Mulligan v R [2013] NZCA 651 (13 December 2013)

Last Updated: 12 February 2014

_{IN THE COURT OF APPEAL OF NEW ZEALAND}

CA457/2011 [2013] NZCA 651

BETWEEN DEAN RICHARD MULLIGAN Appellant

AND THE QUEEN Respondent

Hearing: 20 November 2013

Court: Randerson, Heath and Asher JJ Counsel: J C Hannam for Appellant

A Markham for Respondent

Judgment: 13 December 2013 at 2:00 pm

_{JUDGMENT OF THE COURT}

A Leave to admit further evidence on appeal is refused.

_{B The appeal against conviction is dismissed.}

REASONS OF THE COURT

_{(Given by Randerson J)}

Introduction

[1] The appellant was convicted after jury trial of the murder of Marice McGregor, which occurred on 19 April 2010. He was later sentenced by the trial Judge, Clifford J, to life imprisonment with a minimum term of 15 years.¹ He now appeals against conviction on the sole ground that further evidence

_{demonstrates that a miscarriage of justice has occurred.}

¹ _{R v Mulligan HC Whanganui CRI-2010-083-1242, 1 July 2011.}

MULLIGAN v R CA457/2011 [2013] NZCA 651 [13 December 2013]

[2] The appellant seeks leave to introduce further evidence in the form of two affidavits. The first is from himself and the second is from a consultant psychiatrist, Dr N R Judson. The essence of the appellant’s evidence is that he was constrained from giving a full account of his relationship with the deceased through fear of reprisal from two men whom he named in his evidence at trial. The appellant gave evidence that one of these men (whom he named as Phil Morrison) had committed the murder. He, the appellant, had been present at the murder scene but had not taken part in Ms McGregor’s death. The appellant named the second man as Max Twedale. He said Mr Twedale had been sexually abusing him over a lengthy period of time, apparently in order to force him into a sexual relationship with Ms McGregor.

[3] In his affidavit, the appellant gives an account of various drug-related pick- ups and deliveries he alleges he undertook with Ms McGregor at the behest of Mr Morrison and Mr Twedale. This evidence was not before the jury.

[4] The effect of Dr Judson’s evidence is that the appellant is a person of chronically low self-esteem and poor inter-personal coping skills. He has a history of post-traumatic stress disorder resulting from childhood sexual abuse. Someone with this background would be particularly vulnerable to intimidation, manipulation and exploitation and be less able than the average person to act in an assertive manner to deal with a threatening situation. This could go some way to explaining why he did not give a fuller account than he did at trial. Since trial, his self-esteem had improved and he now felt he was in a comparatively safe environment.

[5] The Crown opposes the admission of both affidavits on the grounds that they do not meet the requirements for the admission of fresh evidence and that the evidence could not reasonably have affected the verdict.

Background

[6] Ms McGregor met the appellant in 2008 through an online dating site. They formed a sexual relationship. Ms McGregor saw a future in their relationship. She told friends and family the appellant was her boyfriend and they were going to get married. Between 2008 and 2010, she loaned or gave the appellant substantial sums

of money. She also drafted a will naming the appellant as the principal beneficiary. The appellant was aware of this.

[7] In March 2010, Ms McGregor discovered that the appellant was already married and living with his wife. She told the pastor of the appellant’s local church that she was the appellant’s girlfriend. The pastor confronted the appellant about this.

[8] On 19 April 2010, Ms McGregor went missing. Her car was located near a forest area to the north of Whanganui. Her body was discovered on 12 May some distance further north lying in a creek bed. She had died as a result of head injuries occasioned by a blow to the back of the head, and a further blow to the left side of her face.

[9] The Crown case was that the appellant committed the murder by hitting her over the head with a metal bar. It was said that the appellant had strong motives for killing Ms McGregor. First, his double life was being exposed to his wife. Second, Ms McGregor was asking for her money back. Third, the appellant believed he would inherit her house and other assets. He had given five different accounts to the police of his actions and was, in the Crown’s view, a purposeful and deliberate liar. In the fourth version of events given to the police, the appellant had confessed to the murder. His confession was supported by other evidence.

[10] The defence case was that he had met Ms McGregor in the area where she was killed. He saw her meet with Mr Morrison and it was he who had killed Ms McGregor. Mr Twedale was also present in the area but had not taken part in the assault. Afterwards, Mr Twedale had anally raped the appellant and threatened the appellant if he disclosed what he had seen.

[11] Both counsel agreed the evidence against the appellant was overwhelming. The evidence included:

The strong evidence of motive.

Text messages showing that Ms McGregor was planning to meet the appellant at the rural location where her car was discovered on the day she went missing.

Witnesses had seen Ms McGregor and the appellant in the same area a few days earlier.

Not long before the appellant’s arranged meeting with Ms McGregor, searches had been performed on his computer seeking information about what would happen if someone was hit hard on the back of the head.

Ms McGregor’s body was discovered in a location well known to the

appellant.

The appellant had possession of Ms McGregor’s cell phone and some

of her keys after her death.

The appellant’s admission in his fourth statement to the police of hitting Ms McGregor on the head with a metal bar as well as the provision of information only likely to be known by her killer.

Admissions made by the appellant in a letter to his wife and in conversation with a stranger he encountered in Fielding.

[12] As the Judge noted at sentencing, the appellant’s account that he was forced

to make a confession to the police and his version of events was rejected by the jury.

Fresh evidence - principles

[13] There is no dispute as to the relevant principles for reception of fresh evidence on appeal under s 389(c) of the Crimes Act 1961. In Fairburn v R² the majority of the Supreme Court confirmed the principles stated by this Court in R v

_Bain³ _{and later approved by the Privy Council in that case.}⁴

² _{Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].}

³ _{R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27].}

⁴ Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].

[14] For present purposes, it is sufficient to cite [22] of this Court’s decision in

Bain:

[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is (a) sufficiently fresh, and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[15] If the further evidence qualifies for admission, the question is:

[24] ... whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.

[16] In the Privy Council’s recent decision in Lundy v R the Board held that the proper test to be applied by an appellate court in deciding whether a verdict is unsafe or a miscarriage of justice has occurred is whether the evidence might reasonably have led to an acquittal.⁵

The appellant’s submissions

[17] In advancing the appeal, Mr Hannam accepted that the further evidence was not fresh since it was clearly known to the appellant but was not advanced at trial. On the basis of Mr Hannam’s advice from the Bar, we are prepared to accept that the appellant’s trial counsel (not Mr Hannam) was unaware of the further evidence that it is now sought to adduce. It follows that the failure to refer to this evidence was not a

_{tactical decision made by trial counsel. Mr Hannam’s submission was that the}

⁵ Lundy v R [2013] UKPC 28 at [150].

appellant’s failure to give the evidence was reasonably explained by Dr Judson’s

evidence which we have summarised above.

[18] Mr Hannam further submitted that the appellant’s affidavit presented Ms McGregor as a person who was involved in an underworld of suspicious deliveries connected to illegal drug manufacture. If the further material had been before the jury they would have had a fuller account of the relationship between Ms McGregor and the appellant and the effect of the threats from Mr Morrison and Mr Twedale. This led to the reasonable possibility that the jury would have accepted there was more to Mr Twedale’s assault on the appellant at the scene of the murder. Instead, the jury would have heard that the assault was part of a pattern of controlling behaviour from Mr Twedale which he used to manipulate the appellant.

Discussion

[19] We are satisfied that the further evidence does not qualify for admission on appeal. We accept Ms Markham’s submission on behalf of the Crown that the version of events set out by the appellant in his affidavit was, in substance, before the jury. The only additional evidence that might be regarded as fresh is the appellant’s account of the various drug related pick-ups and deliveries. Although this evidence was not led at trial, the appellant did assert that Ms McGregor was involved in cannabis cultivation. There was no evidence (other than from the appellant) that Ms McGregor was involved with cannabis or any other drug.

[20] We accept the Crown’s submission that the appellant’s alleged psychological vulnerability does not explain why he was able to give the jury a graphic account of the involvement of Messrs Twedale and Morrison in acts of anal rape, genital torture and murder while at the same time being unable to speak of their involvement in the activity of transporting drugs. It is simply implausible that the appellant was able to give the evidence he did at trial (which he described in detail), yet was unable to give the further evidence of the drug deliveries.

[21] Moreover, the appellant’s account of the involvement of Mr Morrison and Mr Twedale has no credibility. Despite the appellant naming and describing these two men, police inquiries through their databases and other sources failed to reveal

anyone of the name “Max Twedale” and only two “Phil Morrisons” within the age range given by the appellant. Only one of the “Phil Morrisons” was Maori as described by the appellant. He lived in Wellington and was interviewed by the officer in charge of the inquiry. There was no evidence to suggest that the Phil Morrison located was involved in the events at issue.

[22] The appellant asserted at trial that he had been anally raped on a number of occasions by Mr Twedale and that both men had threatened to harm him and his family if he disclosed their involvement in Ms McGregor’s death. Given that this material was before the jury and the overwhelming strength of the Crown case, we are satisfied that there is no reasonable possibility that the jury might have acquitted the appellant if the further evidence in relation to drug deliveries had been before them. Simply put, the appellant is merely endeavouring to elaborate upon the account he gave at trial, which account was rejected by the jury.

Result

[23] We are satisfied that the further evidence is not admissible on appeal and that there is no basis to conclude that a miscarriage of justice may have occurred even if the further evidence were admitted.

[24] In consequence:

(a) Leave to admit further evidence on appeal is refused. (b) The appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent