JACK TAIHEKE WYLLIE v THE QUEEN [2001] NZCA 119 (5 April 2001)

IN THE court of appeal of new zealand

ca470/00 CA75/01

JACK TAIHEKE WYLLIE

V

THE QUEEN

SELWYN HEREWINI WAMOANA

V

THE QUEEN

Hearing:	29 March 2001
Coram:	McGrath J Ellis J McGechan J
Appearances:	D M Madsen for Wyllie A J S Snell for Wamoana S P France for Respondent
Judgment:	5 April 2001

judgment of THE COURT DELIVERED BY mcGECHAN J

The Appeals

[1] These are two appeals heard together against conviction in the District Court at Napier of wounding with intent to cause grievous bodily harm.The two Appellants were jointly charged with one Maynard Wickliffe who has not appealed.

Background Facts

[2] Wyllie, Wamoana and Wickliffe were inmates in Hawkes Bay Regional Prison. So also was the victim, who we will term "K".

[3] On 28 November 1999 there was an altercation in the course of which K was stabbed in the side, apparently with a chisel or scissors.

[4] The only issue at trial was identification of those involved in the stabbing.K, and an eye witness T, gave evidence implicating Wyllie, Wamoana and Wickliffe.There was some evidence of admissions by Wamoana in conversations overheard by prison officers.All three made statements to a Detective Mason denying involvement in the stabbing.

[5] On 8 December 1999 Wickliffe went further.On the evidence of Detective Mason he made an "off the record" statement implicating Wyllie as the instigator, Wamoana as the offender who carried out the stabbing, exculpating himself as no more than a bystander, and stating he had been placed under pressure.The precise circumstances of the making of that statement, and its more detailed content, will be developed further in due course.

[6] The matter went to trial commencing 20 November 2000 with the three separately represented.The Crown theory of the case was in terms of the "off the record" statement by Wickliffe, i.e. Wyllie was the instigator, Wamoana carried out the stabbing, with Wickliffe an (involved) assistant.The exact roles played by each were not, however, important.All were advanced as parties.

[7] The Crown, while leading from Detective Mason the three statements made to him under regular circumstances did not lead or refer to the "off the record" statement by Wickliffe.

[8] Both Wyllie and Wamoana called alibi evidence from other prisoners who were prepared to state they were off the scene of the stabbing.

[9] Counsel for Wickliffe (named last in the indictment) then announced he would not call evidence.To the general surprise of the courtroom, including his own counsel, Wickliffe himself stood up and wanted to be heard.A brief adjournment was taken.A Chambers conference followed.Counsel for Wickliffe informed the Judge Wickliffe "wished to give evidence in order to confess sole responsibility for the crime with which all three were charged".The Judge gathered this was against counsel's advice.It was contrary to the line taken to that point.

[10] Matters resumed in court at 12.25 p.m. with Wickliffe called and affirmed. The following was the totality of his evidence in chief:

"Mr Wickliffe, do you have something you want to say to the jury.....Yes.Your Honour, the jury, I'd just like to apologise for wasting your fellas time and I admit I'm guilty of stabbing [K]."

[11] Counsel for Wyllie and Wamoana knew of the existence of a job sheet by Detective Mason recording, after the event, the "off the record" statements by Wickliffe on 8 December 1999.An expurgated copy had been obtained on disclosure.

[12] Counsel for Wyllie elected to cross-examine Wickliffe.The cross-examination elicited a more detailed account, according to Wickliffe, of the events concerned.In particular it elicited evidence that Wickliffe had become annoyed at K due to an incident earlier in the morning, was in possession of some stolen scissors, approached K backed up by another individual (clearly not Wyllie or Wamoana), stabbed K, and threw the scissors away.He placed Wyllie elsewhere, probably in the carving room.It also elicited evidence from Wickliffe that he had not been pressured into saying he was the person who stabbed K.Counsel also elicited the following:

"You've previously said to Detective Mason in a chat with him that you were pressured to become involved in it....is that a written statement or is that his statement?I'm wondering if you, I'm asking you if you chatted with him and told him that......No."

[13] Counsel for Wamoana asked only four questions, eliciting that Wamoana was not with Wickliffe, was not involved in any way in the stabbing, was not the second man with Wickliffe, and did not see Wamoana at any stage.

[14] Counsel for the Crown chose to cross-examine in light of Wickliffe's attempted extenuation of Wyllie and Wamoana.A number of areas were covered, including possible pressure upon Wickliffe from Mongrel Mob prisoners (it being asserted that Wyllie was a mobster), pressure from inmates generally, the scissors, absence of any previous history of violence, and Wickliffe's unnamed associate.

[15] Crown counsel then zeroed in upon the "off the record" statement.It was put to Wickliffe that on 8 December he had asked to see Detective Mason who had an "off the record" discussion.Wickliffe denied it.The Detective's Job Sheet was put to Wickliffe.He admitted having seen it before, but persisted with the answer the discussion had not occurred, and the contents were untrue. In particular, Wickliffe stated, he did not mention anything about Wyllie and Wamoana.When asked why he had not made the disclosure earlier, he claimed he thought he would "get off the charge" because Crown witnesses would not appear.

[16] There was no re-examination, and were no questions from the Bench.The Defence closed.

[17] The Crown then sought leave to recall Detective Mason to give evidence of the fact and content of the off the record statement.The Crown argued such evidence was not previously available for the Crown to lead.Counsel for Wyllie and Wamoana opposed.The Judge ruled as follows:

"The Crown applies to lead rebuttal evidence.[Counsel for Crown] says in effect that such evidence was not previously available for the Crown to lead.

If, in the course of this trial, at an earlier time, such an application had been made, then a balancing of the considerations of prejudicial effect and probative value would have been undertaken.This Court would have ruled against the Crown on such an application.But in this trial, matters have changed around somewhat, if not very significantly.

The accused Wickliffe has made an unexpected confession of his involvement which the Crown submits, and in circumstances I agree it seems to be an attempt to absolve the others from responsibility.In the course of that confession in Court, Wickliffe has denied making an off record statement to Detective Mason. Otherwise, I am told, and indeed in the course of a Chambers hearing earlier today, evidence of such a statement was recorded in a job sheet prepared by Detective Mason.The question now squarely before the Court is whether such interview took place and what was said.

Cross examination from Mr Madsen on behalf of Wyllie sought clearly to positively reinforce the position that Wickliffe alone was responsible.At this time, when I balance those same considerations of prejudicial effect and probative value, the balance it seems to me changes somewhat.

The integrity of Detective Mason's evidence, by implication if not directly, is squarely put in issue.

In granting the Crown's application, I am conscious that I have a responsibility to ensure that the Jury is properly directed to disregard as evidence against the other two accused what was said in that earlier statement by Wickliffe.Because Mr Wamoana's situation may be affected by this order that I now make, leave is reserved to him to call such further evidence he should wish to."

[18] Late that afternoon the Crown recalled Detective Mason.He gave evidence of a request from Wickliffe to speak to him, and his doing so "on the understanding from Mr Wickliffe that he wished to speak to me on an off the record basis and that was not for general publication at that time".No cautions or Bill of Rights advice were given.No notes were taken during the conversation.The Detective completed, predictably, a Job Sheet upon his return to the police station which formed the basis of the oral evidence then given.The Detective deposed Wickliffe said that after an argument between Wyllie and K, Wyllie had directed Wickliffe to fight K.Wyllie had refused, but after some pressure he approached K to fight.K had refused.Wickliffe had informed Wyllie.He then heard Wyllie discussing stabbing K with Wamoana.He heard Wamoana say he Wamoana would do it, and Wyllie again directed Wickliffe to accompany Wamoana and assist him. Wyllie had walked in front to the position where K was sitting, with Wamoana approaching from the right-hand side.Wickliffe walked some five steps behind the pair.Wickliffe was aware Wamoana had something up his sleeve, believed to be scissors.Wickliffe saw Wamoana move that item into a position in his hand where it could be used for stabbing, and draw his arm back. Wickliffe claimed to have veered off at that stage and walked over to a telephone to remove himself from the situation.While at the telephone K came up upon him and they began fighting.Wickliffe said he had wanted nothing to do with it, and was under pressure from the Mongrel Mob.

[19] Limited cross-examination of Detective Mason by counsel for Wyllie followed.There was no other questioning.

[20] Counsel for Wamoana did not seek to call further evidence under leave reserved.

[21] The following day counsel addressed, the Judge summed up, and the jury retired.Counsel for Wyllie and Wamoana persisted with the alibi defence. There is no criticism of the summing up.The Judge gave the standard direction that statements by co-accused Wickliffe were not admissible as evidence against Wyllie and Wamoana.All three accused were convicted.It appears from a jury question that the jury may have considered Wickliffe's position on a party basis, rather than as principal offender, but that of course cannot be known with certainty.

Appellants' Submissions

[22] Counsel for Wyllie and Wamoana took a common approach.It was argued (i) the "off the record" statement was not admissible at all, given its "off the record" character.To the extent the matter was one of discretion, R v Moresi(No. 2) [1996] 14 CRNZ 322 being cited, fairness dictated the statement not be admitted.Emphasis was placed on the asserted clarity of the promise, the absence of caution or Bill of Rights advice, and the absence of notes.Wickliffe, it was said, would have no reason to believe it would be used against him.The integrity of Detective Mason's evidence was not in issue.(ii) If admissible the "off the record" statement was conceded to fall within s10 Evidence Act 1908 as a prior inconsistent statement.(iii) It should not however have been put to the witness under s10 as prejudice outweighed probative value.The Crown manufactured the ability to do so as a tactic.It could have called the Detective merely to say there had indeed been an off the record discussion, and its (unspecified) content differed.

[23] The Crown submitted (i) admissibility of the off the record statement was a matter of discretion, turning upon fairness, citing The Queen v H and J, 14 July 1997, CA171/97, CA173/97.Wyllie and Wamoana had not been made "off the record" promises, and were without standing to complain.The presumption against admissibility was reduced where use was merely for impeachment, as opposed to adduction in evidence.(ii) The prior inconsistent statement by Wickliffe could be put to Wickliffe under s10, and then proven by Detective Mason in view of Wickliffe's denial.(iii) prejudice did not outweigh probative value.The evidence given by Wickliffe, tending to exonerate Wyllie and Wamoana, was open to credibility challenges.In more general oral development of submissions, counsel for the Crown (who was not counsel at trial) stated that if Wickliffe's evidence in chief had not been taken further by the accused in cross-examination, the Crown would not have sought to lead the "off the record" statement.(Counsel inclined to the view the Crown could have done so, but would not have seen it as appropriate). However, with counsel for Wyllie and Wamoana having through cross-examination of Wickliffe developed and adopted his extenuating evidence as their own, it was proper on a fairness basis for the Crown to have done so.The Crown accepted, of course, that the off the record statement by Wickliffe was not in itself evidence against co-accused Wyllie and Wamoana, serving merely to impeach Wickliffe's testimony extenuating the pair.Counsel for the Crown submitted prejudice considerations could be adequately covered by the appropriate trial directions as given.The alternative course open to the Judge was to discharge Wyllie and Wamoana, ordering a new trial for the pair.

Decision

[24] Three points are involved (i) the admissibility or otherwise of the "off the record" statement, given its character as such, and given the fairness criterion (ii) applicability of s10 Evidence Act 1908 (iii) further fairness considerations, particularly the question of prejudice outweighing probative value in relation to Wyllie and Wamoana.

[25] The Judge's decision does not address matters quite in those terms.We are not necessarily critical in that regard.His Honour faced a difficult situation in which an immediate ruling was required, and it is far from clear he had the benefit of organised argument on all the issues, or reference to "off the record" authorities.

[26] His Honour treated the matter as one of an application to lead rebuttal evidence, and as largely turning upon evaluation of prejudice against probative value.There is also a somewhat opaque reference to the integrity of the Detective's evidence being put squarely in issue.

[27] This was more than a mere rebuttal matter.There was more involved than a commonplace balancing of prejudice and probative value.The question of allowing in an off the record statement raised more general fairness issues, with public policy having some bearing.Further, it was a situation in which the Crown sought to impeach, and not to prove in direct fashion.The reference to the integrity of Detective Mason's evidence is puzzling.There had been no challenge to that point to the Detective's evidence.Nor had he given evidence in relation to the off the record statement.That was yet to come.

[28] The decision whether to allow the off the record statement to be put was a discretionary one, and the usual constraints on appeal apply.However, we are not at all satisfied the Judge turned his mind to the correct issues.To the contrary, His Honour appears to have operated on a basis which was too limited. The Court can and should revisit the exercise of discretion.

[29] There is no absolute barrier to an off the record statement later being led in evidence, let alone used to impeach evidence as occurred in this case. As The Queen v H and J supra makes plain, the question in the end is one of fairness.That is always an intensely fact dependent criterion. Precedents must be considered with a close eye to their own facts.

[30] Research has not revealed any case in which an "off the record" statement has been advanced to impeach evidence given by the accused concerned, with the statement then proved in rebuttal evidence.The usual situation is an attempt to lead such "off the record" statements as part of the initial Crown case. Despite the novelty of the situation, there is no reason to suppose any different principle should apply.It remains a question of fairness.

[31] We are satisfied that as a matter of overall fairness the "off the record" character of the statement in the particular circumstances of this case should not be treated as a barrier to its use by the Crown.(The related issue of prejudice and probative value is considered subsequently).

[32] As a preliminary, the agreement to an "off the record" discussion contained a reservation: contents were not for general publication "at that time".Detective Mason was not cross-examined as to the meaning of that reservation.It is somewhat opaque, but clearly enough the "off the record" character was not entirely absolute.

[33] More substantially, we do not consider an agreement of this character must remain sacrosanct when the accused concerned unpredictably gives evidence himself which is contradictory on central issues.It would have been surprising if the issue had been raised in December 1999 and police still agreed to evidence remaining "off the record" even in those extreme circumstances.It does not offend community standards to regard a new development of that character as outside the terms of the earlier understanding reached, and as unrestrained.That must particularly be so where there may be room for concern as to possible perjury.There are public policy aspects to the limits which should be recognised.

[34] There is also some difficulty over standing.The agreement Wickliffe's statement would be "off the record" was made between the Detective and Wickliffe, not between the Detective and Wyllie/Wamoana.Where the criterion is overall fairness, a wider concept than parties to agreements can apply and that is not necessarily decisive.However, it weakens Appellants' case.It is rather harder to complain of unfairness through breach of agreement when the agreement is with someone else.

[35] The absence of caution or Bill of Rights advice goes against allowing in the "off the record" statement, but those considerations have rather less weight where, as here, the statement is not used to prove guilt of its maker but merely to impeach his evidence in its bearing upon others, ironically in the same breath tending to weaken his own admission of guilt.

[36] We do not regard the Crown application as a manufactured tactical ploy. Wickliffe had given unexpected evidence exonerating Wyllie and Wamoana.The Crown lead an off the record inconsistent statement which would at the very least damage Wickliffe's credibility.The fact of making a statement had been put to and denied by Wickliffe.It was orthodox and proper for the Crown to seek to respond by evidence of its existence and inconsistent content.

[37] We do not accept the Crown fairly could be asked to put up Detective Mason simply to say "off the record" statements had been made and were "inconsistent".That could leave an impression Wickliffe had previously denied involvement, as accorded with earlier evidence, leaving the involvement of Wyllie and Wamoana up in the air.The Crown was entitled to have Wickliffe's previous implication of Wyllie and Wamoana included in the inconsistency.

[38] The Judge is not to be criticised for not discharging Wyllie and Wamoana, continuing the trial only against Wickliffe.No application was made to His Honour for that extreme step.

[39] There can be no doubt that s10 applies to allow the "off the record" discussion, (if not barred by its off the record character) to beput as a prior inconsistent statement in the usual way.That, indeed, was not really in contest.

[40] The remaining and difficult issue is whether in the particular circumstances of this case the prejudicial effect upon Wyllie and Wamoana outweighed probative value.Certainly, there was a possibility of considerable prejudice.The essence of Wyllie's and Wamoana's defences was alibi: they were not there.This "off the record" statement placed them on the scene, and as principal participants.It was not, of course, admissible evidence against them in those terms, and an appropriate direction was given.There must be real concerns, however, whether in this case directions that the "off the record" statement was not admissible against them would be sufficiently effective.The "off the record" evidence had come in at the very end of the trial, in dramatic circumstances, and would have been vividly in the mind of the jurors.Influence, even if only unconscious, is distinctly possible. Probative value in relation to Wyllie and Wamoana was non existent, except indirectly through discrediting Wickliffe and with that his attempted exoneration of the others.It was of course probative and equally prejudicial in relation to Wickliffe himself.

[41] An important aspect in the balance is the Crown submission that defence counsel brought the matter on themselves by adopting Wickliffe's evidence through cross-examination.That has force, but that cross-examination is to be seen in the trial context at the time.There were some real risks to Wyllie and Wamoana, required to cross-examine if at all before the Crown, in leaving Wickliffe's unvarnished statements saying nothing as to their presence or absence.The Crown might well make a point of his perhaps surprising omission to say anything specific about their whereabouts or non involvement.It was a matter of professional judgment at the time, but we do not find it surprising counsel for Wyllie considered the safer option was to obtain clarification. With that done, the die was cast so far as Wamoana's position was concerned, and it is hardly surprising four carefully crafted questions followed.It is more surprising that counsel for Wyllie referred indirectly to the "off the record" statement, but perhaps it was an attempt to defuse in advance Crown suggestions (which indeed followed) that Wickliffe's evidence was the result of mob pressure.

[42] The decision to cross-examine was an acceptable exercise of professional judgment.It cannot be described as ill-advised, daring, or purely provocative.

[43] However, Wickliffe's evidence and Wyllie's and Wamoana's cross-examination upon it are a fact, and it is necessary to look at the total forensic picture which resulted.

[44] The Crown theory of the case was that Wamoana and Wyllie were active parties, with Wickliffe playing a lesser supporting role.The Crown now faced direct evidence from Wickliffe that Wyllie and Wamoana were not involved at all, and Wickliffe was the stabber.That evidence in chief from Wickliffe had been reinforced to that effect by cross-examination by Wyllie and Wickliffe. While no doubt happy to a degree that Wickliffe had so implicated himself, the Crown had a strong and legitimate interest in discrediting Wickliffe's concurrent exoneration of Wyllie and Wamoana.

[45] In that regard, the Crown had the previous inconsistent statement, "off the record", by Wickliffe.It was to a directly contrary effect.It would, given that the evidence from the Detective was likely to be accepted, severely damage Wickliffe's credibility and with that his evidence as to non involvement by Wyllie and Wamoana.While not in law directly probative, indirectly this impeachment of Wickliffe would have an important effect on the overall evidential balance which had arisen.

[46] As noted, it is likely there would be a significant residual prejudicial effect even after appropriate directions.However, we are not prepared to say that residual prejudicial effect so outweighed the likewise considerable indirect "probative" consequences through impeaching Wickliffe as to warrant exclusion.It is not of course the mere existence of a prejudicial effect which points to exclusion.All Crown evidence, and all exercises by the Crown in impeachment of witnesses, are intended to be prejudicial.It is the balance of prejudicial effect and probative value, in this case through impeachment of a defence witness, which is the relevant consideration.Prejudicial effect must be disproportionate.We are not satisfied that was so in the particular circumstances.

[47] Put more broadly, given the way the question of allowing in the "off the record" statement had developed, not least the prior knowledge by counsel for Wyllie and Wamoana of the off the record statement, its possible risks, and their adoption of Wickliffe's evidence, it was not unfair of the Crown to act as it did.

[48] The appeals are dismissed.

Solicitors

Gifford Devine & Partners, Hastings, for Wyllie

Bannister & von Dadelszen, Hastings, for Wamoana

Crown Solicitor's Office, Wellington, for Respondent