Weatherston v R
[2011] NZCA 276
•17 June 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA648/2009 [2011] NZCA 276 |
| BETWEEN CLAYTON ROBERT WEATHERSTON |
| AND THE QUEEN |
| Hearing: 6 April 2011 |
| Court: O'Regan P, Chambers and Randerson JJ |
| Counsel: R M Lithgow QC, N Levy and M Lillico for Appellant |
| Judgment: 17 June 2011 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
The killing of Sophie Elliott [1]
Issues on the appeal [5]
Did statements made in the media during the trial render it unfair? [13]
Was X’s evidence and the evidence given by Dr Weatherston
in cross‑examination inadmissible?
X’s evidence [52]
Dr Weatherston's cross-examination [55]
Was X’s evidence and the evidence given by Dr Weatherston
in cross‑examination used inappropriately by the prosecutor? [63]
Should the Judge have given “a hybrid propensity/lies direction”? [68]
Was the Judge’s propensity direction appropriate? [76]
Did the prosecutor by his conduct cause a miscarriage of justice? [87]
Crown expert [89]
Cross-examination of the accused [91]
Duty to put the case concerning the knife [94]
Conclusion [102]
Should the photographs of Ms Elliott’s wounds have been admitted? [103]
Result [106]
Postscript [107]
The killing of Sophie Elliott
On 9 January 2008 Sophie Elliott was killed in her own home in Dunedin. Death resulted from multiple stab wounds. The killer was Clayton Weatherston, the appellant. He was Ms Elliott’s former lover.
Dr Weatherston was calm when the police arrived. He admitted killing Ms Elliott. He gave as the reason “the emotional pain that she [had] caused [him] over the past year”.
Dr Weatherston was charged with murder. At his trial in June and July 2009, he admitted being the killer, but said he had been provoked. He said that Ms Elliott had attacked him with a pair of scissors and that he had thereafter lost self control. Defence counsel accordingly submitted to the jury that the proper verdict was manslaughter.
The jury convicted Dr Weatherston of murder. He now appeals against that conviction.
Issues on the appeal
Mr Lithgow QC, for Dr Weatherston, advanced seven grounds of appeal. The first was that Dr Weatherston had been denied a fair trial as a consequence of various statements made in the media during the trial. Although the trial Judge, Potter J, had attempted to deal with these, he submitted that the negative publicity was of such a character that no judicial direction could counter it.
The second ground of appeal related to evidence given by X,[1] a former lover of Dr Weatherston, and certain parts of the cross-examination of Dr Weatherston. As to the former, the Crown led evidence of an incident where Dr Weatherston had hit and kicked X. Everyone accepts that evidence was admissible. In cross‑examination, however, X referred to Dr Weatherston having tried to blame her for the incident, something she just “couldn’t believe” and something she thought “remarkably unfair”. Mr Lithgow submitted that evidence was inadmissible in terms of s 38 of the Evidence Act 2006. He submitted the cross-examination of Dr Weatherston on this topic was inadmissible on the same ground.
[1]Potter J granted X “name suppression, suppression of occupation or any information [likely] to lead to her identity”: R v Weatherston HC Christchurch CRI-2008-012-137, 30 June 2009.
The third ground of appeal arose if we held X’s disputed evidence and the disputed evidence given by Dr Weatherston in cross-examination to be admissible (as we do hold). Mr Lithgow submitted that, even if the evidence was admissible, it was inappropriately used by the prosecutor at trial.
The fourth ground of appeal related to one aspect of Potter J’s summing-up. Mr Lithgow submitted the case called for what he termed “a hybrid/propensity lies direction”. Did it?
The fifth ground of appeal related to another aspect of the summing-up. The defence had relied on evidence which, they submitted, demonstrated that Ms Elliott had a propensity to fling insults “if she felt like it” and to “resort to violence if she felt pushed to frustration over relationship issues”. Mr Lithgow acknowledged that Potter J had given a propensity direction, but said it was an inappropriate one. It was, he submitted, “a direction designed to cover propensity evidence directed at impeaching the accused”. It was inapt, he submitted, where the defence was calling propensity evidence directed at the victim’s behaviour. Mr Lithgow submitted this misdirection gave rise to a miscarriage of justice.
The sixth ground of appeal related to the alleged misconduct of the prosecutor at trial.
The final ground of appeal was concerned with whether photographs of Ms Elliott’s wounds should have been admitted as exhibits.
We shall deal with these issues in turn.
Did statements made in the media during the trial render it unfair?
Dr Weatherston’s trial took place in a blaze of publicity. It is, of course, not unusual for murder trials in this country to feature heavily in the media and, since the 1990s, to be televised. Mr Lithgow does not submit that such publicity of itself caused Dr Weatherston’s trial to be unfair. It was nonetheless, he submitted, an important backdrop to two other events which occurred during the trial. These two events were a television interview by Dr Warren Young,[2] the Deputy President of the Law Commission, and two back-to-back articles in the Listener, “The Provocation Debate: A law both hated and hailed”[3] and “The final insult”[4]. The catalyst for both the interview and the articles was another murder trial in which provocation featured. It was the trial of Ferdinand Ambach, who was charged with murdering Ronald Brown. Mr Ambach admitted killing Mr Brown, but asserted he had been provoked by Mr Brown who had made sexual advances towards him. These advances, Mr Ambach said, caused him to fly into a “monstrous rage”. The jury in that trial found it was a reasonable possibility that the sexual advances had occurred and had provoked Mr Ambach. The jury found him not guilty of murder but, on account of provocation, guilty only of manslaughter.
[2]Interview with Dr Warren Young, Deputy President of the Law Commission (Greg Boyed, TVNZ News at 8, Television New Zealand,10 July 2009).
[3]David Lomas “The Provocation Debate: A law both hated and hailed” New Zealand Listener (New Zealand, 25 July 2009) at 18.
[4]Ruth Laugesen “The final insult” New Zealand Listener (New Zealand, 25 July 2009) at 24.
The verdict of manslaughter in that case was the latest in a string of cases where the defence had relied on provocation. Some of those verdicts had proved controversial in the media. Victims’ families and friends had, on occasions, reacted adversely to the verdicts and, in particular, to assertions made by the accused that their loved ones had provoked the killing.
Before we give the details of what Dr Young and the Listener articles said, we need to make clear that Potter J was well alive to the difficulties these media comments posed. Right through the trial, she constantly reminded the jury to judge Dr Weatherston exclusively on the evidence heard in Court and not to read or watch anything concerning the trial. Following the Ambach verdict and the publicity surrounding it, the Judge gave a special direction to the jury about ignoring “references in the media or anywhere else ... referring to other trials where the defence of provocation[5] may have been raised”.[6] Another direction was given after the Listener articles were published. Mr Lithgow does not criticise the content of any of the directions the Judge gave to the jury. His complaint is that these media comments were so harmful to Dr Weatherston’s defence that nothing short of aborting the trial would have sufficed. The Judge refused several applications to abort the trial. The issue for us really becomes whether she erred in so refusing. Were the comments so damaging that continuing the trial became unfair?
[5]It is, of course, only a partial defence, but, for ease of expression, we refer to it in these reasons as “the defence of provocation” (as did the Judge).
[6] R v Weatherston HC Christchurch (CRI-2008-012-137), 13 July 2009.
Dr Young was interviewed on TV7, a minor channel. A brief excerpt from the interview was, however, picked up by One News in its main news bulletin on 10 July 2009. Dr Young in the interview did not specifically discuss the Ambach case or indeed any other case. Rather, he was speaking generally as a law reformer and referred to the Law Commission’s work on provocation, suggesting that the defence should be repealed. The part of the interview picked up and used by TVNZ on its website read as follows:[7]
Provocation is a defence that is used to reduce an offence from murder to manslaughter with lawyers arguing that the offender was provoked and lost all control.
But the Law Commission has twice recommended the Government repeal the law.
“For a start it’s a nonsensical defence because it actually requires the judgement that reasonable people would lose self-control and kill. That’s a contradiction in terms because reasonable people don’t kill,” says Warren Young from the Law Commission.
[7] “Verdict raises provocation issues” (10 July 2009) TVNZ <>
Two days later, a Labour Member of Parliament backed up the Law Commission’s view that the defence of provocation should be removed. Charles Chauvel MP was reported in The New Zealand Herald of 11 July 2009 in these terms:[8]
Gay Labour MP and former lawyer Charles Chauvel is spearheading a bid to remove provocation as a defence in criminal cases.
The defence is often used in court by defendants to justify violent attacks if provoked by a victim. But now Mr Chauvel has drafted a Bill to get the defence of provocation removed.
[8]NZPA “Gay MP calls for change to law” The New Zealand Herald (New Zealand, 11 July 2009) at A5.
The next step in the Ambach aftermath was the Listener articles, posted to subscribers on 17 July 2009 and appearing in shops the following Tuesday (21 July). The articles referred to not only the Ambach case but a number of other cases where provocation had been raised, sometimes successfully from the defence perspective, sometimes unsuccessfully. Mr Lithgow submitted that, despite the balance implied by the articles’ titles, the overall tone of the article was condemnatory of the defence. We do not agree with that submission. The articles were balanced. Certainly they quoted people, normally members of victims’ families, who were opposed to the present law. The article also referred to the views of Dr Young, Mr Chauvel and Associate Professor Elisabeth McDonald. On the other side of the fence, however, were Peter Williams QC and Ron Mansfield, with the latter described in the Lomas article as “one of the rising stars of the Auckland bar”. They both expressed support for the provocation concept. Mr Mansfield accepted that the law on provocation had become “confusing”. He explained, however, why in his view the Law Commission’s response of “shifting the ‘provocation defence’ to a sentencing issue” would not work.
The Lomas article concluded:[9]
Will the law on provocation be changed?
No full study of the frequency of provocation as a partial defence to murder has been done. However, the Law Commission, in reviewing the law, looked at 81 murder trials handled by Crown prosecutors in Auckland and Wellington over a two-year period. It found that provocation was used as a partial defence only 15 times. In five cases out of the 81, a manslaughter verdict was returned, although in one case the commission believed a second “defence” was the most likely reason for the manslaughter verdict.
In the wake of the Ambach manslaughter verdict, Labour MP Charles Chauvel has called for a change.
But Justice Minister Simon Power is more cautious. He has asked for an updated report on the issue from the Ministry of Justice, taking into account the Law Commission report of 2007. Power’s office says he is looking to take a paper to Cabinet on the issue soon.
[9] At 22.
We are satisfied that neither the Young interview nor the Listener articles led to Dr Weatherston’s trial becoming unfair. The Judge was right not to abort the trial after these matters were published. These are our reasons.
First, there is no evidence of any kind that any juror saw the Young interview or the Listener articles. The entire argument on this issue is founded on an unsubstantiated premise that a juror may have seen or read the publications in question.
Secondly, even if a juror had read the Listener articles, the articles’ tone was balanced and cerebral. They did not comment in any way on the Weatherston trial.
Thirdly, even if a juror had seen the Young interview, we do not accept Mr Lithgow’s submission that Dr Young, as Deputy President of the Law Commission, would be seen as an “authority figure” whose view must or should be followed. There are today few, if any, “authority figures” whose views are unquestionably followed by anyone. No reasonable juror would consider the Law Commission’s views on any particular matter sacrosanct. In any event, Dr Young was expressing a view as to what the law should be. He did not in any way counsel juries to ignore the current law.
Fourthly, Mr Lithgow’s argument requires us to find that the jury might well have ignored the Judge’s clear and repeated directions. It is mere speculation that the jury might have ignored the directions. There is nothing in the record to indicate such disobedience. It is not unknown, for example, for the foreperson to advise the trial judge when something untoward concerning the jury or a particular juror’s conduct has come to light. Nothing of that kind occurred here. The criminal system proceeds on an assumption that judges’ directions are faithfully followed by juries: throw away that assumption and every verdict becomes suspect. We acknowledge immediately that some concerns might be so significant that the court (either the trial court itself or an appellate court) feels uneasy about dealing with those concerns by way of direction. In those cases, aborting the trial and starting again becomes the only safe solution. But this is not a case which crosses that threshold.
Fifthly, Mr Lithgow’s submission ignores the fact-specific nature of the Judge’s summing-up. The Judge gave the jury a questionnaire which they had to follow. We set out the third and fourth pages of that questionnaire:
Step (1) Provocation acts or words
Is there a reasonable possibility that the following occurred in Sophie’s bedroom on 9 January 2008:
(a)Did Sophie make insults against the accused’s family?
(b)Did Sophie lunge at the accused with a pair of scissors?
(c)Did the lunge cause the accused’s glasses to fall off?
If your answer to one or more of these questions is yes, go to Step (2).
If your answer to all of the above is no, the defence of provocation is not available and Clayton Weatherston is guilty of murder.
Step (2) Did the accused lose the power of self-control
Is there a reasonable possibility that the acts of provocation under Step (1), deprived Clayton Weatherston of his power of self-control and thereby induced him to kill Sophie Elliot?
If your answer is yes, go to step 3.
If your answer is no, the defence of provocation is not available and Clayton Weatherston is guilty of murder.
Step (3)Ordinary person having special characteristics
Is there a reasonable possibility that the act or acts of provocation were sufficient to deprive of the power of self-control, a person having the power of self-control of an ordinary person but otherwise having Clayton Weatherston’s characteristics, as you find them to be?
The accused claims the following characteristics:
(a) vulnerability without glasses because of poor eyesight;
(b) complex psychological make up:
(i) anxiety disorder
(ii) narcissism
(iii) obsessionality
(iv) histrionic and borderline personality traits.
If your answer is yes, the defence of provocation applies and Clayton Weatherston is guilty of manslaughter, as pleaded.
If your answer is no, the defence of provocation is not available and Clayton Weatherston is guilty of murder.
There was no room for the jury to meditate upon or express a view on the defence of provocation. The Judge skilfully and properly corralled them by the use of her three step, fact-specific questions. The jury were told exactly what to do if their answer to a particular question was “yes” or “no”. They were given no latitude to wander off-task. There is no basis for speculation that the jury did not faithfully answer the questions posed by the Judge. Further, the questionnaire formed part of a summing-up which emphasised repeatedly the need for the jury to apply the law as the Judge directed them on it, to judge the accused solely on the evidence, not on external information, comment, or speculation, and not to access any information about the trial or about any matters touching on the trial in the media, on the internet, on Facebook or any other source.
Finally, the fact that some aspect of the criminal law may be controversial does not mean that verdicts in such controversial areas are suspect. Many people in New Zealand, including one suspects many jurors, do not support current laws relating to drug use (especially cannabis cultivation and supply), abortion and smacking children. But this does not lead reasonable people to question verdicts in such areas. Jurors take an oath, after all, to apply the existing law and, in the absence of evidence they have breached their oaths, there is no sound reason to doubt the outcome of their deliberations. Some members of the Ambach jury may have been aware of media publicity following Phillip Edwards’s conviction only of manslaughter after bashing David McNee to death. Mr Edwards, like Mr Ambach, had claimed he had been provoked by his victim making sexual advances towards him. The uproar about the Edwards verdict did not stop the Ambach jury bringing in a manslaughter verdict in very similar circumstances.
Indeed, as Mr Mander, for the Crown, submitted, even the introduction of a Bill in August 2009 to repeal the provocation defence,[10] which, in his words, “must symbolise the most overt public rejection of the defence”, did not prevent juries returning verdicts of manslaughter on the basis of provocation after that date. He referred us to the verdicts in R v Fallow[11] and R v Bourke,[12] both of which trials took place in November 2009.
[10]The Crimes (Provocation Repeal) Amendment Bill 2009 (64-1), which was enacted, as the Crimes (Provocation Repeal) Amendment Act 2009, on 7 December 2009.
[11] R v Fallow HC Invercargill CRI-2008-025-3614.
[12] R v Bourke HC Palmerston North CRI-2009-054-4180.
We see this first issue as essentially one of fact and judicial evaluation. We have not overlooked, however, the cases to which Mr Lithgow referred us. The first was Solicitor-General v Wellington Newspapers Ltd.[13] The Solicitor-General brought contempt proceedings after some newspapers and Radio New Zealand published prejudicial material about John Gillies just days ahead of his scheduled trial for assaulting a prison officer. The Judge due to preside at that trial had to adjourn it because of the prejudicial publicity. One can immediately see that, on the facts, that case differs significantly from the present. Mr Lithgow cited the case for the following proposition:[14]
The particular facet in issue here is to maintain the right of accused persons to a trial before a jury free of bias and preconception whose decision will be based only upon facts that have been proved in evidence adduced in the course of the trial in accordance with the recognised rules and procedures of Courts of law.
[13] Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 (HC).
[14] At 47.
No one doubts the correctness of that proposition. What we do not accept is that the publication of the Young interview and the Listener articles, in the overall circumstances we have outlined, has led to a breach of that right.
Similar comments apply with respect to Mr Lithgow’s reliance on Gisborne Herald Co Ltd v Solicitor-General[15] and Solicitor-General v Broadcasting Corporation of New Zealand.[16]
[15] Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA).
[16] Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 (CA).
Undoubtedly Mr Lithgow’s best case was a decision of the Court of Criminal Appeal of Ireland, Director of Public Prosecutions v Dumbrell.[17] In that case, two brothers, Jeffrey and Warren Dumbrell, were being tried for murder. They were charged with using a baseball bat and knife to attack a man in a housing estate in Dublin. The cause of death was a stab wound to the thigh. The defence run was lack of intent to kill, with the consequence that, it was said, manslaughter was the appropriate verdict.
[17] Director of Public Prosecutions v Dumbrell [2010] IECCA 84.
In the middle of the trial, Carney J, the trial Judge, adjourned early one day so that he could deliver a lecture at University College, Cork. The essence of that lecture was summarised in the following passage of the Court of Criminal Appeal’s judgment:[18]
Sentences in fatal stabbing cases, other than murder, do not do justice to the victims or their families.
Fatal stabbings are out of control and their occurrence will continue to rise.
Sentences imposed in fatal stabbing cases of manslaughter are insufficient to do justice to society from which the Courts are disconnected.
That sentences for the vicious wilful and gratuitous taking of life are wholly inadequate and devalue human life.
Manslaughter sentences are a major source of the grievances of victims and their families in contrast to the mandatory murder sentence of life.
That trial judges are powerless in being able to impose a deterrent or just sentence in manslaughter cases.
What formerly would have been a fair fight now turns into a knife killing.
[18] At 13.
The speech attracted considerable publicity. Clips from the speech were broadcast on television and radio. Those media reported that the “most senior criminal judge in the country” had stated that “the incidents of fatal stabbings in this country is now out of control” and that “the average sentence actually being served by offenders for fatal stabbings is four and a half years”.[19] Another programme said:[20]
The courts are dealing with an epidemic of knife crime, an epidemic that is likely to get worse. That was the message from Judge Paul Carney, the most senior criminal judge in the State in a speech in Cork last night. Now the judge avoided direct criticism of the court system but he also pointed out that many victims felt the sentences handed down for manslaughter are often too lenient.
[19] At 10.
[20] At 10.
There was also, according to the Court of Criminal Appeal, “extensive reportage in the print media”.[21] One headline read: “Knife crime is now out of control, says top criminal judge.” Another paper reported:[22]
Fatal stabbings are out of control but a lenient sentencing regime is not equipped to deter criminals ... Mr Justice Paul Carney said, despite wilful violent and gratuitous killings, criminals were not being jailed for as long as people would expect.
[21] At 11.
[22] At 11.
Following this barrage of publicity right in the middle of the Dumbrells’ trial for murder by knifing, the defence sought a discharge of the jury. The Judge declined the application. The jury subsequently convicted both men of murder. The issue on the appeal was whether the Judge was right to refuse to discharge the jury. The Court of Criminal Appeal held that the Judge should have aborted the trial. The verdicts were set aside and a retrial ordered.
In the course of its reasoning, the Court made the following observation:[23]
The address and the publicity it received made no reference to the particular trial which was taking place. Public discussion, including critical public discussion, of the criminal law, the functioning of the courts and indeed sentencing generally or sentencing in relation to particular crimes may occur without prejudicing any ongoing trial unless there are special attendant circumstances. Even then, in most cases it is likely that any question of prejudice could be resolved by appropriate directions to the jury. If the statements in question had been made by another person or even another judge unconnected with the trial different considerations might have arisen.
[23] At 16.
We agree with that proposition. The Court in that case concluded there were “special attendant circumstances”. We consider the present case can be distinguished from Dumbrell on the facts.
First, we think it is entirely possible here that no juror saw the Young interview or the Listener articles. That is to be contrasted with the position in Dumbrell where the Court of Criminal Appeal concluded, having regard to the publicity that occurred, that “probably all members of the jury became aware of and had knowledge of the essential elements of the trial Judge’s statements” in the lecture.[24] The Court continued:
Certainly a significant number of members of the jury must have become so aware. The Court is also satisfied that there is a real possibility that one or more members of the jury may have accessed and read the full text of the Judge’s address online which readers of the Irish Times were invited to do in its front page report.
[24] At 16.
The jury were all aware that the Judge presiding over their trial was giving a lecture in Cork, as that fact had been mentioned to them on two occasions. That is a very significant difference from what happened in the present case.
Secondly, the Court of Criminal Appeal listed as its first “key factor” making up the “special attendant circumstances” the fact that “the statements in question were made by the presiding judge at the trial”.[25] The Court continued:
The presiding judge is the central figure of authority in a trial. The jury are exclusively responsible for findings of fact but they exercise their function under the guidance and directions of the trial judge.
[25] At 17.
Later, the Court said:[26]
A citizen being tried before a judge and jury must be entitled to have his trial proceed without the trial judge making public comments during that trial which, because of their particular nature, carry the risk of prejudicing its fairness.
[26] At 18.
The out of court statements in the present case were not made by the trial judge. That is a significant difference between the two cases.
Finally, there was the close nexus between what the Judge was talking about in his lecture and the nature of the trial in which the jury were then sitting and the issues which they had to judge. As the Court said:[27]
The statements made by the trial Judge [in his lecture] focused on fatal stabbing cases. This was a fatal stabbing case.
[27] At 17.
In his lecture, the Judge had made it clear that fatal stabbings were, in his opinion, out of control and that sentences in such cases, other than murder, did not do justice to the victims or their families. The closeness of the nexus between the out of court statements and the trial at hand in the present case was not as acute.
For all these reasons, we consider the present case falls within the Court of Criminal Appeal’s general (non-special) category where any question of prejudice could be resolved by appropriate directions to the jury.
Although, as we have said, Mr Lithgow’s focus was on the Judge’s alleged error in failing to abort the trial, he did also submit that the Judge should have given “specific, emphatic directions” if, contrary to his principal submission, we were to find the Judge was right not to abort the trial. In this regard, it is noteworthy that Dr Weatherston’s very experienced trial counsel, Mrs Ablett-Kerr QC, did not seek further directions from the Judge. Nor did Mr Lithgow tell us what these “specific, emphatic directions” should have been. We consider the Judge was emphatic. The directions were appropriate. To have referred specifically to the Young interview or the Listener articles might simply have had the perverse effect of provoking jurors’ curiosity as to what was being said in the media.
Before leaving this ground of appeal, we should mention an address Potter J delivered at a conference of Australian Supreme and Federal Court judges held in Wellington in January this year. Despite the address being marked “Confidential: for conference delegates only”, someone obviously ignored that injunction, as a copy of it arrived unsolicited in Mr Lithgow’s office. Mr Lithgow relied on the address to show that the Judge herself thought that “the response of the public to the trial was that they grew to ‘despise’ Clayton Weatherston and that his use of the provocation defence to put Sophie Elliott on trial was not right”. The Judge, Mr Lithgow submitted, said the public drew the conclusion the defence should no longer exist. Her assessment of the media’s place in prompting the reaction was “huge”. The Judge’s view of the matter, Mr Lithgow submitted, was that the media’s coverage was highly prejudicial.
With respect to Mr Lithgow, he has misinterpreted what the Judge said in her conference address. Her opinion that the New Zealand public “grew to despise Clayton Weatherston” arose from the nature of the evidence in the trial, his evidence and the way he gave it, and the fact the trial was televised. Her opinion had nothing to do with the Young interview or the Listener article, neither of which she mentioned.
Similarly, the Judge’s view that the New Zealand public formed a view that “the provocation defence ... should not be available” arose from “the evidence at trial” and “the TV coverage” of it. The Judge’s opinion on this topic, whether right or wrong, does not assist this first ground of appeal. There are many criminal trials where the public forms a dim view of the accused either from the evidence as to what he has done or from the way he carries on at trial or both. Reporting those facts does not lead to an unfair trial. Potter J, in her address, did not suggest anything to the contrary.
We reject the first ground of appeal. The statements made in the media during the trial did not render the trial unfair. The Judge correctly dealt with them by way of directions and the form of her summing-up.
Was X’s evidence and the evidence given by Dr Weatherston in cross‑examination inadmissible?
X’s evidence
As we have said, X, a Crown witness, was a former lover of Dr Weatherston. The Crown led evidence of an incident where Dr Weatherston had hit and kicked X. Everyone accepts that evidence was admissible. What Mr Lithgow submits was inadmissible was the following evidence given in cross-examination:[28]
Q In fact, he [Dr Weatherston] went and sat in the living room area and curled up, didn’t he? He was mortified by what he had done?
A I – if I’m in the bathroom, he’s in the living room, I have no idea what he’s doing, but he – I think there was, he was, he couldn’t believe that he had done that for a start, but he also tried to blame me at times, as well, which I couldn’t believe, so if, on one hand, I think, there was an element of disbelief, and on the other hand, he was also trying to blame me, so ...
Q How did he blame you?
A I can’t remember exactly what he said, but, just his undertone of trying to make me take responsibility for things, which I thought was remarkably unfair.
[28] “Ums” omitted.
The first point to note is that the prosecution played no role in the eliciting of this evidence. Mr Lithgow submitted, however, that, even if it was not “inadmissible evidence ... offered by the Crown”, it was “inadmissible evidence ... offered by the defence”. But why? The answer was responsive to the question asked. X was disputing that Dr Weatherston was sorry or “mortified” by what he had done to her. This was relevant to the provocation defence.
Mr Lithgow submitted that X’s answer was “veracity evidence” and as such had to comply with ss 37 and 38 of the Evidence Act. It was not veracity evidence. Its purpose was not to support an inference as to Dr Weatherston’s “disposition ... to refrain from lying”.[29] Mr Lithgow's fallback argument was that, even if it was not veracity evidence when initially given, it was used by the prosecutor as part of the foundation for a submission that Dr Weatherston was a liar. It thereby became veracity evidence, even if not initially of that hue. We reject that submission as well. We deal with the question whether the prosecutor inappropriately used this evidence in the next part of these reasons.
Dr Weatherston's cross-examination
[29] Evidence Act, s 37(5).
Dr Weatherston’s examination-in-chief was lengthy. His counsel explored with him, in detail, many aspects of his past life, right from childhood. The evidence covered a number of incidents from school and university days and of social interactions he had had, particularly sexual interactions with women. This evidence was relevant to psychiatric evidence the defence proposed to call. That psychiatric evidence was relevant to the question whether Dr Weatherston had certain psychological characteristics which, if established, might be of relevance to step (3) of the Judge’s questionnaire: see [25] above. There is no doubt that Dr Weatherston's evidence about those incidents was admissible.
The prosecutor cross-examined Dr Weatherston at length. In the course of that cross-examination, he focused on “approximately ten incidents or situations in Clayton Weatherston’s life” to which Dr Weatherston had referred.[30] Mr Lithgow submitted the prosecutor undertook that detailed examination “with a view to establishing that [Dr Weatherston] had a propensity to lie to avoid responsibilities for matters which were his fault”. Because that was the motivation behind the questioning, the prosecution was in effect eliciting veracity evidence, a step it should have taken only if it complied with s 38(2). Mr Lithgow submitted that subsection provided for two preconditions which must be fulfilled before the prosecution could “offer evidence about a defendant’s veracity”. Neither precondition was fulfilled here.
[30]We have taken the figure “ten” from Mr Lithgow’s submissions. He did not go into detail as to the particular passages he submitted were inadmissible.
First, s 38(2)(a) provides the prosecution may offer evidence about a defendant’s veracity only if “the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue”. Mr Lithgow submitted Dr Weatherston had not offered such evidence and had not made such a challenge. Secondly, even if the first condition is fulfilled, the prosecution may offer evidence about a defendant’s veracity only if the judge permits the prosecution to elicit it. Subsection (3) lists matters the judge may take into account in determining whether to give that permission. Mr Lithgow complained the prosecutor had not sought such permission before undertaking this cross-examination.
It obviously did not occur to anyone at trial that the now disputed passages of cross-examination triggered ss 37 and 38. Certainly Mrs Ablett-Kerr did not raise objection at trial. She was right not to do so. The cross-examination did not engage those sections. The Crown was entitled to challenge Dr Weatherston's version of the incidents. Indeed, given there was a “clear divergence” between Dr Weatherston’s version of relevant past events and other available accounts, as one of the experts, Professor Phillip Brinded, noted, the Crown was obliged to put those discrepancies to Dr Weatherston in accordance with its obligations under s 92 of the Evidence Act if it intended to take issue with his version of those events.
In our view, Mr Lithgow’s argument is, with respect, misconceived for the reasons given by Mr Mander in his submissions. We set out the relevant part of Mr Mander’s submissions, with which we agree:
The veracity provisions were not intended to apply to the parties putting their cases to witnesses, but rather are directed at the introduction into the case of material that would at common law have been collateral.
The Law Commission’s Evidence Code 1999 intended to abolish the common law “collateral issues” rule, which was engaged when cross‑examination was directed to a matter that was not a fact in issue, typically questions about a witness’s truthfulness. The Code’s general policy was to allow the admission of evidence that would contradict the witness’s answers so long as it was relevant and “substantially helpful”.[31]
The Law Commission considered that different rules should apply to criminal defendants. The law needed to protect defendants from being exposed to cross-examination about past convictions or past offending every time they put their own truthfulness in issue.[32] As a result the original formulation of the current s 38(2) in the Law Commission’s Evidence Code 1999 (there, s 40(2)) required the Crown to seek the Court’s leave only where the evidence the Crown intended to “offer” related to allegations of other offending by the defendant.[33] The Select Committee, however, considered that the Code went too far in the prosecution’s favour. The Committee recommended that the clause (cl 34(2) in the Evidence Bill) be amended to reinstate the common law that “limits the opportunity for the prosecution to call evidence as to the defendant’s bad character.”
[31] Law Commission Evidence: reform of the law (NZLC R55, 1999) vol 1 at [160]‑[161].
[32]At [163]. See also the commentary to s 38 of the Evidence Act in Donald Mathieson (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [EVA38.1]‑[EVA38.2].
[33]Law Commission Evidence: code and commentary (NZLC R55, 1999) vol 2 at 110‑111.
We further agree with Mr Mander that the practical consequences of Mr Lithgow’s interpretation would be unworkable. It would require leave to be obtained – and a substantial helpfulness analysis to be conducted – every time a prosecutor wished to test the truthfulness of the defendant’s evidence. The policy of ss 37 and 38 was not intended to limit the ability of prosecutors to ask defendants or other witnesses directly whether their evidence was truthful. The concern of ss 37 and 38 is with diverting trials into collateral issues. That concern did not arise in the present case.
The questions asked by the prosecutor elicited relevant evidence in terms of s 7 of the Evidence Act. The prosecutor did not have to seek leave from the Judge before asking the questions he did. What he later submitted to the jury does not affect the categorisation of the evidence adduced.
The second ground of appeal accordingly fails. But this still leaves open the possibility, of course, that the prosecutor may have later inappropriately used this evidence in the course of his final address. To that point we now turn.
Was X’s evidence and the evidence given by Dr Weatherston in cross‑examination used inappropriately by the prosecutor?
Mr Lithgow submitted that, even if the evidence was admissible, the Judge should not have permitted the prosecutor to address the jury on the basis that Dr Weatherston had been shown to be a liar. He submitted that, once it became clear how the Crown proposed to use the evidence (that is, to label Dr Weatherston a liar), “the jury should have been told to ignore it”. In his oral submissions, Mr Lithgow said: “The Judge should have stopped the questioning once it was put to Dr Weatherston that he was a liar.”
Further, Mr Lithgow submitted that the prosecutor had improperly put to the jury in his final address that Dr Weatherston was a liar, “notwithstanding its failure to have Clayton Weatherston call X a liar, or to achieve any other real admission of a lie”.
We do not accept either submission. As to the first, the Evidence Act “proceeds on the basis that generally speaking, evidence is either admissible for all purposes or it is not admissible at all”.[34] Just as the Crown may challenge the correctness of an accused’s account, so too it can put to the accused that his or her account is not only wrong but deliberately wrong. Indeed, arguably that proposition should be directly put if the prosecutor intends to close on the basis the accused has lied. The Judge had no power to stop the cross-examination in the way Mr Lithgow suggests.
[34] Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54].
As to the second submission, it is not for the Judge to control what counsel say in their final addresses, save in rare circumstances. On the basis of the evidence in this case, the prosecutor was entitled to put to the jury a submission that Dr Weatherston was someone who lied to avoid responsibility. Whether the jury accepted that submission was entirely up to them. The sorts of incidents in question are by their nature ones where different participants can have different perceptions. But that assessment by us does not mean that the prosecutor was not permitted to advance the submission.
The prosecutor’s cross-examination of Dr Weatherston and final address to the jury were not inappropriate. This ground of appeal fails.
Should the Judge have given “a hybrid propensity/lies direction”?
If we were to find the evidence admissible and the prosecutor’s use of it appropriate, then Mr Lithgow submitted that, at the very least, the Judge should have given a specific direction – what he called “a hybrid propensity/lies direction” – to the jury. Mr Lithgow submitted the direction should have been along the following lines:
First the jury should have been told that the evidence was only capable of being substantially helpful on the issue of Clayton Weatherston’s propensity to lie if the jury accepted that he had in fact lied on more than one of the occasions relied on by the Crown, so that a disposition or natural tendency or inclination to lie was established. In each case was what he said really a lie, or was it an issue of perspective, recall or emphasis only? In each case where the jury is not satisfied that there has been a lie, they should put that evidence aside and pay no more attention to it. In the case of any real lies, remember that people lie for many reasons. Does a lie about a social or scholastic matter leave you satisfied that Clayton Weatherston has a propensity to lie under oath about something so serious as a murder charge?
To use X’s evidence as an example, the Judge could have warned the jury that:
(a)the jury must be satisfied before using the evidence that Clayton Weatherston did lie by saying that the incident was her responsibility when he knew that was false;
(b) and then that people lie for various reasons;
(c)and finally that the jury should not necessarily conclude that, just because the defendant lied to them or to X, that the defendant lied in his evidence about what Sophie Elliott had said and done on the morning of her death.
We set out what the Judge did say on the topic of Dr Weatherston’s evidence:
[18] In this case the accused, Clayton Weatherston, has chosen to give evidence, but he still carries no onus. What the accused said in the witness box is evidence like all the other pieces of evidence in the case. By going into the witness box he does not have to prove anything.
[19] As I have stated, the law is that the Crown must prove each essential ingredient of the charge beyond reasonable doubt; and in this case, the Crown must exclude beyond a reasonable doubt, the defence of provocation, before you may bring in a verdict of murder. The fact that the accused gives evidence does not alter the burden of proof. It rests with the Crown.
[20] The accused has explained his version of events to you. If you accept the accused’s evidence on the key issues, or if you consider there is a reasonable possibility that the accused’s evidence on the key issues is true – in particular as to the events he said occurred and the acts and the words of Sophie he described in evidence in Sophie’s bedroom on 9 January 2008 – and in either case you determine, after following the directions about provocation I shall give you later in this summing up, that the defence of provocation applies – the accused would be not guilty of murder.
[21] If you reject the accused’s evidence on the key issues, you must not automatically conclude that he is guilty of murder. You must still examine all the evidence which you do accept and decide whether it establishes beyond reasonable doubt, first, that the accused killed Sophie Elliott with murderous intent, and if so, secondly, that the Crown has excluded provocation. Only if your answer is yes on both issues, will your verdict be guilty of murder.
Clearly this does not go as far as Mr Lithgow suggests. But then Mr Lithgow’s suggested direction is still very much focused on the s 37 test, which we have rejected as irrelevant.
The first point to make is that Mrs Ablett-Kerr did not seek a direction along the lines now suggested by Mr Lithgow.
Secondly, “a lies direction is not required where the Crown simply maintains that a defendant’s exculpatory explanation is false”.[35] It is true that a s 124(3) direction is sometimes given with respect to collateral lies in the witness box, so as to make it clear that the collateral lies are “relied on only as to the credibility or otherwise of the [defendant’s] explanation”.[36] The other “lies” here (if lies they be) were not, however, collateral. The other incidents were directly relevant to the psychiatric assessment of Dr Weatherston. If he had lied about the other incidents, that would be directly relevant to an assessment of his psychological makeup, the vital issue on step 3 of the questionnaire.
[35] R v Guo [2009] NZCA 612 at [68].
[36] Ibid.
Thirdly, whether a “lies” direction under s 124 should be given is a matter of judicial discretion. The very experienced defence counsel did not seek one. The Judge may well have thought that to give one would simply draw more attention to X’s remark and Dr Weatherston’s comment upon it than was merited. The direction the Judge did give in this case is the very sort of direction this Court recommended in R v Worden.[37] We also note the following observation in that case:[38]
[Counsel for the appellant] seemed at one point to be arguing that every time the Crown attacks the veracity of the accused’s evidence in the witness box or his out of Court statements, a lies warning is required. That would be to require such a warning in almost every case. The very suggestion from the Judge that the accused might be lying is unlikely to be helpful to the accused and a lies warning is necessary only when there is some real danger of inappropriate reasoning.
[37] R v Worden CA111/99, 8 July 1999 at [20], cited with approval in Guo at [69].
[38] Ibid.
We consider there was no such risk in the present case. Certainly the Crown contended Dr Weatherston was lying about what happened on the morning of the killing. We suspect that the evidence relating to other incidents, while very pertinent to the assessment of Dr Weatherston’s psychological make up, was not of fundamental importance in determining what happened on the morning of the killing. Even less crucial was any assessment as to whether he had lied about the other incidents. They were, after all, in a different league from what happened on 9 January 2008.
We consider the Judge’s direction in the circumstances was adequate. No direction of the sort now submitted by Mr Lithgow was required.
Was the Judge’s propensity direction appropriate?
The defence case was that, on the morning of 9 January 2008, when Dr Weatherston was visiting Ms Elliott, he asked her if he should have an STD test as a result of her having had casual sex with a man while on a recent trip to Australia. He said this caused her to become violent and angry. She made insults about his family and she lunged at him with a pair of scissors, causing his glasses to fall off. It was these actions which provoked his loss of self-control and the stabbing.
The defence relied on extracts from Ms Elliott’s diary, where she had described attacking a previous boyfriend after a series of insults. The defence also relied on evidence that she had smashed a door at Dr Weatherston’s flat in a demonstration of grievance and anger. Ms Elliott’s alleged propensity was that she was given to insults if she felt like it and could resort to violence if she felt pushed to frustration over relationship issues.
The Judge gave a standard propensity direction. Mr Lithgow submitted that the Judge erred in the final paragraph of that direction:
[62] If you are not satisfied the evidence of the episode with Y[39] establishes the tendency on Sophie’s part, which the defence claim, you would set it to one side. If you are satisfied it does establish such a tendency, you would consider it as a factor to be weighed in the balance in determining whether Sophie lunged at the accused with scissors on 9 January 2008, as Dr Weatherston described in evidence. It is only one item of evidence and you would need to consider all other relevant evidence in deciding whether you accept the evidence of the accused on this point.
[39]Y was a former boyfriend of Ms Elliott’s. He was accorded name suppression: R v Weatherston HC Christchurch CRI-2008-012-137, 24 June 2009.
We begin by observing that Mrs Ablett-Kerr expressed no concern about the propensity direction at trial.
Mr Lithgow submitted the first sentence of that paragraph is wrong, because propensity evidence “does not ... need to show a tendency[40] to any particular level”. The evidence is not “to be ruled out in some way if a threshold of ‘establishes’ is not achieved by the jury”.
[40] Mr Lithgow’s emphasis.
We do not accept Mr Lithgow’s submission. How Ms Elliott may have acted on another occasion with Y is, on the face of it, irrelevant to the issue of how she acted with Dr Weatherston on 9 January 2008. Evidence of what she did on the discrete occasion becomes admissible only if it “tends to show a ... propensity [on her part] to act in a particular way”.[41] The statute does not set out any standard of proof which must be met. The New Zealand courts have always shied away from specifying a standard of proof with respect to individual pieces of evidence.[42] Clearly, however, some word must be used to convey the concept that evidence should carry a certain weight before it is reliable enough to be taken into account. “Satisfied” and “not satisfied” are, as terms go, as good as we can probably get. Accordingly, if the jury were not satisfied that the discrete incident had occurred or were not satisfied that it tended to show the tendency submitted by the defence, then the evidence established nothing of relevance to step (1) of the questionnaire. The Judge’s summing-up was in all respects correct on those issues.
[41] Evidence Act, s 40(1).
[42]R v Puttick (1985) 1 CRNZ 644 (CA) at 647, Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
Mr Lithgow's second complaint concerned the final sentence of [62] of the summing-up. He submitted it created “some kind of threshold admissibility in relation to Clayton Weatherston's evidence by the shifting of concepts”. He submitted that the Judge should have said something to the following effect:
It is only one item of evidence and you would need to consider all other relevant evidence in deciding whether there is a reasonable possibility that Clayton Weatherston’s evidence on this point is correct.
We accept immediately that the Judge could have worded it in this way; indeed, it would have been an improvement. But the Judge’s mode of expression causes us no concern for the following reasons.
First, the real point of the sentence was to caution the jury against treating the propensity evidence as decisive. It did after all refer to a different boyfriend on a different date in different circumstances. Like all propensity evidence, it should be weighed in the balance along with all the other relevant evidence.
Secondly, step 1 of the questionnaire was completely clear that the jury had to find only “a reasonable possibility” that one of the specified acts had occurred before they were to proceed on to the remaining steps in the questionnaire and the possibility of provocation being established. The Judge was also clear in what she said orally about the onus and standard of proof. She left the jury in no doubt that it was for the Crown to exclude the reasonable possibility of provocation.
This ground of appeal fails.
Did the prosecutor by his conduct cause a miscarriage of justice?
Mr Lithgow, in his written submissions, suggested the trial had miscarried because of three things the prosecutor did. None of these matters was pursued with much vigour in his oral submissions. It was not suggested that any one of these matters would in itself have led to a miscarriage of justice. Instead it was argued that when considered together that threshold was passed.
We can deal with these three matters briefly. We do so in the order in which Mr Lithgow set them out in his written submissions.
Crown expert
The Crown had a psychiatric expert who was not called to give evidence. Mr Lithgow submitted “that the Crown should have disclosed their psychiatrist’s opinions following the completion of Clayton Weatherston’s evidence and either called him or made him available for the defence to call”.
There is nothing in this point. The Crown’s psychiatrist’s report was made available to the defence on the same day the Crown received it before trial. At no stage did Mrs Ablett-Kerr ask the Crown to call the psychiatrist or ask the Crown to make the psychiatrist available for the defence to call. This criticism is unfounded.
Cross-examination of the accused
We set out Mr Lithgow’s submission on this topic in full:
The accused’s personality disorder made him a sitting duck for vilification. As if his actions, with or without self-control, were not gross enough, he was denounced as a serial liar, controlling in relationships and dishonest in relationships. The cross-examination of the accused was a long denunciation. A major technique was the constant categorisation of matters of human perception as matters of truth or lies.
We have considered the prosecutor’s cross-examination. We do not accept it reveals misconduct on his part. As Mr Mander submitted, if the Crown was to contest the narrative of various events provided by Dr Weatherston in his examination-in-chief, it was obliged to put those matters to him.
In relation to many incidents, Dr Weatherston’s account differed from those provided by other witnesses or told to others by Ms Elliott. Given the Crown’s case was that Dr Weatherston had lied about the 9 January 2008 killing, it made sense for it to submit that he had also lied about other incidents. If that submission were to be made, then in fairness to the accused it had to be put to him. Whether the jury accepted his version of the other events or thought he was lying about them or considered the divergent accounts were simply the product of different perceptions was a matter for them.
Duty to put the case concerning the knife
Mr Lithgow submitted that the Crown did not put to Dr Weatherston that he went home and picked up the knife on his way from the university to the Elliott home. The first time this was raised, Mr Lithgow submitted, was in the Crown’s closing address. Mr Lithgow submitted that this was an egregious failure properly to put the Crown theory of the case.
We do not accept this submission. One of the potential difficulties with Dr Weatherston's provocation defence was how it was that he had a kitchen knife in his bag. Most of us, after all, do not carry knives with us. Dr Weatherston provided an explanation that he always carried a knife in his laptop bag. The Crown obviously could not disprove that explanation, but were fully entitled to challenge its truthfulness.
The Crown wanted to explore two other possibilities. One was that Dr Weatherston had put the knife in his bag that morning before he left home to go to the university and then on to the Elliotts’ home. The other possibility was that he had gone home to get the knife after going to university and before going on to the Elliotts’ home. From the Crown perspective, it did not particularly matter which of those scenarios had occurred. Either course would be consistent with a premeditated plan to kill Ms Elliott. Indeed, even if Dr Weatherston’s account as to why he had the knife was true, the Crown case, namely that Ms Elliott did nothing to provoke him, could still stand.
The prosecutor did put to Dr Weatherston the possibility that he had time “to pop up to [his] home and pick [the knife] up” after being at university and before going on to the Elliotts’. This proposition led to a lengthy exchange between the prosecutor and Dr Weatherston about how long it took to get from the university to his flat. The prosecutor was suggesting it would take only “five minutes”. Dr Weatherston said he did not know but in the end accepted it would not be long. The aerial map Mr Lithgow gave us (which was presumably in evidence) shows the distance to be small. In any event, Dr Weatherston did not accept he had gone home.
The prosecutor, in his final address, said it “was not out of the question” that Dr Weatherston had gone home at about midday to get the knife. He never presented it, however, as the Crown thesis of what happened. The Crown case was equally strong if he had brought the knife with him first thing in the morning and almost as strong if “it was standard practice to take the knife in the laptop bag”.
In short, therefore, the proposition was put. The prosecutor was entitled to submit as a possibility that Dr Weatherston might have got the knife later in the morning if he had not brought it with him first thing.
So far as we are aware, Mrs Ablett-Kerr raised no issue with this aspect of the Crown’s closing address. There is no reference to it in her own final address.
We do not consider this complaint is made out.
Conclusion
All these criticisms of the prosecutor’s conduct fail.
Should the photographs of Ms Elliott’s wounds have been admitted?
Mr Lithgow’s final point related to the photographs of Ms Elliott’s wounds. Mr Lithgow submitted that the jury should not have been subjected to “gruesome photographs unless absolutely necessary”. Computer graphics should have been used to illustrate wounds in a depersonalised way.
Mr Lithgow accepted this ground of complaint could receive little traction in this Court, given that another panel had dismissed an application for leave to appeal on the same ground pretrial.[43] He did not suggest that there had been any change of circumstances from the time the earlier panel delivered its decision. In other words, the trial unfolded, in terms of use of the photographs, just as had been anticipated. Nonetheless, Mr Lithgow submitted that “the time must come when the courts abandon the law student/medical student ‘harden up or get out’ attitude”.
[43] R v Weatherston [2009] NZCA 267.
We see no ground to depart from this Court’s earlier decision upholding Potter J’s ruling that the photographs were admissible. What is more, we agree with that earlier decision.
Result
All grounds of appeal having failed, we dismiss the appeal.
Postscript
We conclude with two observations. First, we wish to place on record our admiration for the way in which Potter J presided over this trial. It was a technically difficult trial, the burden of which was increased by the intense public and media interest in it. From our reading of the transcript, the rulings and the minutes, we consider the trial was conducted carefully and thoughtfully. We are satisfied Dr Weatherston received a fair trial.
Secondly, we wish to acknowledge the excellent representation Dr Weatherston received at trial from Mrs Ablett-Kerr and her junior counsel, Mr King. This was a very difficult trial for defence counsel. We are aware that some members of the public after the trial verbally attacked Mrs Ablett-Kerr, making the fundamental error of transferring dislike of the accused to dislike of his counsel. We regret that and want to acknowledge the professionalism of Dr Weatherston’s trial lawyers.
Solicitors:
McKinnon Aitken Martin, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
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