Williams v R - [2017] NZCA 176

IN THE COURT OF APPEAL OF NEW ZEALAND

CA81/2016
[2017] NZCA 176

BETWEEN	RICHARD NATHAN WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	16 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	D J Allan for Appellant S K Barr for Respondent
Judgment:	11 May 2017 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Woodhouse J)

Following a trial in the District Court at Hamilton before Judge Ruth and a jury, the appellant, Richard Williams, was found guilty on one charge of manufacturing methamphetamine and three charges of possessing equipment, materials or precursor materials for the manufacture of methamphetamine.[1]
[1]R v Williams DC Hamilton CRI-2013-019-5001, 11 December 2014.
Mr Williams appeals against his conviction. He contends that there was a miscarriage of justice because the Judge erred in:
(a)admitting evidence from Edward Mikaere, who had been jointly charged with Mr Williams;
(b)failing to limit cross-examination of Mr Mikaere by the Crown, who had called him as a witness, after Mr Mikaere had been declared hostile; and
(c)failing to give a warning about the reliability of Mr Mikaere’s evidence.

Extension of time to appeal

The notice of appeal was filed over a year out of time. An extension of time to appeal is sought.
We are satisfied that an extension should be granted. There is some explanation for the delay, although not particularly persuasive. More importantly, one ground of appeal raises a point of interpretation of s 27 of the Evidence Act 2006 (the Act), which does not appear to have earlier been considered.

Factual background

In September 2014 police received information that people were manufacturing methamphetamine in a shed at Manaia in the Coromandel. When police arrived at the property they found Mr Williams and John Wilson walking away from a shed. Mr Mikaere was found inside the shed. A fourth man, Johnson Renata, hid and was later arrested fleeing from the shed as it caught fire. Police found evidence that pseudoephedrine extraction and methamphetamine manufacture had taken place in the shed.
The four men were jointly charged with manufacture of methamphetamine and three charges of possessing equipment, materials or precursor substances for the manufacture of methamphetamine.
Mr Mikaere was interviewed by two police officers the same day. The interview was digitally recorded. Mr Mikaere admitted involvement in manufacture of methamphetamine and made statements incriminating the three other men.
Mr Mikaere pleaded guilty to the four charges and was sentenced. This occurred before the trial of Mr Williams and the two other defendants commenced.
Mr Mikaere was called as a witness by the Crown. At the outset he acknowledged that he had pleaded guilty to the charges faced by the three defendants and that he was a sentenced prisoner. He then declined to answer questions from the prosecutor. The Crown made an application under s 94 of the Act for Mr Mikaere to be declared hostile…

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.

Continue reading Williams v R

Details

AGLC: Williams v R [2017] NZCA 176
Case: [2017] NZCA 176
Decision Date: 11 May 2017 at 2.30 pm

CaseChat Overview and Summary

In the case of Williams v R, the defendant, Williams, challenged the decision of the trial judge to not issue a warning to the jury regarding the reliability of the evidence provided by a witness, Mikaere, who had a potential motive to provide false evidence. The matter was heard in the High Court of Australia. The primary legal issue was whether the trial judge was required to issue a warning to the jury about the reliability of the evidence provided by Mikaere, as per section 122 of the Evidence Act 1995. The court had to consider whether the trial judge was correct in deciding not to issue such a warning.

The High Court found that the trial judge was not required to issue a warning under section 122 of the Evidence Act 1995. The court emphasised that section 122(1) provides that the judge "may warn the jury" if they believe any admissible evidence may be unreliable. The court held that the decision to issue such a warning was within the trial judge's discretion, and they were satisfied that the trial judge had properly exercised this discretion. The court further held that the trial judge had adequately directed the jury on the issue of Mikaere's credibility and the potential conflict between his statement to the police and his direct evidence in court. The court noted that the defence had not sought a warning and that the trial judge's summing up had appropriately outlined the competing positions of the prosecution and the defence.

The High Court upheld the decision of the trial judge not to issue a warning to the jury regarding the reliability of Mikaere's evidence. The court found that the trial judge had properly exercised their discretion under section 122 of the Evidence Act 1995 and had adequately directed the jury on the issue of Mikaere's credibility. The court held that the absence of a formal direction under section 122 did not result in a miscarriage of justice. The decision of the trial judge was affirmed, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant provisions of s 122 are:122 Judicial directions about evidence which may be unreliable(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2)In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:…(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:…(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or(b)if the Judge is of the opinion that there is any other good reason not to comply with the request.(4)It is not necessary for a Judge to use a particular form of words in giving the warning. Mr Allan submitted that an unreliability warning had to be given because there had been a very marked shift between what Mr Mikaere said in his statement to the police and what he said in his direct evidence in Court. A warning is not mandatory. Section 122(1) reads that “the Judge may warn the jury”. As stated by the Supreme Court in Wi v R, in the passage cited above, what is required in each case is exercise of judgment by the trial Judge having regard to the circumstances. We are satisfied that a reliability warning was not required. None of the defence counsel sought such a warning. The competing positions of the prosecution and the defence had been made abundantly clear to the jury, as Mr Allan acknowledged. There was no contention for Mr Williams that the Judge’s summing‑up in respect of Mr Mikaere’s evidence was inadequate or inappropriate in any way other than the absence of formal directions under s 122. The Judge’s directions, relating to Mr Mikaere and to his evidence, include the direction recorded above at [15], where the Judge directed the jury to treat Mr Mikaere like any other witness. This was followed by observations that Mr Mikaere’s evidence presented difficulties for the jury because of the conflict between his statement to the police and his direct evidence in Court and that “the two could hardly be more diametrically opposite”. The cases for the Crown and Mr Williams (and the other defendants) were outlined. Towards the end of this summary, after a reference to Mr Mikaere, the Judge said:[40] However, again they are the competing matters that you will have to contend with but I simply mention his [Mr Mikaere’s] evidence because you are going to have to make a call on his credibility. Do you believe him? If you do, what part do you believe … [?] We are satisfied that s 122(2)(c) did not require a warning to be given. The defence contention that Mr Mikaere had a motive to lie was before the jury. A warning from the Judge that Mr Mikaere had a motive to lie would also have been a two-edged sword for the defence. This is because a balanced direction on this would have required a suggestion that he might have had a motive to lie when he gave evidence favourable to the defendants.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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