Wilson v The Queen

[2004] NZCA 50

IN THE COURT OF APPEAL OF NEW ZEALAND

CA429/03

THE QUEEN

v

MARSDEN MATENUI WILSON

Hearing:24 March 2004

Coram:Chambers J
Laurenson J
Randerson J

Appearances:  N Deobhakta for Appellant

B H Dickey and A Coster for Crown

Judgment:7 April 2004 

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

INTRODUCTION

[1]       The appellant has appealed against conviction following a finding of guilty by a jury in the District Court at Hamilton on 8 October 2003 on two charges, namely:

a)Injuring his wife with intent to injure (s189(2) of the Crimes Act 1961); and,

b)Without reasonable excuse acting in contravention of a protection order by physically abusing a protected person, namely his wife (ss19(1)(a) & 49(1)(a) Domestic Violence Act 1995).

The accused was later sentenced to imprisonment for 21 months by Judge Lee.

Background

[2]       The appellant was living apart from the complainant who was, at the relevant time, living with her daughter and her daughter’s partner, Mr Stevens. The appellant was apparently continuing to visit at the daughter’s home from time to time.

[3]       On 1 February 2003, the appellant had come to the home, and, when the other members of the house had gone to bed, he seriously assaulted his wife such that she had to be admitted to hospital with a head wound and a neck injury.

[4]       The daughter’s partner, Mr Stevens, heard the complainant calling out for help. He left the bedroom and found her in the backyard. She had big drops of blood on her tee-shirt. She was yelling and pointing across the road. Mr Stevens saw the accused over the back fence “walking through the train track”. He, Mr Stevens, jumped the fence, went over and grabbed the accused. He then brought him back to where the complainant was lying down in the garage.

[5]       Mr Stevens later said in evidence he had:

Q.You went straight over, you said you went to grab him talking about the accused. Why did you do that?

A.Oh, to bring him back to see what happened, bring him back to, you know, to talk it over, see what happened.

Q.At any stage that evening did Rachel tell you what happened to cause her to bleed?

A.Oh, yeah, she did, he, did say, yeah, “Hit me or something”, I think.

Q.I just need to be very clear about that. You said?

A.He did, he did hit her with something. That’s what she was saying I think.

Q.Did you say, “He hit her with something”?

A.       Yea, well that’s what she said.

[6]       Constable Davis came upon the scene shortly afterwards. He had been making a routine bail inquiry at the next-door flat. He was asked for help by the complainant’s daughter. He went to the complainant and tried to rouse her. After about a minute she woke up. The Constable later said in evidence he had:

Q.When you say she woke up, what did she do?

A.She regained consciousness, she just went to the sitting position, ah, and she immediately when I asked her, I said “What happened”, she immediately looked at the defendant who was sitting beside her and said “He hit me”.

Q.After she said that what happened then?

A.I asked the defendant if he had hit her. I did notice on the defendant he had blood on his hands and his face.

Q.Ask you to pause there for a moment. Before you asked him, did he say anything?

A.Um, I believe he just responded to my question “Did you hit her” and he said “No I didn’t, I was just trying to help her”.

[7]       The trial commenced at Hamilton on 8 October 2003. The complainant was the first witness called by the Crown. She confirmed to the trial Judge, Judge Lee, that she was still married to the accused and did not wish to testify. She was accordingly released from doing so by the Judge on the grounds of spousal immunity in giving evidence: s5(6) of the Evidence Act 1908.

[8]       Following this development, defence counsel made two separate applications. The first was to object to the evidence of Mr Stevens referred to in para 5 above. The second was in relation to the evidence of Constable Davis referred to para 6 above.

[9]       In each case, the Judge ruled that the evidence in question was admissible as an exception to the rule against hearsay, namely as a spontaneous exclamation of a victim of an offence made approximately contemporaneously with the offence and uttered in such circumstances that there was no possibility of concoction. The probative value of the evidence was very high and outweighed the prejudicial value.

[10]     The appellant now appeals against both those rulings.

The grounds of appeal

[11]     The grounds of appeal as these were originally stated were:

a)Spousal immunity is enshrined in statute and Her Honour the learned trial Judge in allowing res gestae statements has in effect precluded the defence from cross-examining the complainant.

b)The normal rules of res gestae should render admissible statements that otherwise would be inadmissible in the narrow constraints case law has allowed in precedent but not in a specific case where the intent of spousal immunity is compromised.

[12]     In the course of oral submissions presented by the appellant’s counsel, it became apparent that the essential ground of appeal was that the two statements in question were inadmissible because they were contrary to the spirit of s5(6) of the Evidence Act which states:

The spouse of a person charged with an offence shall be a competent but not compellable witness for the prosecution, and without the consent of the person charged, at every stage of the proceedings.

[13]     The appellant’s counsel accepted that both the disputed statements would have been admissible had the complainant, whose out of court statements were being reported by others, not been the spouse of the appellant and entitled to elect not to give evidence.

[14]     The sole issue to be determined was therefore, whether s5(6) should be interpreted so as to exclude the otherwise admissible evidence of the complainant in circumstances where she was a spouse who had elected not to give evidence.  

[15]     The appellant’s counsel accepted that there was no authority to support his proposition that s5(6) should be given an extended meaning. We agree that there is no such authority and indeed, that to say that there was, would be contrary, at least implicitly, to other Court of Appeal authorities.

[16]     It is contrary to R v Accused (CA 17/97) [1997] 14 CRNZ 565, the decision referred to by the trial Judge when ruling that evidence of statements made by a spouse who earlier decided not to give evidence, were admissible to prove the truth of those statements on the ground that they were approximately contemporaneous with the offence and were made by the spouse in such circumstances that there was no possibility of conviction. It is implicit from this decision that if s5(6) did have the extended meaning suggested by the appellant then the outcome would have been quite different.

[17]     Similarly it is also contrary at least implicitly, to R v L [1994] 2 NZLR 54 (CA) where the Court allowed the reading of a statement of the complainant who was the accused’s deceased wife notwithstanding, inter alia, that there was no opportunity to cross-examine the complainant.

[18]     Also relevant is R v Hamer (High Court, Rotorua, HC T020840, 5 June 2003) in which Chambers J held, at para [13], that s5(6) should be confined to the situation of a spouse himself or herself giving evidence in court.  The argument now presented by the appellant in this case was not presented in the appeal from Hamer which is reported in [2003] 3 NZLR 575.

[19]     We do not consider that this is an appropriate time to extend the influence of s5(6) when the Law Commission has recommended the abolition of spousal compellability: see Evidence, NZLC R55, 1999.

[20]     In short, the answer to the issue raised in this case is that s5(6) does not operate to render inadmissible evidence that would admittedly otherwise be admissible. The subsection was properly applied by Judge Lee. She did not compel the complainant to give evidence and the election not to give evidence had been made. That was the full extent of the protection that the subsection accords. It has no role beyond that which was afforded to it in this case.

Result

[21]     For the above reasons this appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland