Walters v Manawatu SPCA
[2018] NZHC 909
•2 May 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE
CRI-2018-454-3
[2018] NZHC 909
BETWEEN PETER MICHAEL WALTERS
Appellant
AND
MANAWATU SPCA
Respondent
Hearing: 10 April 2018 Appearances:
J Langford for Appellant
K van der Plas for Respondent
Judgment:
2 May 2018
JUDGMENT OF GRICE J
Introduction
[1] Mr Walters’ bay and white pony, Cashew, was euthanised due to a severe case of laminitis in April 2016. The SPCA charged Mr Walters with ill-treating Cashew by failing to provide appropriate and timely health interventions, causing the animal to suffer unreasonable and unnecessary pain or distress.1
[2] Mr Walters had been previously convicted in 2012 of failing to ensure the physical health and behavioural needs of Cashew were met.2 The pony had then developed laminitis and was experiencing difficulty standing and walking.
[3] The convictions were under different sections of the Animal Welfare Act 1999 (AWA).
1 Animal Welfare Act 1999, s 29(a).
2 Section 12(a). That conviction related to a period between June and September 2010.
WALTERS v MANAWATU SPCA [2018] NZHC 909 [2 May 2018]
[4] Mr Walters appeals from the District Court Judge’s pre-trial decision which ruled that the 2012 conviction was admissible as evidence and able to be adduced at the Judge alone trial on the present charge.3
[5]For the reasons outlined below, the appeal is dismissed.
Background
[6]The background to this matter is set out by the District Court Judge as follows:4
[1] On 26 April 2016, an SPCA inspector and a veterinarian went to the defendant’s property in Westbrook. When they arrived, Mr Walters and a barefoot trimmer were in the very early process of trimming the hooves of one of Mr Walters’ horses, a bay and white pony called Cashew.
[2] After a physical examination of Cashew, the veterinarian concluded that the horse was suffering from chronic active laminitis. This is a painful hoof condition in which the attachment between the hoof wall and the pedal bone inside the foot become inflamed and weakened. One of the pre- disposing factors of laminitis is poor hoof care, specifically overgrowth. Cashew was euthanised the same day on the recommendation of the veterinarian. Her view was that Cashew was suffering from the most severe and chronic case of laminitis she had ever seen.
[3] The barefoot trimmer/farrier who was the primary hoof care provider for Cashew had not seen him for almost four and a half months.
The relevant provisions
[7]The charging documents say that Mr Walters:
Did ill-treat an animal, namely a bay and white pony known as Cashew, by failing to provide appropriate and timely health interventions, causing the animal to suffer unreasonable and unnecessary pain or distress.5
[8]Section 2 of the AWA defines “Ill-treat” as:
ill-treat, in relation to an animal, means causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary.
3 Manawatu SPCA v Walters [2017] NZDC 24472.
4 At [1] – [3] (footnotes omitted).
5 An offence under s 29(1)(a) of the AWA.
[9] A breach of s 29(a) of the AWA is a strict liability offence. However, it is a defence under s 30(2)(a) “[t]hat, in relation to the animal to which the prosecution relates, the defendant took all reasonable steps not to commit a breach of section 29(a)”.
District Court decision
[10] The Judge in the District Court dealt with the SPCA’s argument that evidence of Mr Walters’ 2012 conviction was unorthodox propensity evidence under s 40 of the Evidence Act 2006.
[11] The SPCA said that this conviction illustrated the context in which the dispute was to be determined. In other words, Mr Walters knowledge and experience of Cashew having suffered laminitis was relevant to the determination of the issue in dispute for this trial.
[12] Mr Walters countered that under s 30(2)(a) of the AWA, whether Mr Walters had taken “all reasonable steps not to commit a breach of section 29(a)” should be assessed objectively because s 29(a) is a strict liability section. His subjective appreciation of the risk of Cashew developing laminitis was not relevant.
[13] The Judge held that Mr Walters’ knowledge and conviction relating to Cashew suffering from laminitis must be relevant to the determination of the issue in dispute at his trial. She considered it relevant for the purposes of adducing whether the steps Mr Walters took were objectively reasonable. As the Judge put it:6
[19] … What may be considered objectively reasonable steps for one person, may be different for the defendant because of his knowledge of Cashew’s previous condition of laminitis and the prosecution and convictions which resulted.
[14] The Judge moved on to consider the case of Jonson v SPCA.7 She quoted Keane J’s statement from that case. He said:8
6 Manawatu SPCA v Walters, above n 3, at [19].
7 Jonson v SPCA HC Whangarei CRI 2005-488-42, 5 December 2005.
8 At [40] (footnotes omitted).
[40] Strict liability is not to be understood literally. It is blameworthiness in particular circumstances… In issue is … not the exceptional case but what can be anticipated as a ‘substantial probability’. Steps cannot be taken until the need is known… Acts or omissions resting on a mistaken belief can still be excusable if both belief and response are reasonable… An omission to act can be excusable if no steps are practicable…
[15]She concluded, based on this, that:9
[23] …the defendant’s blameworthiness is to be assessed in the circumstances which include his knowledge Cashew had developed laminitis in the past and that this led to the defendant pleading guilty to, and being convicted of, failing to meet Cashew’s physical and health needs
[16] The Judge then moved on to consider whether the probative value of the evidence outweighed the risk that the evidence would have an unfairly prejudicial effect on the defendant pursuant to s 43(1) of the Evidence Act 2006. She accepted that the evidence was probative because Mr Walters had failed to attend the same pony’s hooves in two separate periods six years apart.10 Further, these two events were similar because Cashew had severely overgrown hooves and had difficulty standing or walking. Both times a vet concluded Cashew had chronic laminitis.11
[17] The Judge held the defendant had not established how evidence of the previous conviction would be “unfairly prejudicial, particularly in the context of a Judge alone trial…”.12 The Judge cited the Supreme Court decision in Mahomed v R.13 She noted that the minority in this case stated that the risk of unfair prejudice arising from evidence of other misconduct towards a victim is likely to be less because the misconduct is not extraneous to the alleged offending.14
[18] It was not just the existence of the laminitis that was relevant in her opinion, but that it had been sufficiently serious to prosecute Mr Walters. She ruled the evidence admissible.
9 Manawatu SPCA v Walters, above n 3, at [23].
10 Evidence Act 2006, s 43(3)(a) – (c).
11 Section 43(3)(c).
12 Manawatu SPCA v Walters, above n 3, at [27].
13 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145, at [56] – [58].
14 At [57].
Grounds of appeal
[19]Mr Walters appeals the District Court decision on the grounds that:
(a)The evidence does not fit within the definition of propensity evidence.
(b)The Judge was wrong to determine that Mr Walters knowledge of laminitis (as evidenced by a previous prosecution and conviction) was relevant to the objective assessment of whether Mr Walters took all reasonable steps not to commit a breach of s 29(a) of the AWA.
(c)There is, in any event, an important distinction between Mr Walter’s knowledge as to Cashew’s previous condition and the fact of the previous prosecution and conviction.
(d)The defendant’s knowledge or state of mind is irrelevant (and inadmissible) in a charge involving strict liability.
(e)The prejudicial effect of the evidence of the previous conviction will, if allowed to stand, greatly outweigh any alleged probative value of evidence as to the previous conviction which must be small.
[20] Mr Langford for Mr Walters sought to abandon ground (d) above (strict liability) at the outset of his submissions.
[21] The SPCA submits that the 2012 conviction and the surrounding facts provide relevant propensity evidence and the probative value in relation to the issue in dispute outweighs any potentially unfair prejudicial effect. It says it does not seek to use the conviction as orthodox propensity evidence but rather as part of the context in which the issue in dispute is to be determined.
Leave to appeal
[22] Leave to bring this appeal is required under s 216 of the Criminal Procedure Act 2011. Mr Langford sought this leave by an oral application at the outset of the appeal hearing.
[23] The SPCA took a neutral stance on whether leave should be granted. Mr van der Plas for the SPCA accepted that the issue under appeal was at the heart of Mr Walters’ defence.
[24] I am of the view that the appeal raises a novel issue and Mr Walters’ argument is not without merit. The appeal concerns an issue that is appropriately dealt with before trial as the contested evidence in question would undoubtedly be an important factor in the Judge’s deliberation.
[25]I conclude that leave to appeal should be granted.
Do the propensity rules apply?
[26] Mr Langford argues that the proposed evidence of Cashew’s previous laminitis condition and Mr Walters’ 2012 conviction does not fit within the definition of propensity evidence. Propensity evidence is defined in s 40 of the Evidence Act 2006, which provides:
40 Propensity rule
(1)In this section and sections 41 to 43, propensity evidence—
(a)means 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;
…
[27] In support of his proposition, Mr Langford referred to the District Court decision in R v Luo.15 In this case, the prosecution sought to admit evidence of the defendant’s previous convictions for a tax related strict liability offence and matters
15 R v Luo [2017] NZDC 3477.
surrounding those convictions. The District Court Judge in his short decision dismissed the application as, in essence, he considered:
(a)It did not meet the definition of propensity evidence because the submission that an inference of intent could be drawn from a conviction that requires no intent pushed the definition of propensity evidence too far; and
(b)the prejudicial effect of the evidence greatly outweighed any probative value that the evidence had.
[28] Mr Langford also referred to the case of Jonson v SPCA, where the fact that stock had previously been put in jeopardy in flood conditions was taken into account by the Judge when he concluded that all reasonable steps had not been taken to ensure a breach the relevant animal welfare provisions did not occur.16 In this case the Jonson’s cattle were stranded in flooded paddocks and put in grave danger. There had been flood warnings for the area. Mr and Mrs Jonson had checked and thought the animals were safe but were then diverted by other pressing engagements. The Jonsons were convicted under s 12(a) of the AWA of failing to discharge their obligations under s 10. Relevant for present purposes, was that the Jonsons attempted to use a defence under s 13(1) of the AWA that required them to establish that they had taken “all reasonable steps” to comply with s 10. The Judge said:17
[46] This was not an abstract issue. The Jonsons, as the Judge held, knew the area intimately. They had farmed the main block for 15 years and the run-off for seven to nine years. They knew that the run-off was prone to flooding a few times each year. They knew the size of the catchment concentrating water at the Rangiahua Bridge, close to the run-off. They knew of the confluence of heavy rain and of the tides.
[29] Mr Langford noted there was no attempt to introduce propensity evidence in that case. The decision was based on a factual finding that the Jonsons’ did not take sufficient steps to establish the defence.
16 Jonson v SPCA, above n 6.
17 Jonson v SPCA, above n 6, at [46].
[30] I refer to the Supreme Court minority in Mahomed v R, where William Young J noted that:18
[60] … The definition [of propensity evidence in s 40] is not itself an admissibility rule. And associated with this, the definition works on the basis that evidence is “propensity evidence” if it has the tendency which is specified. It is not confined to evidence which is to be led for any particular purpose.
[61] The definition of “propensity evidence” is exhaustive and there is no exclusion in relation to evidence of conduct between the defendant and victim. This means that evidence which tends to show a propensity by the defendant to act towards or think about the victim in a particular way is necessarily within the definition of “propensity evidence” irrespective of why the Crown wishes to lead the evidence. Further, given the direction in s 40(3), evidence which is within the statutory definition can only be adduced if admissible under s 43. So there is no scope for addressing the admissibility of such evidence on the basis of both the propensity rules and direct relevance.
[31] In light of this reasoning, I conclude the evidence of Mr Walters 2012 conviction falls within definition of propensity evidence. Although the evidence is not being advanced for traditional propensity purposes, the evidence is capable of supporting propensity reasoning. The evidence shows a tendency of Mr Walters to neglect to trim the pony’s hooves to the extent the pony develops laminitis and experiences unreasonable and unnecessary pain and distress. I consider the specific application of admissibility of the evidence under s 43 below.
Is the evidence relevant to the assessment of reasonableness?
[32]Mr Langford says:
(a)The test as to whether all reasonable steps were taken or whether any viable step were available must be decided objectively. Mr Walters’ own perception cannot govern the situation.19
(b)The correct test when assessing whether all reasonable steps were taken by Mr Walters is to assess what the reasonable person would have done in the circumstances.
18 Mahomed v R, above n 12.
19 Department of Health v Mutlichem Laboratories Ltd [1987] 1 NZLR 334.
(c)It is not proper to engraft onto the “reasonable person” the personal characteristics of Mr Walters unless there were personal characteristics which made Mr Walters incapable of appreciating the nature and quality of the consequences of his acts or omissions.20 Therefore Mr Walters’ knowledge of laminitis and his previous prosecution are his personal characteristics (or experiences) and are not relevant to the issue at trial.
[33] Mr Langford for Mr Walters said that he accepted liability on the basis of strict liability and therefore the focus should be on the available defence under s 30(2)(a) of the AWA in considering whether the propensity evidence was inadmissible. This was because the assessment of what is ‘reasonable steps’ for the purpose of his defence must be assessed objectively therefore the subjective evidence of Mr Walters previous conviction and his knowledge of Cashew’s previous laminitis should not be admissible.
[34] In his oral submissions Mr Langford gave some examples of how taking into account the disputed evidence might lead to difficulties if the substantive knowledge of Mr Walters was permitted to be taken into account in determining what were “reasonable steps”. For instance, if the ‘subjective test’ were to apply in the case of someone who had never heard of or seen laminitis, they might have an advantage over Mr Walters in establishing the defence.
[35] Mr Langford also referred to the comments in Department of Health v Multichem Laboratories which indicated that whether all reasonable steps were taken and whether any reasonable step was available must be decided objectively.21 This decision occurred in the context of whether the defendant’s own perception of reasonableness governed the situation.22 This case turned on the interpretation of a statutory provision. The issue was whether the fact a defendant knew that a previous inquiry had already been made by someone else might enable a court to hold it was unreasonable to require him to make that inquiry again, in light of the defendants
20 R v Hamer [2005] 2 NZLR 81 (CA) at [37].
21 Department of Health v Multichem Laboratories Ltd, above n 18.
22 At [334].
knowledge of the earlier inquiry.23 The point in that case was that “… the defendant’s own perception of reasonableness cannot govern the situation… .”24
[36] Mr Langford argues that it is not appropriate for a mixed subjective-objective approach to be taken. That is, that personal characteristics or experiences of Mr Walters should not be grafted onto the reasonable person. Mr van der Plas for the SPCA submits that it is open to the Court to take such approach and that the wording of s 30(2)(a) indicates that it should be taken.
[37] The objective test for reasonableness involves consideration of what a reasonable person in the shoes of the defendant would have done.25 Mr Walters’ particular knowledge about Cashew’s previous laminitis, how that arose and his conviction for it, form part of the relevant circumstances when assessing what a reasonable person in Mr Walters’ shoes would do. The 2012 conviction is evidence that is relevant to the determination of reasonableness under what was described in Department of Health v Multichem Laboratories Ltd as an objective approach.26 It is not a case involving Mr Walters’ own perceptions.
[38] In Jonson v SPCA, Keane J noted that strict liability is blameworthiness in particular circumstances.27 He upheld the District Court’s finding that Mr and Mrs Jonson had not taken all reasonable steps because their knowledge of the property, farming and the developing weather conditions meant that further steps should have been taken.
[39] Jonson illustrates that Mr Walters’ knowledge influences what steps he should reasonably have taken. The propensity evidence shows that Mr Walters knew that if Cashew’s hooves were not cared for, he could develop laminitis, causing him serious pain. Such knowledge is highly relevant to a consideration of what steps the reasonable person, armed with such knowledge, would have taken.
23 At [338].
24 Department of Health v Multichem Laboratories Ltd, above n 19.
25 R v Ross [2008] NZCA 222 at [31]; R v Can [2007] NZCA 291 at [43] – [51].
26 Department of Health v Multichem Laboratories Ltd, above n 19.
27 Jonson v SPCA, above n 6, at [40].
[40] The evidence of Mr Walters 2012 conviction is relevant to the assessment of reasonableness under s 30(2)(a) of the AWA.
Should evidence only pertaining to Cashew’s previous laminitis be admitted instead?
[41] Mr Langford contends that Mr Walters knowledge of Cashew’s previous laminitis is separate from his conviction. He submits the former alone could be admitted, which would be preferable as the conviction is highly prejudicial. A reasonable person would make the same decision regardless of whether he had a previous conviction or not.
[42] Mr van der Plas submits that the fact that Mr Walters has a previous prosecution and conviction for identical offending against Cashew is highly relevant. He submits it is probative as it shows Mr Walters’ knowledge that Cashew had developed laminitis in the past as a result of his failure to obtain adequate and timely hoof care. It also shows he knew this failure was sufficiently serious as to result in a prosecution and his conviction.
[43] The relevance of Mr Walters’ conviction is that he knew that a failure to care for Cashew, as he did on that occasion, is conduct that is not only detrimental to Cashew, but also criminal conduct. This aspect provides further evidence as to the context that Mr Walters made his decision as to what reasonable steps should be taken. It is a factor that a reasonable person in his shoes would take into account. These aspects of the previous offending would not be conveyed by merely admitting evidence that Mr Walters had previously failed to care for Cashew’s hooves, resulting in laminitis.
[44] The only further issue is whether that aspect of the evidence is unfairly prejudicial.
Does the probative value of the evidence outweigh any unfairly prejudicial effect?
Sections 7 and 8 of the Evidence Act 2006:
[45]Section 7 of the Evidence Act provides:
7Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a)inadmissible under this Act or any other Act; or
(b)excluded under this Act or any other Act.
(2)Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
[46] No real issue is taken on this head. The evidence is relevant. It relates to the same condition suffered by Cashew in 2010 that the pony suffered in 2016 and which gave rise to the present charges. It is “of consequence to the determination of the proceeding”.28
[47] Similarly, no argument was raised with the general admissibility provision in s 8 of the Evidence Act. This section provides:
8General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a)have an unfairly prejudicial effect on the proceeding; or
(b)needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
[48] In this case the probative value of the evidence is high. It relates to the same pony suffering the same serious condition within some five years of Mr Walters’ pleading guilty and being convicted of a similar offence. It is therefore probative.
[49] There will always be a prejudicial effect on the defendant when admitting evidence of this nature, but here it is not unfairly prejudicial to Mr Walters’ right to offer an effective defence. Inadmissibility requires that the evidence presents some
28 Evidence Act 2006, s 7.
credible risk of “unfair” prejudice on the proceeding and such that it outweighs the probative value of the evidence. Although evidence of Mr Walters previous conviction will impact an assessment of whether he took reasonable steps under s 30(2)(a) of the AWA, the inherent prejudicial effect of admitting this evidence would not be ‘unfair’ as it does not outweigh the high probative value of the evidence under s 8 of the Evidence Act.
[50] That the evidence in this case is propensity evidence introduces a heightened test and a more particularised rule of admissibility under s 43 of the Evidence Act which I now deal with.
Section 43: the admissibility of propensity evidence
[51] The admissibility of propensity evidence offered by the prosecution about a defendant is governed by s 43 of the Evidence Act, which provides:
43 Propensity evidence offered by prosecution about defendants
(1)The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2)When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3)When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(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:
(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:
(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(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 defendant is being tried are unusual.
(4)When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a)whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[52] In Mahomed v R, the Supreme Court reinforced the basis for the admission of propensity evidence under the Evidence Act:29
[3] The rationale for the admission of propensity evidence rests largely, as William Young J says, 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. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That 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.
Section 43(2) and (3): Probative value
First, the evidence must have a probative value in relation to the dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.30
[53] When assessing the probative value of Mr Walters 2012 conviction, I must take account the nature of the issue in dispute.31 In this case, the issue is the failure of
29 Mahomed v R, above n 12.
30 Evidence Act 2006, s 43(1).
31 Section 43(2).
Mr Walters to provide appropriate and timely health interventions, causing Cashew to suffer unreasonable pain or distress. This involved Mr Walters not obtaining appropriate and timely treatment for Cashew’s overgrown hooves. This is exactly the same issue that gave rise to the previous 2012 conviction.
[54] When assessing the probative value of the propensity evidence I may consider, among other things, the following factors:
(a)The frequency of the events:32 the propensity evidence involves one previous event, which is the 2012 conviction.
(b)The conviction in time:33 the conviction occurred some five years before the present proceeding.
(c)The extent of similarity:34 The events are very similar. The allegations that the laminitis observed by the SPCA references both occurrences was described as serious and very painful, and Cashew was the afflicted animal both times. On both occasions Cashew had overgrown hooves and difficulty standing and walking.
(d)Whether the allegations may be the result of collusion or suggestibility:35 The appellant pleaded guilty and was convicted on the previous matter. There is no danger of collision or suggestibility.
[55] The Judge specifically addressed the issue of whether the probative value of the proposed evidence was outweighed by an unfairly prejudicial effect on Mr Walters, she concluded the probative value was high. I agree.
Section 43(1) and (4): unfairly prejudicial to the defendant
[56] Section 43(4) requires that when assessing the prejudicial effect of the evidence on the defendant the Judge must consider:
32 Section 43(3)(a).
33 Section 43(3)(b).
34 Section 43(3)(c).
35 Section 43(3)(e).
(a)Whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)Whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.36
[57] In this case while the evidence of a previous conviction will be prejudicial it is not unfairly so. The fact-finder in this case must properly direct themselves to the “proper use” of the evidence.
[58] In general terms, the more specific the similarities between the proposed evidence and the present issue in dispute, the more likely the probative value of the evidence will outweigh the risk of unfair prejudice.37 In this case the link is very specific, as outlined at [54].
[59] As I have noted above propensity evidence led by way of a previous conviction for similar offending, by necessity will always introduce some element of prejudice against the defendant. The issue is whether it is “unfair”. In that regard, the Judge said:38
[27] However, the defendant has not established how the previous conviction evidence would be unfairly prejudicial, particularly in the context of a Judge-alone trial, as this will be.
[28] In this case, the propensity evidence is a hybrid between orthodox similar fact evidence and evidence of misconduct by the defendant towards the victim. The latter type of propensity evidence was discussed by the minority of the Supreme Court in Mahomed v R.39 Of relevance to this case, the minority noted that the risk of unfair prejudice to a defendant arising out of evidence of other misconduct towards a victim is likely to be less because the misconduct is not extraneous to the alleged offending.40
[29] In addition, it is not just the fact that Cashew had laminitis before, but also the fact the SPCA regarded it as sufficiently serious to prosecute the defendant, which is relevant to the current prosecution. In my view, it is part and parcel of the defendant’s knowledge on which his current alleged acts and omissions are to be objectively assessed.
36 Section 43(4)(a) and (b).
37 Williams v R [2014] NZCA 71 at [8].
38 At [27] – [30].
39 Mahomed v R, above n 11.
40 At [57].
[30] I conclude that the probative value of the evidence of the defendant’s 2012 conviction and the factual circumstances of that offending to the issue in dispute outweighs the risk the evidence may have an unfairly prejudicial effect on the defendant and I rule the evidence admissible at his Judge-alone trial.
[60] In those passages, the Judge noted properly the nature of the propensity evidence in this case.
[61] The Judge hearing this matter will need to ensure that they direct themselves properly. However, it is clear the propensity evidence is admissible and directly relevant to the issues in dispute. The Evidence Act does not support the concept of limited admissibility in Hart v R the Court of Appeal said:41
The general approach of the Evidence Act does not support the concept of limited admissibility of this kind. The statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all. Specific use provisions are expressly adopted when intended and appropriate. The primary touchstone for admissibility is relevance; and relevance is regarded as a general rather than a limited concept. The artificiality and practical awkwardness of a rule which has certain evidence relevant to consistency but not directly to truth leads to the view that the Act should not be constituted as leading to that result unless that conclusion is unavailable. We are satisfied that it is not.
Conclusion
[62] The Judge did not err in admitting the propensity evidence. I agree with her findings.
[63]Accordingly:
(a)Leave to appeal is granted.
(b)The appeal is dismissed.
Grice J
Solicitors:
41 Hart v R [2010] 1 NZLR at [54].
Langford Law, Wellington for the Appellant
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