, criminal accused were unable to give evidence in their own defence. For a current statement see Cross on Evidence paras 10.10 and 10.16. Part of the wider contemporary context is also provided by Kirby P in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, 420-423 from which judgment the Eldon passage was drawn:
The test is sometimes expressed as to whether there is a ‘real and appreciable risk of criminal proceedings … being taken against’ the witness: see Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, 441. A remote or slight possibility of legal peril to a witness may not, in a particular case, be sufficient to invoke the privilege and to sustain a refusal to answer a question: see Reg v Boyes [(1861) 1 B & S 310; 120 ER 730].
…
It is for the presiding judicial officer to determine whether the objection taken is good and whether there are reasonable grounds for the belief on the part of the witness that he or she is, or may be, in peril of future criminal or like proceedings if the answer is given. Just as the court must protect the privilege, it must also make sure that the rule is not abused: but applied only where its invocation is justified: see Triplex Safety Glass Co Ltd v Lancecgaye Safety Glass (1934) Ltd [1939] 2 KB 395, 403. The proper procedure in a claim for privilege is to object to each question as it is asked: see Ex parte Reynolds, [(1882) 20 ChD 294]; Brebner v Perry [1961] SASR 177, 180. It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege.
Five matters lead us to the conclusion that there was no error leading to a miscarriage of justice on this ground:
1.the extreme remoteness (if it can be called that) of any possible legal jeopardy (Cross on Evidence para 10.6); we do not consider that the trial Judge would have erred had he ruled on this ground alone that the privilege against self incrimination did not arise;
2.the warnings given by the Judge and the presence of counsel able to protect the interests and rights of the appellant on each occasion the issue arose (distinguishing the situation of an unrepresented suspect questioned at the police station);
3.the relevance for the appellant’s credibility of his acknowledgement that he made inconsistent statements, one at trial and the other for the purpose of sentencing, about whether he was present at the earlier offending; whether the alibi was false was not relevant for that purpose; but his credibility on the alibi was directly relevant to his guilt; see s5(4)(b) of the Evidence Act 1908 discussed in R v Potter [1984] 2 NZLR 374 and in the cases to which it refers;
4.the lack of any basis for disagreeing with the Judge’s assessment, made in the other ruling but applicable in this context as well, that the probative value of the evidence about the alibi outweighed any illegitimate prejudice;
5.the prosecution’s matching of the wide ranging attack by the defence on the credibility of prosecution witnesses by mounting an attack on the alibi defence; again see s5(4)(b) of the Evidence Act.
Accordingly we reject this ground of appeal.
The ruling allowing cross-examination on the earlier alibi was based essentially on matching extraordinary elements in the two alibis. The ruling, affirmed in the summing up, was that it was not enough for the jury to be able to find normal coincidences. The similarities, said the Judge, had to be exceptional. (The Judge, we note, set the Crown a more difficult test than that apparently set by the McLeod court : see the questions in issue in that case; [1994] 1 WLR at 1503 F-H. We need not pursue that further.) We agree with the Judge that this case appears to go beyond normal, unexceptional coincidence. This was not just a case of a person at home at night with their partner. There were the extra elements acknowledged by the appellant in cross-examination. Further, the matter was put clearly to the jury in the summing up (para [21] above) in terms which Mr Mabey accepted were entirely proper. Given the information about those extra elements gained from the evidence at the first trial, we cannot see what purpose a voire dire on this issue would have served. It was in any event not sought.
Accordingly this ground of appeal also fails.
Result
The appeal against conviction is dismissed.
Solicitor:
Ronayne Hollister-Jones Lellman, Tauranga for the Crown
0
1
0