R v B (CA325/04) [2004] NZCA 410 (25 November 2004)

Last Updated: 2 December 2018

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA325/04 CA327/04

THE QUEEN

v

B (CA325/04) A (CA327/04)

Hearing: 26 October 2004
Court: O’Regan, John Hansen and Goddard JJ Counsel: N J Sainsbury for Appellant B
L C Ord for Appellant A G J Burston for Crown

Judgment: 25 November 2004

JUDGMENT OF COURT

We grant leave to appeal to both appellants and allow their appeals. We rule that the evidence relating to events that occurred in the interview room at the Wellington Police Station is inadmissable at the appellants’ trial.

R V B (CA325/04) And Anor CA CA325/04 [25 November 2004]

REASONS

(Given by John Hansen J)


[1] These are applications for leave to appeal against pre-trial rulings given by Judge Mackintosh on 12 August 2003. Both appellants, who are police constables, face trial on charges of assault in contravention of s196 of the Crimes Act 1961.

[2] A is charged with assaulting a 17 year old youth, X, on 20 October in Brooklyn. B is charged with assaulting the same youth in a police car a short time later. They both elected trial by jury and were committed to the District Court at Wellington. B has already been tried summarily in relation to an alleged assault of X in an interview room at the Wellington Police Station.

[3] On their trial on the assault charge both appellants seek exclusion of the evidence relating to the interview room incident. In the alternative A seeks severance.

Background facts

[4] In the early hours of 26 October 2003 X, along with his cousin, allegedly broke into a vehicle owned by an off duty police constable, Constable L. Constable L hearing the noise of the break-in approached the vehicle. By this time he had put on his police motorcycle helmet which gave him radio contact with police control. He observed two people in the vehicle one of whom he tried to detain. Ultimately, both escaped but a number of police vehicles and personnel arrived in the area. These included the appellants.

[5] It appears that the two appellants apprehended X in Ohiro Road and eventually Constable L arrived and identified him as one of the persons who had broken into his car.

[6] X makes serious allegations against both appellants arising from events over the next two hours. The appellants formed the belief that X had disposed of a bag
stolen from the vehicle somewhere in the vicinity. They wanted X to show them where the bag was.

[7] X alleges that A questioned him about his movements and during that questioning he called him “a lying nigger”. He said that A punched him with a closed fist in quick succession, first on the right side of his face and then in his stomach. He further said that while a police dog handler, who had arrived at the scene, was tracking where the youth had fled from the car, A on several occasions threatened him that if he did not hurry up and tell the truth the dog would be set upon him. The last occasion this was done was when the police dog was tracking along the street towards them and could be clearly seen. X, fearing the dog may be set upon him, gave the appellants some information about the bag he was being questioned about. As a consequence of that information the appellants and X went to an area in Todman Street to search for the bag. When this proved unsuccessful X was placed in the back of the police car.

[8] A was driving the vehicle and X says that he was again called “a lying nigger” by A. When he turned to look out the window he alleges B punched him once in the stomach with a closed fist which winded him.

[9] Back at the station B was responsible for processing and interviewing X. X was given the opportunity to speak to a lawyer and rang a Mr Jefferis and spoke to him over the telephone. X queried with that lawyer whether or not the police were allowed to beat him up.

[10] B then conducted a video interview with X. Throughout the interview X advised B he wished to consult a lawyer. Notwithstanding this, B continued to ask questions and X responded by saying he preferred to discuss how the police officers had beaten him up. After several allegations of this nature, B terminated the video interview telling X he was lying.

[11] X then alleges that B walked to where he was sitting, grabbed him with both hands around his neck and threw him to the ground. He landed on the floor. On the floor he rolled into a foetal position. He said he was scared something would happen
to him on the ground and that after he landed he did not really know what went on until he was being taken to the cells. He had no recollection of who had picked him up and how long it was after he had hit the ground.

[12] Senior Sergeant L gave evidence that on the night in question he was the supervising sergeant for the strategic response group. He said he went to the first floor interview rooms in connection with another matter and looked through the peephole expecting to see one of his staff interviewing a robbery suspect. However, he observed B and X. He was also able to hear the interview conducted by B. He heard X complaining of being assaulted by B and said that B’s demeanour over the allegation was one of annoyance. He said at this stage B turned the video off, approached X and shoved him on the left side of his head with his open hand. It was delivered with such force that it was sufficient to move the youth several metres. The Sergeant said the right hand struck the middle of the left side of the face of the youth. As a result of this the youth fell to his right hand side and onto the floor. He said because of the angle while looking through the peephole he could no longer see what was occurring. He turned away to see if there was anyone in the Sergeant’s office who was in charge of B and as he did this he heard the impact of a person being kicked. He described a deep thud, the sound of wind escaping and the cry of a person in pain.

[13] He decided to enter the room and as he reached for the door handle he heard another kick. As he entered the room he said B was standing with his foot in a recoil position having either just completed a kick or about to make another one. He said B looked stunned at his presence. He assisted X to his feet and instructed B to take him to the cells.

[14] There appears to be some conflict between the evidence of X and the Sergeant.

Charges

[15] As a result of this alleged series of events, the two appellants face a number of charges. Firstly, as noted above, they face assault charges from the incidents in
Brooklyn and in the police car. B was also charged with injuring with reckless disregard for the safety of another, and an alternative Crimes Act assault relating to the interview room incident. Initially, although the charges carried the right to elect trial by jury and were not purely indictable, it was assumed they would be heard together. When B first appeared before the Court he elected trial on those charges. However, at the commencement of the preliminary hearing on 29 April 2004 B vacated that election and was remanded to a status hearing on 29 June 2004. On that day the injuring with reckless disregard charge was amended to a charge of injuring with intent to injure, and that, along with a lesser alternative assault charge, was heard by Judge Lovegrove in the summary jurisdiction of the District Court at a hearing commencing 13 September 2004. On 17 November Judge Lovegrove found that the evidence established that B had committed the lesser offence of assault with intent to injure.

[16] On 25 March 2004 informations were also laid against A under the Summary Offences Act in relation to him allegedly addressing offensive words to X and with threatening to injure with intent to intimidate. These charges arose from his reference to X as “a lying nigger” and his threat to turn the police dog onto X. Those matters are yet to be set down for hearing in the summary jurisdiction of the District Court.

The District Court decision

[17] Both appellants objected to the Crown adducing evidence of the alleged assault in the interview room at the Wellington police station at their trial on the Crimes Act assault relating to Brooklyn and the police car. As an alternative to the exclusion of this evidence A sought severance.

[18] The learned District Court Judge accepted the Crown’s submission that the interview room incident was part of the res gestae and therefore all of the evidence in relation to it was admissible against B at the trial on the police car assault. The Judge noted that despite the rules against the admission of hearsay, prior consistent statements and the exclusionary aspect of the similar fact evidence rules, the res gestae doctrine provided the means of admitting, in certain circumstances, evidence
which would otherwise be inadmissible if the statements or evidence can be seen as one part of a relevant and continuing transaction. The Judge was satisfied that the sequence of events from the time of the first alleged assault of X by A on the street in Brooklyn through to, and including, the assault in the interview room, was a connected series of events. She found that it was important to assess the evidence and credibility issues by looking at the evidence as a whole and to exclude what happened in the interview room would be artificial.

[19] She found that both accused embarked upon a course of unlawful conduct commencing with A’s initial assaults and threats and progressing through to the assault in the interview room. She considered all that behaviour could well provide an explanation for X’s ultimate failure to complain at the police station. She said that it would be important for the jury to consider X’s behaviour in the full context of what happened between 3.30 am and 5.33 am and found that all of the evidence objected to, including the videotaped interview, was part of the res gestae.

[20] She considered the evidence against B was highly probative and there was no illegitimate prejudice to him. She said the prejudicial effect did not outweigh its probative value insofar as B was concerned.

[21] The Judge also refused severance of trials, finding that it would not be conducive to the ends of justice in this case to grant the application. She was satisfied there was a sufficient relationship between the two Constables because it was A’s unlawful conduct that appears to have set the tone for the conduct embarked upon resulting in B also offending against X. She accepted it was clear that what happened in the interview room at the police station was only admissible against B but any prejudice to A could be covered by a simple direction to the jury.

Submissions

[22] On behalf of B, Mr Sainsbury submitted three propositions. Firstly, the allegation of the assault that occurred in the interview room was based on similar fact evidence that should be ruled inadmissible in the context of the trial of the Brooklyn and police car incidents. Secondly, the complaints made by X in the
course of his video interview about being assaulted earlier in the morning, amount to inadmissible prior consistent statements. Thirdly, both the allegation of an assault in the interview room and the complaints of earlier assault occurring in the video interview do not form part of the res gestae and thus cannot render the inadmissible evidence admissible under the inclusionary rule.

[23] However, he accepted in argument that the main thrust of his submissions was directed to the res gestae point. It was his submission that there was a clear break, both temporal and spatial, before the incidents that occurred in Brooklyn and in the police car and those that occurred after the arrival at the police station.

[24] He distinguished R v Karetai [1988] NZCA 129; (1988) 3 CRNZ 564 (CA) relied on by the District Court Judge. In that case, a victim was found badly beaten in a hotel toilet. Karetai had been seen to go into the toilet at some stage but the evidence against him was purely circumstantial. The Crown sought to adduce evidence of Karetai’s behaviour in the bar leading up to the finding of the victim in the toilet. This behaviour involved several minor acts of violence against other patrons and forcing the victim to buy him drinks. Mr Sainsbury accepted that had the events in this case been reversed there would be some similarity with Karetai. But in his submission the sequence of events in this case clearly distinguishes it from Karetai. He submitted that this case was different because there was no logical build up of events that leads to the alleged offending.

[25] He also submitted that at the stage of the interview X had exercised his right to speak to a lawyer and to reflect on his position, having by then been identified by the car owner in Brooklyn. He was aware he was going to have to face an interview and somehow had to explain himself. He was away from the roadside pressure. Mr Sainsbury submitted the importance of the video to the Crown was simply to show consistency and it does not add anything but prejudicial weight. The evidence of this latter assault simply went to propensity. He further submitted that there was clear prejudice from the video because the jury would be beguiled by it and not focus on the central issues.
[26] He distinguished the cases such as R v Ahamat CA143/00 19 June 2000 and R v M CA31/04 5 April 2004 relied on by the Crown. Both of those cases involved victims of alleged sexual offending telephoning an accused and recording, with police knowledge, the conversation. He said a situation where a complainant is confronting an accused is quite different from what occurred in this case, and further, in those cases, what the accused said amounted to an inculpatory statement. He said that can be contrasted with this case where there is an alleged offender with a stark motive to fabricate his evidence and that puts the complainant’s video statement in a completely different category from such phone calls. He submitted the content of the video was simply exculpatory.

[27] Finally, Mr Sainsbury submitted that the trial Judge would have significant difficulty in appropriately directing the jury as to the use they could make of the evidence of the interview room incident, and the video statement, in relation to B.

[28] For A, Ms Ord submitted that there were clearly two separate incidents involved on the night in question and in the latter one A played no part. She readily accepted that the evidence of what occurred in the police car was properly admissible but once they had returned to the police station the situation changed. She pointed out that B was the arresting officer and was responsible for the processing and interviewing of X. She submitted the complaints against A were quite unrelated in place, time and circumstances. She submitted, correctly, that if he had been tried alone none of the evidence relating to the interview room incident would be admissible against him. She said the evidence would be highly prejudicial and, no matter how strong a direction the trial Judge gave, that the evidence was not relevant to A, it is inevitable that a jury would be swayed by it. She also pointed out that if the evidence of the interview room incident was relitigated it would double the length of the trial. The summary hearing took four days and she said, inevitably, all those matters would have to be revisited if the evidence was admissible on the assault charges. She submitted that the evidence for the latter incident should be admissible or, if it were admitted at the trial of B, then there should be severance for A so that the jury at his trial did not hear that evidence.
[29] She said that while the District Court Judge had found that there was an interconnected series of events in this case, that must only refer to B. She said it could not possibly apply to A.

[30] In relation to A, Mr Burston submitted there should not be severance of trials. He said if it does occur it will mean the complainant will have given the evidence at his own trial, at the summary trial of B, on two separate trials on the assault charge and in the summary charges against A. He said that the Court is entitled to balance the public interest in the fair and efficient despatch of Court business against the legitimate interest of the accused (R v Wilson (1996) 14 CRNZ 471). He submitted that any prejudice to A could be met by a simple direction from the trial Judge that the jury were to ignore the interview room evidence when they were considering the charge against A.

[31] In relation to B, he said that at the summary trial B gave evidence accepting that he pushed X to the floor which he realised was wrong and could offer no satisfactory explanation for his behaviour. Mr Burston submitted it is clear from the series of events, coupled with the video interview, that B was frustrated by the way X acted and lost control. He said that if B was to give evidence at trial, the Crown would be entitled to cross-examine him on his evidence at the summary trial and this highlights the relevance and probative value of the interview room evidence to the assault charges.

[32] Mr Burston submitted that the videotaped interview was analogous to the cases of Ahamat and M referred to above. He said the tape should be admitted because of the probative value arising from the accused’s reaction to being confronted with the allegations by X.

[33] He further submitted that the Judge was right in determining that the interview room incident formed part of the res gestae. He said what occurred to X over the two and a half hours he was in B’s custody was one episode, or connected series of events, which it would be artificial to exclude from the jury’s considerations. The Crown’s claim is that the Constable’s action in denying X his rights, assaulting him in the interview room and staying with him until he signed the
charge sheet which recorded no complaint, was part of his behaviour pattern, and that of A, during the whole two and a half hour period. He said furthermore, it goes to the motive of the police car assault; ie frustration at the failure of X to co-operate in the investigation into the breaking and entering of B’s friend’s car. Mr Burston submitted the jury would gain an incomplete picture of events that occurred between X and B on the night in question if the interview room events are excluded.

[34] Furthermore, he said the matter can be dealt with by a suitable direction from the trial Judge as to what use the jury could make of the interview room evidence.

Discussion

[35] Although it was conceded in submissions that the primary thrust of the appeal by B related to the res gestae argument we consider it is necessary to consider the other two propositions advanced on behalf of B.

[36] The first is that the assault that occurred in the interview room is not admissible as similar fact evidence.

[37] As this Court said in R v Holtz [2002] NZCA 323; [2003] 1 NZLR 667 at 675 the preferable approach to the consideration of similar fact evidence in a particular case is that which determines and weighs probative value and potential prejudice in the circumstances.

[38] In this case it is clear that the prejudicial effect of the evidence of the interview room incident will be high. We do not consider the probative value is as high as contended for by the Crown. That is because of the change in circumstances at the time of the latter incident. It is clear from the transcript of the video interview that X caused annoyance to B by refusing to co-operate in the interview process. X was entitled to do this by his many references to not wishing to continue without having his lawyer present. After an exchange of that sort the video interview continued as follows:

2. And after that um, we con ... continued to talk ... and you told me that you had a bag and that was what the strap was from. It was a

‘Jim Beam’ bag and you dropped it over the, over a fence when you were running down the road, do you remember that?

10. Yep. But did you guys, talk about how you guys called me a ‘fucken nigger’.

B I don’t ... didn’t do that ... X You ...

B ... so ...

X ... you and the officer that beat me up in the car ... B No, well I don’t recall that.

10. Yeah, see, you don’t recall that ... that’s because its on video, that’s why you don’t recall that.

B What we’re discussing here, is you breaking into the car tonight ... X But what I’m discussing, is you beating me up in the car ... in the

Police car and your officer over there, I, I identify his face, he beat me up too, in the car. You guys gave me no warning, you gave me nothing. You just told me I’m a fucken nigger, I’m a lying fucken nigger and you guys, you guys beat me up in the car.

2. If you going to, start to make up stories like that to ... for whatever reason ...

X No.

B ... there’s no point in doing a video interview ...

X Yeah, there’s no reason to make up stories like that because it’s not made up. That’s why there’s no reason to make up stories like that, I’m telling the truth, that’s the truth and its recorded on video, it’s the truth. And you and that Constable, in front of me and my lawyer

...

2. M, just listen to me ... if you want to carry on and make up stories for the video ... we’ll stop the interview now ... okay?

X Do you guys ... do you guys practice for that ... B If you want to discuss ...

X Do you guys practice for that?

2. ... if you want to discuss how you broke into the car tonight, we’ll carry on doing the interview ...

X Do you guys practice making up lies – not beating me up. B We’ll stop the interview here.

X No, I’m, I’m saying ... don’t stop the interview, just listen. Do, do, do you honestly say you ... you didn’t beat me up in the car? Did you not punch me and wind me in the car?

B If you’re going to continue to make up stories, we’ll stop the interview and that will be it, okay?

X Mmm, (turns towards screen and shrugs), yeah, see ..., that’s, that’s the way ay?

[39] From the transcript it appears that X, notwithstanding X’s youthfulness, effectively turned the tables on B. Leaving aside discrepancies in what is said by X as to where A allegedly assaulted him, it is apparent he managed to get into a short section of the video interview all of his complaints that now give rise to the charges faced by A, and the remaining charges faced by B.

[40] While it is always a question of degree, and this case is finely balanced, we are not satisfied that the probative force is sufficiently great to make it just to admit this evidence. As Mr Sainsbury submitted, X had the opportunity to take legal advice and to consider the predicament in which he found himself relating to breaking and entering Constable L’s vehicle. At best the evidence goes to propensity, and there is insufficient connection between the circumstances of the interview room incident to support the allegations of the earlier incident. There is some probative weight in the manner in which it could be said to support the credibility of the complainant, but that must be the limit of its probative value (see R v Bull CA 313/03 17 November 2003).

[41] In Bull at [11] this Court said:

[11] ... The probative force of similar fact evidence in these circumstances is not as direct proof, in the sense that if the accused has behaved in a certain way on another occasion, he must have done so on the occasion now under consideration. That approach, from which the jury should be guarded, involves at least the difficulty of where and how the jury starts in its consideration of the facts. Rather the probative force of the similar fact evidence lies in the support which it gives to the credibility of the instant complainant because of the unlikelihood, absent collaboration, that the relevant specifics of that complainant's allegations have been manufactured when the accused is said or can be shown to have behaved in that specific way on another occasion. In considering these issues it does not much matter whether one speaks in terms of mere propensity not being enough, whereas specific propensity is enough, or uses other terminology.

That is of less importance than demonstrating a clear appreciation of the permissible reasoning process and bringing it home to the jury.

[42] As already noted, in this case the similar fact evidence relied on relates to events which happened after the alleged offending for which B awaits trial. We are of the view that any unlawful conduct in the interview room does not establish motive or reasons for the alleged initial assaults. In our view it arose from frustration occurring from the course of the interview itself.

[43] Being satisfied that the prejudicial effect of the evidence outweighs its probative force we consider the evidence is inadmissible as similar fact evidence.

[44] We are also satisfied that the video interview amounts to an inadmissible prior consistent statement.

[45] The Crown relies on R v M and R v Ahamat which are both cases dealing with victims of alleged sexual abuse confronting the person said to be the abuser on the telephone. In both cases it is possible to infer from the transcript of the conversations inculpatory statements by the accused persons.

[46] The situation is quite different here as quite clearly the only statements from B in the passage above are exculpatory. In our view the matter would not be admissible on this basis as well.

[47] This Court in R v Karetai adopted the following definition of res gestae:

Part of the facts surrounding or accompanying a transaction which is a subject of legal proceedings; or of facts so connected with the fact in issue as to introduce it, explain its nature, or form in connection with it one continuous connection.

[48] In one sense it could be said the difficulties that have arisen have been occasioned by B’s successful application to have the interview room offences dealt with in the summary jurisdiction of the District Court. However, we accept Mr Sainsbury’s submission that this was a right guaranteed to B in law.
[49] While there is strength in the Crown’s submissions, we are not satisfied that the interview room incident forms part of the res gestae. We consider that there is a significant break in the sequence of events occasioned by the arrival at the police station, the processing and X’s telephone call to his lawyer. This case may be distinguished from cases such as Karetai where there was, as Mr Sainsbury submitted, an escalating series of events towards the matter that is finally before the Court. In this case, the Crown are seeking to use the end result to bolster their case relating to earlier behaviour.

[50] The District Court Judge relied on the actions of A as the starting point. She found that this gave rise to the tone and attitude that led to B’s alleged offending. Yet there is no direct evidence that A and B were acting in concert as the Judge appears to have found.

[51] Undoubtedly, a straightforward direction could be given to the jury in relation to A. However, we consider that the trial Judge would be confronted with real difficulty in satisfactorily directing the jury as to the way in which it could use the interview room evidence against B in relation to the alleged earlier assault. This became apparent in argument. When Mr Burston sought to outline such a direction, the complexities and layers involved became apparent.

[52] Mr Burston’s complaint that B may seek to portray himself as an upright officer who would not assault a 17 year old youth can readily be dealt with at trial. If such is put forward on behalf of the defence, an application can be made to the Judge to either cross-examine B on what occurred at the earlier trial, or alternatively, to call such evidence in rebuttal. In our view, that meets the Crown’s concerns. Similarly, if B suggests at trial that X could have complained on the night in question rebuttal evidence should again be permitted.

[53] We accept that it is not essential to approach such evidence in a strictly chronological manner. Indeed the authorities speak of surrounding circumstances being sufficient. But as noted above, we consider there is a sufficient break in the sequence of events to say that what occurred in the interview room cannot properly
be described as surrounding facts, or facts accompanying the transaction, which give rise to the assault counts now faced by B.

[54] We are also satisfied that the prejudicial effect of the interview room evidence would outweigh its probative effect. The focus of the trial will be the events that occurred in Brooklyn and in the police vehicle. It is apparent from what happened at the summary trial that the relitigation of those events, will at the very least, equate in time to the evidence relating relevantly to the charges faced by the appellants. Notwithstanding a strong direction being given by a trial Judge, we consider that there is a significant chance that the jury would be distracted from their task by that evidence. It is clear that the evidence will be significantly prejudicial to B and in our view would outweigh its probative effect. It would also be prejudicial to A, and a direction to the jury to ignore the evidence in relation to A may not overcome that potential prejudice. A and B ought properly to be tried on these counts together.

[55] A combination of the break in space and time between the relevant incident and the fact the prejudicial effect of the evidence outweighs its probative force means we are satisfied that the evidence is inadmissible under the res gestae rule.

[56] Leave to appeal is granted, the appeals allowed and the evidence ruled inadmissible. It is unnecessary to deal with appeal against the order declining severance because, in the circumstances, it no longer remains a live issue.

Solicitors:

Fanselows, Wellington for Appellant B

Sladden Cochrane & Co, Wellington for Appellant A Crown Solicitors, Wellington