The Queen v Katrina Fenton
[2000] NZCA 197
•14 September 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA223/00 CA299/00 |
THE QUEEN
V
KATRINA FENTON
NATALIE FENTON
| Hearing: | 7 September 2000 |
| Coram: | Richardson P Thomas J Blanchard J Tipping J McGrath J |
| Appearances: | R Wade for the Appellant Katrina Fenton P J Kaye for the Appellant Natalie Fenton S P France and M J Thomas for the Crown |
| Judgment: | 14 September 2000 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Introduction
The appellants, Katrina and Natalie Fenton, are sisters. At the time of their offending they were aged 19 and 15. They were jointly tried with a third person called Daniella Bowman, aged 17, for the murder of Raymond Mullins. All three were found guilty. On this appeal against their convictions the appellants contend there was a miscarriage of justice in that their trials should have been severed from that of Ms Bowman. They had applied before trial for an order for severance but their application was dismissed. They appealed from this ruling but, due to the intervention of the long vacation, their appeal could not be heard before the commencement of the trial. This appeal is brought on the basis that the refusal of severance has resulted in a miscarriage of justice in each case.
The Crown contended that the deceased was killed as the result of a premeditated and concerted attack on him by the three young women. The reason was said to have been primarily the deceased's refusal to hand over money on an earlier occasion. No-one else was present at the time of the killing, and the Crown case relied substantially on admissions which each of the women had made to the police in the course of separate interviews, and other admissions which they had made to friends and relatives shortly after the events in question.
The deceased was killed in the living quarters of his factory premises situated at 49A Plunket Ave, Papatoetoe. The ground floor contained a workshop from which access could be gained to a mezzanine floor by a set of stairs. On the ground floor were various boats and trailers which were being repaired by the deceased prior to his death. The workshop contained all sorts of tools and other equipment. The mezzanine floor comprised a kitchen/dining room which led into a lounge/bedroom where the deceased was killed.
On examination the deceased's body was found to have suffered extensive injuries. On his head there were three general areas of injury. In the left frontal area there were a number of lacerations the largest of which, probably representing about six individual blows, had jagged edges and was associated with a fracture of the skull. In the right frontal area there were four lacerations with irregular edges. At the back there were three lacerations. All these injuries were consistent with forceful hammer blows. There was a stab wound on the left side of the neck which pierced more than half the thickness of the neck and was consistent with a blow struck with a knife. Around the stomach area there were 19 individual stab wounds. In the deceased's chest area there were what the pathologist described as four light lacerations or abrasions which formed what could be the letter 'W'. They were consistent with the use of the tip of a knife and did not appear to have been accidental in their arrangement. No particular significance was attached to the apparent letter 'W', but there was of course significance in the apparently deliberate arrangement of these injuries.
There were other injuries on the deceased which do not need to be individually described. Their significance lay in the fact that they appeared to have been caused when he was defending himself. The stomach wounds included one which penetrated the liver but they did not actually contribute to death. The pathologist expressed the opinion that the wounds to the stomach were inflicted when the deceased "had for practical purposes probably died or was just taking his last breaths". Death was in fact caused by a combination of the neck wound, which caused bleeding into the airways, and damage to the brain caused by the head injuries which probably rendered the deceased unconscious. The neck injury and the head injuries together fatally compromised his respiratory function.
The police statements
Katrina Fenton told the police she had been downstairs when she heard a violent argument between her sister, Natalie, and the deceased. The argument suggested that the deceased wanted to have sex with Natalie but she was unwilling. Katrina said she ran upstairs and saw the deceased on top of Natalie on a bed. He was holding her down. She believed the deceased was raping or attempting to rape her sister. She struck the deceased several blows to the head with a hammer which she had picked up. After doing so she realised her sister had a knife and had stabbed the deceased several times with it. Katrina denied she had any intention to kill the deceased. She did not give evidence and did not put in issue the veracity of what she had said to the police. Her defence at trial was that the homicide was justifiable as being in the defence of herself and her sister. Alternatively she claimed she had no murderous intent and was therefore guilty of manslaughter only. She made the same alternative assertion of manslaughter on the basis of provocation.
Natalie Fenton did not give evidence either, but in a separate interview told the police she had been upstairs with the deceased watching television. Her sister had been downstairs. The deceased had asked her for sex. She declined and the deceased had grabbed her breasts and started to rub her leg. She then struck him with an ashtray and yelled out for her sister, who came into the room with a hammer while she, Natalie, was being held down by the deceased. She said that Katrina had hit the deceased with the hammer and she, Natalie, had stabbed him several times with a knife. She also said that Ms Bowman had hit him with a saucepan. The three of them had then carried his dead body downstairs and put it in the boot of a car with the weapons they had used. Her defence was essentially the same as that of Katrina.
Daniella Bowman, who was also interviewed separately and did not give evidence, told the police that the three of them had planned to kill the deceased while he was watching television. She said that both Natalie and Katrina Fenton had struck the deceased with a hammer. She had struck him with a saucepan and had then obtained two knives which she handed to Natalie Fenton who had used them to stab the deceased. Clearly what Ms Bowman said was at odds with what both Katrina and Natalie Fenton had told the police. If Ms Bowman's statement was accepted as true, it was apt totally to undermine their defences. To this point the evidentiary position was comparatively straightforward. Each of the three woman made their statements in the absence of the others. Thus each statement was admissible only against its maker and formed no part of the evidence against the others, being in their respect inadmissible hearsay.
Other statements
It is necessary to refer next to various admissions made by the accused to people other than the police. First, there was evidence from one Matthew Walters. The three women were his cousins. Katrina Fenton admitted to this witness that she had killed the deceased. She told him that she, Daniella and the deceased had been watching television when Natalie came up from behind with a hammer, struck at the deceased but missed him. Katrina's conversation with Matthew Walters took place in the absence of the other two women and thus his evidence was admissible only against Katrina.
Mr Walters also gave evidence of a conversation he had had with Natalie Fenton in the presence of the other two women. During the course of this conversation Natalie indicated that the deceased had been killed because of his sexual involvement with children. As Natalie's statement was made in the presence of the others, it was admissible against them all. A further piece of evidence given by Matthew related to a conversation which he had had with Katrina in the absence of the others. Matthew said that in his presence Katrina had told her mother that they had killed the deceased; that while they were watching television Natalie had come up from behind with a hammer, initially missed the deceased and then panicked and she, Katrina, had helped her out. Clearly this evidence was admissible against Katrina only.
Another cousin, John Walters gave evidence that Katrina had said to him that she had just finished killing someone whose name he did not hear. Katrina indicated that Natalie and Daniella had been involved, but this evidence was admissible only against her.
A witness called Lucina Walters indicated that Natalie had told her, without the others being present, that they had just killed the deceased. Another witness called Martha Walters described a conversation which she had had with Natalie in the absence of the others, when Natalie had shown the witness a copy of the New Zealand Herald. She told the witness that the three of them had killed him. This evidence was of course admissible only against Natalie. Natalie had a similar conversation with a 14 year old witness called Caroline Puke.
A witness called Howard Hanson spoke of a conversation with Natalie in the presence of Daniella but not Katrina. The two had admitted bashing and stabbing a man, although he could not remember the exact words used. He recalled a comment by Natalie that the deceased had tried to rape her. Natalie and Katrina's older sister, Charlene Fenton, gave evidence of a long conversation which she had had with Natalie in the presence of Daniella but in the absence of Katrina. She indicated that Natalie had admitted to her that the three girls had killed the deceased while he was watching television, using a hammer and knives and because he deserved it. Natalie indicated that Katrina had used the hammer and that she, Natalie, had used the knife. This evidence was not of course admissible against Katrina.
Summing-up
In his summing up the trial Judge told the jury:
…. an accused's statement can be evidence only for or against the person who made it. The statement is not evidence for or against any other co-accused mentioned in it. It must be disregarded when considering the evidence against another or others and the reason for this is obvious when you think about it. The accused were all interviewed separately. There was no opportunity for one accused to challenge or contradict what the other might be saying about her. So here, when considering the case against Natalie Fenton, you must disregard Katrina Fenton's and Daniella Bowman's statements. When considering the case against Katrina Fenton, you must disregard Natalie Fenton's and Daniella Bowman's statements. And when considering the case against Daniella Bowman, you must disregard the Fenton sisters' statements. And the same principle applies to other out of Court statements that may have been made by an accused in the absence of a co-accused.
There are numerous examples of this in the evidence. Let me give you one. Charlene Fenton gave evidence of what Natalie Fenton told her and Daniella Bowman told her when they visited her in Napier. What Natalie Fenton said is evidence for or against her and against Daniella Bowman because Daniella Bowman was present throughout and had the opportunity to challenge or contradict what Natalie was saying about her. Likewise, if you accept Charlene Fenton's evidence, what Daniella Bowman said that evening can be used as evidence for or against her and for or against Natalie Fenton because Natalie Fenton was present throughout and had the opportunity to challenge or contradict what Daniella Bowman was saying about her. But nothing in Charlene Fenton's evidence is admissible against Katrina Fenton because Katrina Fenton was not there. Do not be tempted to break this important direction.
It should be noted that the Judge also reminded the jury of the admissibility position when discussing the evidence relevant to the separate cases against each of the three women. The summing up was exemplary in this and indeed all other respects.
Ruling refusing severance
In the pre-trial ruling refusing severance, the Judge set out the background and the competing contentions. He made reference to various authorities including R v Gillies and Jorgensen [1964] NZLR 709 (CA), R v Brown (1987) 3 CRNZ 132 (CA), R v Dacombe and Jones (CA130/99 and CA133/99, 8 July 1999), and the decision of F B Adams J in R v Webb and Thompson [1953] NZLR 595. His conclusions were expressed in this way:
There is in this case, as there was in R v Brown, supra, a conflict between two principles. The first is the principle stated in Gillies and Jorgensen namely, that it must be rare indeed in a case such as this for a separate trial to be granted in the interests of justice. The interests of justice must apply equally to the accused and to the Crown. Secondly, there is the issue of whether the persuasive value of the admissible evidence is out of proportion to the probative value of the admissible evidence. If so, severance may, in my view, be granted notwithstanding the prima facie rule. It is a question of whether the direction which the Judge must give will be so unreal and contrived that a Judge might have difficulty in giving it and a jury difficulty in understanding it, or acting upon it.
The Crown's case is that there was, in effect, a joint enterprise to kill the deceased because he was not prepared to give them money as requested. It is said that severance will bring an air of artificiality to the proceedings and that any potential prejudice to K and N arising from B's statement can be adequately dealt with by a strong judicial warning regarding the proper use of the statement.
The interests of justice are evenly divided in this case. The interests of both the Crown and B are such that their counsel oppose severance. The interests of K and N are such that they seek severance. Having considered the various admissions [? submissions], it is my view that the difficulty in a Judge making an appropriate direction in this case is not sufficient to outweigh the prima facie rule that there should be severance [sic: the Judge must have meant that there should not be severance]. The trial Judge will be required to give firm directions on admissibility matters. That is not uncommon in cases such as this. The common purpose allegations made by the Crown suggest to me that the orthodox position in such cases should prevail and there should not be a severance. In the exercise of my discretion, the application is declined.
The submissions
For Katrina Fenton, Mr Wade submitted that the principal evidence against her was that of Matthew Walters. He suggested several reasons why his evidence may not have been reliable. Counsel accepted that ordinarily those involved in an allegedly joint enterprise should be tried jointly, unless there is good reason to order severance. Mr Wade's essential argument was that in this case there was good reason to do so, primarily because of the overwhelmingly prejudicial effect Daniella Bowman's statement to the police had on his client's defence. Inherent in this submission was the proposition that, in spite of the Judge's directions, there was too great a risk that the jury might consciously or unconsciously have been influenced by evidence inadmissible against Katrina.
Mr Kaye for Natalie Fenton properly acknowledged that by dint of the statements she had made both to the police and others, the case against her was a strong one. He outlined the defence which had been advanced for Natalie; essentially self defence, no murderous intent, and provocation, and submitted that any chance his client may have had of one or more of those defences succeeding had been eradicated by the presence of Daniella Bowman's statement before the jury. Again it was implicit in counsel's argument that the jury might have been unable to implement the Judge's careful directions as to what evidence was admissible and what was inadmissible against each of the three accused.
Mr France argued that as there had been a model summing-up and no suggestion of counsel's submissions having relied on inadmissible evidence, there was no basis for concern about the verdicts. He submitted that the pleas of self defence made by each appellant were untenable, particularly in the light of the nature and number of the wounds inflicted on the deceased. While accepting that provocation was properly left to the jury, Mr France suggested that this defence was far from strong and in any event depended on which version of events proffered by the appellants the jury might have accepted. Essentially counsel argued that the weight of the admissible evidence against each sister was substantial, in Natalie's case almost overwhelming; that there was significant consistency between what the sisters had at times said and Ms Bowman's statement, and that such statement could not be regarded as itself introducing a dimension which required the trial of the sisters to be separated from that of Ms Bowman.
All counsel made various submissions on the legal and policy issues involved. We have taken them into account in coming to our decision, and need not refer to them individually.
Legal principles
We will mention the leading authorities in New Zealand, as noted by the High Court, but see no need to discuss the Australian, Canadian and English cases which were drawn to our attention. At one level they turned on their individual facts and, at another, they demonstrate the different emphases it is possible to give to different aspects of what is essentially the same approach; namely whether the interests of justice in the individual case outweigh the prima facie desirability of trying allegedly joint offenders jointly.
In R v Gillies and Jorgensen [1964] NZLR 709 (CA) Turner J, for this Court, said at 714:
This was a case of joint adventure and near-conspiracy. As Devlin J. observed in R. v. Miller [1952] 2 All. E.R. 667, 670 the principle in this sort of case is that justice ordinarily requires that the whole matter be tried as one case, and that it will need very exceptional circumstances before it is split up into two separate trials. Those cases must be rare indeed, in which fellow-conspirators or joint-adventurers can properly, in the interests of justice, be granted a separate trial.
It can fairly be said that the present was a case where the allegation was one of joint adventure and, indeed, near-conspiracy. The approach of the Court, as an earlier passage in the judgment had forecast, placed considerable reliance on the proposition that juries will be able to apply the directions of the trial Judge. Recent research into the workings of the jury system has done nothing to undermine that proposition. Indeed the research has tended to fortify it by reference to empirical data: see the Law Commission's Preliminary Paper 37, Vol 2 (November 1999), entitled Juries in Criminal Trials, representing a summary of the research findings of Young, Cameron and Tinsley; especially at paras 7.9-7.11. There must always remain a risk of unconscious or inadvertent influence from inadmissible material, however clear and cogent the Judge's directions. But in the absence of anything to suggest that such risk became a real one in the present case, it cannot be enough of itself to demonstrate that a miscarriage of justice has resulted from the absence of severance.
This Court had occasion to revisit the subject in R v Brown (1987) 3 CRNZ 132 (CA). This was not a case of a truly joint enterprise. It was, however, a case in which, contrary to the view of the High Court, this Court held there was:
…. very real danger that the jury will, in the very unusual circumstances of this case and notwithstanding any warning by the Judge, use it [the inadmissible evidence], along with the legitimate circumstantial evidence, to draw an inference of guilt.
Finally, there is the recent decision in R v Dacombe and Jones (CA130/99 and CA133/99, 8 July 1999 in which the Court put the matter in this way:
He [the Judge in the High Court] acknowledged the principle, confirmed in R v Webb & Thompson [1953] NZLR 595, and R v Brown (1987) 3 CRNZ 132 (CA), that where the persuasive value of inadmissible evidence is out of proportion to the probative value of admissible evidence, severance may avoid injustice to one or more co-accused.
What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime. The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally. This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury. That is the usual problem in a joint trial from the accused's perspective. When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.
There may, however, be occasions when the weight of the inadmissible evidence, against that of the admissible, makes it unfair to an accused, notwithstanding the trial Judge's directions, to expect the jury to act only on the evidence which is admissible. Similarly, there may be cases in which the difficulties in isolating the admissible from the inadmissible make it unfair to expect the jury to undertake that exercise. Those are the usual circumstances in which severance may be justified. Ultimately the question is whether the applicant for severance can demonstrate some feature of the case which clearly outweighs the ordinary approach and the basis upon which it rests, and which therefore mandates severance in the overall interests of justice. After verdict the same general considerations apply but, in order to succeed, the appellant must show that the joint trial has resulted in a miscarriage of justice.
This case
Against that legal background we will address first the position of Natalie Fenton. The admissions she herself made, particularly to her older sister, Charlene, constituted a very strong case against her. Admissible statements by others also implicated her in a substantial way. Her claim of self defence was hardly tenable. Her defence based on provocation was not much stronger. Only a slender basis for such a defence emerged from what she said out of Court. She did not give evidence herself. In several respects her out of Court statements were fundamentally inconsistent with the proposition that she had been provoked and had thereby lost her self control. In these circumstances the joint trial, and the consequential presence of Ms Bowman's statement before the jury, did not raise any real risk of a miscarriage of justice. Nor was there such material difficulty in isolating what was admissible from what was inadmissible against Natalie Fenton as to lead us to the conclusion that there may have been a miscarriage of justice on that account.
As regards Katrina Fenton, the Crown's case was not quite as strong. It was nevertheless by no means weak. Katrina, who also elected not to give evidence, initially denied having seen the deceased at all over the past month. She later accepted she was there, but left after a short time and knew nothing of how he came by his death. When confronted with other evidence she accepted her involvement in his killing on the basis indicated to the police; but when speaking to Matthew Walters, she gave another version which came much closer to that advanced by Ms Bowman. That version of the events was to the effect that the three of them had been watching television, Natalie had come from behind with a hammer and had missed the deceased. She, Katrina, had then panicked. The deceased put up a fight and she, Katrina, had helped out in the fight by kicking him, grabbing two knives, and stabbing him. In the course of this conversation she acknowledged that she had killed the deceased.
Furthermore, Matthew indicated that he had heard Katrina giving a similar version of events to her mother. On this version of events, which was itself essentially consistent with Ms Bowman's statement, self defence and provocation were untenable defences and it was difficult for Katrina to maintain she had no murderous intent. What is more, the proposition that the deceased was raping or attempting to rape Natalie with her sister immediately below, and Ms Bowman in the adjoining room, was inherently most implausible. The violence used in the killing was extreme, and the jury's verdict was entirely consistent with the admissible evidence against Katrina. There is no objective basis to suggest a real risk of the jury having decided the case against her on the basis of improper use of Ms Bowman's statement or any other inadmissible evidence.
The weight of the evidence inadmissible against Katrina, in comparison with the evidence which was admissible against her, was not such as to lead to any real risk of a miscarriage of justice. Nor was there any particular difficulty in isolating, in Katrina's case, the admissible from the inadmissible. In this latter respect the position was if anything more straightforward in Katrina's case than in that of Natalie. No other basis for severance and hence a miscarriage of justice was asserted in either case.
Hearsay
As noted earlier, it is the hearsay rule which makes an out of Court statement by accused A inadmissible against accused B unless made in B's presence. The rule itself was not the subject of any submissions in the present case. It is, however, in a state of evolution at common law and proposals have been made by the Law Commission for major statutory reform. In its report on Evidence, Number 55 Volume I published in August 1999, the Commission (see paragraph 60) has proposed that in both civil and criminal proceedings hearsay evidence should be admitted if it is sufficiently reliable, and the maker of the statement is unavailable as a witness. The proposed Evidence Code deals discretely with the concept of unavailability. The Courts have been moving in much the same direction, see R v Baker [1989] 1 NZLR 738 (CA) and R v Bain [1996] 1 NZLR 129 (CA).
In Bain the Court examined two issues - relevance and reliability - and suggested that they were so inter-related as to amount essentially to one issue. The proposed Evidence Code proceeds on the basis that all logically relevant evidence is admissible unless there is a sufficient policy reason to exclude it (see paragraph 23 of the Report mentioned above). Subject therefore to relevance, the basic criterion for the admissibility of hearsay under the proposed Code is reliability. It is desirable that hearsay reform should be part of the wider legislative reform of the law of evidence proposed by the Law Commission. If, however, the Commission's proposals, with or without such amendments as Parliament considers appropriate, are not promptly enacted, it may well be necessary for the Courts to consider continuing the modernisation process, albeit in a piece-meal fashion.
As part of that process it should be noted that the findings of the research referred to earlier demonstrate that juries are significantly more discerning than they are often given credit for. Understandable concerns that hitherto inadmissible hearsay will tend to subvert the criminal trial process should be considered in that light. If juries can appreciate and apply the distinction between admissible and inadmissible evidence, when considering cases against different accused, there is no reason to think they will be unable to weigh hearsay evidence appropriately, according to its inherent and circumstantial reliability. There is also the safeguard that if the hearsay does not measure up to a threshold level of reliability, it will not go before the jury at all.
Nothing we have said in this section of the judgment has influenced our thinking on the disposition of these appeals. It is, however, worth noting that the circumstances relating to Ms Bowman's statement to the police (compare s16 of the proposed Evidence Code) seem to us to provide reasonable assurance that her statement was reliable (compare s19 of the proposed Code). What is more, the Code approaches the question of the admissibility of the out of Court statement of one accused against another, by specific reference to that subject (see s26). Under the Code such a statement is, prima facie, admissible against both its maker and all others jointly tried, unless excluded by s27 (reliability), s28 (oppression) or s29 (evidence improperly obtained). If an out of Court statement of this kind is challenged for lack of reliability, s27 requires the Crown to prove beyond reasonable doubt that the circumstances in which the statement was made were not likely to have adversely affected its reliability. That is a higher threshold than that specified for hearsay generally. It preserves the conventional bases for objecting to out of Court statements, but if the statement of accused A is not challenged or declared inadmissible under the Code, it is admissible against accused B. This means that had the proposed Code been in force at the time of the trial of the appellants, Ms Bowman's statement to the police would have been admissible against them both.
In the light of recent developments the same position may well have been reached at common law. Ms Bowman's statement was clearly relevant and arguably crossed the threshold of sufficient apparent reliability to justify its being admitted against the two sisters. The jury could appropriately have been left to assess the weight to be given to the statement. They would have been able to balance the force, in this instance, of the recognised dangers of hearsay evidence against the statement's consistency with the silent evidence of the injuries and the admissions each sister had made. But as no decision on this point is necessary or desirable in the absence of full argument, it must be left for another day.
Conclusion
For the reasons earlier given, both appeals are dismissed.
Solicitors
Crown Law Office, Wellington