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IN THE SUPREME COURT OF NEW ZEALAND
SC 28/2009 [2009] NZSC 121
AARON MARK WI
v
THE QUEEN
Hearing:18 August 2009
Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:G J King and C J Milnes for Appellant J C Pike and N P Chisnall for Crown
Judgment:27 November 2009
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
REASONS
(Given by Tipping J)
Introduction
[1] The issue in this appeal concerns the admissibility of evidence that a defendant, in a criminal trial, has no, or no relevant, previous convictions. In Kant the Court of Appeal held “tentatively” that such evidence was inadmissible.[1] This was because it did not qualify either as veracity or propensity evidence under the Evidence Act 2006 and was, in any event, irrelevant on the basis that it was “generally neutral”,[2] as had been held by the earlier decision of the Court of Appeal in Falealili.[3] The trial Judge in the present case therefore excluded evidence that the appellant, Mr Wi, had no previous convictions for violence.[4] On Mr Wi’s appeal to the Court of Appeal, following his convictions for wounding with intent to cause grievous bodily harm and assault with intent to injure, the Court of Appeal understandably elected to follow Kant and therefore dismissed Mr Wi’s appeal. This further appeal is therefore effectively from the decision of the Court of Appeal in Kant.
The decision in Kant
[1] [2008] NZCA 194 at para [41] (Chambers, Randerson and Winkelmann JJ).
[4]He did have one previous conviction for driving with excess breath alcohol.
[2] The Court in Kant recognised that it was common practice, prior to the commencement of the Act, for defence counsel to elicit from an appropriate police officer giving evidence for the Crown that the accused had no previous convictions, if that was the case. The question in Kant was whether evidence of this kind remained admissible under the Act and, if so, on what basis. The Court observed that one of the leading decisions on the purposes for which good character evidence was relevant prior to the Act, was the decision of the Full Bench of the Court of Appeal in Falealili. In that case the Court, following decisions in England and Australia, held that an accused’s good character could be relevant both to credibility and to likelihood of guilt. In passages of some length, which it is nevertheless desirable to set out, the majority of the Falealili Court expressed their views in the following way:[5]
Historically, an accused has long been able to adduce evidence of good character. It is now accepted that its relevance may be to both the credibility of the accused and whether it is unlikely that he or she committed the offence charged. In many cases those two “limbs” as they have been described are in reality two facets of the same thing,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Wi v R [2009] NZSC 121
Case
[2009] NZSC 121
Decision Date
CaseChat Overview and Summary
The case of Wi v R involves the admissibility of evidence regarding the defendant's lack of previous convictions. The Supreme Court of New Zealand dismissed the appeal brought by Mr Wi, who was convicted of wounding with intent to cause grievous bodily harm and assault with intent to injure. The Court of Appeal had previously dismissed Mr Wi's appeal, following the decision in Kant, which held that evidence of a defendant's lack of previous convictions was inadmissible. The Supreme Court, however, found that such evidence should be admissible under the Evidence Act 2006 as propensity evidence.
The court concluded that evidence of a defendant's lack of previous convictions is both propensity evidence and relevant propensity evidence, as it tends to show a lack of propensity to commit the offence charged. This conclusion was supported by examining the history of the Act and the common law background against which the Act was passed. The court also held that evidence of lack of previous convictions does not need to be substantially helpful to be admitted as veracity evidence, and it is not unfairly prejudicial to the prosecution.
As for jury directions, the Supreme Court held that it is not mandatory for the trial judge to give a specific direction as to the relevance of evidence of lack of previous convictions. However, the court noted that the trial judge may still provide appropriate directions on the subject if considered appropriate. The court ultimately dismissed the appeal, finding that the absence of the inadmissible evidence did not affect the verdict in this case.