THE QUEEN v ROBERT CRAIG WATSON [2003] NZCA 51 (18 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA395/02

THE QUEEN

v

ROBERT CRAIG WATSON

Hearing: 10 March 2003

Coram: Glazebrook J

Hammond J

O'Regan J

Appearances: D C Ruth for Appellant

J C Pike for Crown

Judgment: 18 March 2003

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]	The appellant, Mr Watson, is charged along with another accused, Mr Spicer, with aggravated robbery and aggravated burglary.The charges result from an incident which occurred on 2 February 2002 when two men wearing balaclavas entered the flat of Graham O’Brien and stole cash and morphine sulphate tablets.Mr O’Brien had the morphine sulphate tablets as treatment for cancer from which he was then suffering.He gave a statement to the police and evidence at the depositions hearing but has since died.
[2]	It is alleged that Mr Watson was one of those who entered Mr O’Brien’s flat, in the company of a Mr Healey who pleaded guilty to the charges resulting from the incident.Mr Healey has also died.
[3]	The Crown applied to the District Court for an order under s 344A of the Crimes Act 1961 to the effect that the depositions evidence of Mr O’Brien is admissible at the trial of Mr Watson.The Judge ordered that the depositions evidence was admissible and Mr Watson seeks leave to appeal to this Court against that ruling.

Facts

[4]	Mr O’Brien suffered from cancer and had recently had an operation and was taking morphine sulphate tablets for pain relief.On 2 February 2002 he met Mr Spicer while out shopping and Mr Spicer helped him carry his groceries home.Mr Spicer said he would catch up later in the day.Mr O’Brien said in his statement that he had told Mr Spicer earlier that he was taking medication for cancer and he may have mentioned it was morphine.
[5]	Soon after Mr Spicer left Mr O’Brien answered a knock on the door of his flat.Mr O’Brien said there were two men wearing balaclavas and both carried weapons.He said they forcibly entered his house, and one made reference to the fact that Mr O’Brien was a nark, and then indicated they wanted the morphine.Money was taken from Mr O’Brien’s wallet and morphine sulphate tablets were also taken.Mr O’Brien resisted, there was a struggle and Mr O’Brien was then tied up.One of the men dropped a weapon, and the men looked for it and retrieved it.The men then left.However, they were apprehended by passers by outside the flat.
[6]	When interviewed by the police, Mr Watson said he had gone to Mr O’Brien’s house but had done so only to talk to him “about narking and tampering with kids”.He said he had told Mr O’Brien he did not want his drugs.He said he wore a balaclava to disguise himself because he was not long out of prison.Although he was found with a weapon, a chisel with a taped handle, he said he had not entered Mr O’Brien’s flat with this weapon.

Mr O’Brien’s statement

[7]	Mr O’Brien gave evidence at the deposition hearing and was cross-examined, but only briefly for the usual tactical reasons.He gave evidence of the events outlined above, describing the two men only in general terms because they had been wearing balaclavas.He said that one was a little taller than the other, but did not identify them.In general his evidence was consistent with the version of events he had given in the statement he made to police immediately after the incident, although there were some minor inconsistencies.
[8]	Counsel for Mr Watson, Mr Ruth, highlighted these inconsistencies:
a)	In his deposition statement Mr O’Brien said that when he opened the door one of the men had an item which looked like a chisel and the other had a knife.In his police statement he said one was holding a large knife or screwdriver looking object, the other had something as well;
b)	In cross-examination at the deposition hearing, Mr O’Brien said that the taller of the two men did most of the talking.He was asked whether he was able to see what it was the shorter person did, and he answered that he thought the shorter person was in the background.In his police statement he said one held a knife-like object to his throat while the other went through his drawers and found his wallet;
c)	In his deposition evidence he said that when he opened the door the comment was made that he had narked on one of their friends, they knew he had just got out of hospital, that he had stitches, and they wanted his morphine.In the cross-examination at the depositions hearing he accepted he had not mentioned the fact they knew he had been in hospital and had stitches in his police statement.He accepted that was the case and may have been a slip up on his part.In his police statement he referred to one saying they were there because he had narked on one of their mates, and that one of them then said “We want your morphine”.
[9]	In his statement to the police, Mr Watson said he went to Mr O’Brien’s house with no knife or chisel, that he was wearing a balaclava and gloves only because he had just got out of prison and did not want Mr O’Brien identifying him to the police, and that he went only for the purpose of warning Mr O’Brien about tampering with kids and narking on people.He said he had no intention of committing any robbery.His counsel suggested that the fact he was found with the chisel could be explained by his having found it during the search for the lost weapon in Mr O’Brien’s flat.

Legal Principles

[10]

There was no dispute about the legal principles to be applied.Section 184 of the Summary Proceedings Act 1957 permits deposition evidence to be read as evidence at a trial where the deponent has died.Section 3 of the Evidence Amendment Act (No.2) 1980 also allows a deposition statement to be admissible as evidence in certain circumstances, subject to a discretion provided in s 18 of the same Act, to reject the statement if its prejudicial effect outweighs its probative value or if the Court is otherwise satisfied it is not necessary or expedient in the interests of justice to admit the statement.

[11]

The decision of this Court in R v L [1994] 2 NZLR 54 sets out the principles which must be applied in the exercise of the discretion as to whether to exclude evidence which satisfies the statutory criteria in s 184 Summary Proceedings Act and s 3 Evidence Amendment Act.The District Court Judge correctly summarised those of the criteria which were relevant to the present case.In particular, he noted that there is a broad discretion to exclude evidence of this kind exercised in the interests of justice, that the interests of justice criterion require a balancing of the interests of all parties involved, including the interest of the general public in the quest for truth and the conviction of offenders.However, the focus of the District Court decision and the argument in this Court was on the inability of counsel for Mr Watson to cross-examine Mr O’Brien, and on the prejudice which this would give rise to.

Cross-examination

[12]	Mr Ruth acknowledged that there had been some cross-examination at the deposition hearing, but said that it was brief for the normal tactical reasons which we accept.He said if Mr O’Brien had been able to give evidence, counsel for Mr Watson could have cross-examined him as follows:
a)	Mr Watson’s statement to the police that he had gone to Mr O’Brien’s house only to warn him about tampering with children and narking, and that he had said to Mr O’Brien he did not want Mr O’Brien’s pills, could have been put to Mr O’Brien.Mr Ruth accepted that Mr O’Brien would not have been able to comment on Mr Watson’s intentions.Mr Watson’s version of what was said at the door is substantially different from what Mr O’Brien recounted in both his police statement and his deposition.Mr O’Brien’s version, that the morphine sulphate pills were demanded, is consistent with what subsequently transpired.There is therefore little reason to believe that cross-examination on this point would have led to any concession by Mr O’Brien;
b)	Counsel could have questioned Mr O’Brien about his recall of the actions of the taller and shorter of the two men who entered his flat.Mr Ruth said that Mr Watson’s defence depends on his establishing that he was the shorter of the two men who entered the house.However, he accepted that, as Mr O’Brien was unable to identify either of the men, it was unlikely he could assist in establishing that Mr Watson was the shorter of the two.Accordingly, the inability to cross-examine Mr O’Brien on this point is also of little practical significance.
c)	Mr Ruth said greater detail would have been obtained about the respective actions of the taller and the shorter men.Mr Ruth focused on the statement made by Mr O’Brien at the deposition hearing that the smaller man was in the background, and said this could have been expanded on in cross-examination to support Mr Watson’s contention that he was the shorter man, and that he did not take an active role.However, this line of questioning would have faced some formidable barriers, because of Mr O’Brien’s evidence suggesting that both men had an active involvement, that both were wearing balaclavas and the evidence that Mr Watson had the chisel in his possession when he was apprehended.These factors would have been a major obstacle to Mr Watson’s defence that he was not at least a party to the offending.
[13]	As is clear from R v L, the right to cross-examine is important, but it is not absolute.As this Court said in that case, a Court considering an application under s 184 must consider the practical implications for the accused of not having the advantage of cross-examination at the trial.If the deposition evidence appears to be inherently reliable and no other evidence casts doubt on its trustworthiness, a Court can conclude that cross-examination would not have made any difference.
[14]	In this case there is no substantial issue as to the credibility of Mr O’Brien.The account he gave of the incident at the depositions hearing was broadly consistent with the account he gave to the police.While Mr Ruth highlighted some differences, we are satisfied they are not of such significance that they call into question Mr O’Brien’s credibility.Mr O’Brien’s account is also consistent with the other evidence, particularly of the witnesses who apprehended the offenders after the incident took place.
[15]	Mr Ruth was not able to convince us there was any significant practical detriment to Mr Watson from the loss of the advantage of cross-examination of Mr O’Brien.The proposed defence requires a jury to accept as a reasonable possibility a version of events which is markedly different from that recounted by Mr O’Brien in his deposition and police statements.While Mr Watson will not have the opportunity of putting his alternative version to Mr O’Brien, there is no reason to believe that Mr O’Brien would adopt it and depart from his earlier statements if cross-examination occurred.
[16]	Accordingly, we are satisfied that the District Court Judge was correct in his assessment of the cross-examination factor.
[17]	In view of that conclusion, we are satisfied that the interests of justice, including the public interest in the quest for truth in the conviction of offenders, favours the admission of this evidence.We grant leave to appeal, and dismiss the appeal.

Solicitors:

Crown Law Office, Wellington