Williams v R [2017] NZCA 329 (1 August 2017)

Last Updated: 9 August 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA313/2015 [2017] NZCA 329
BETWEEN	KELVIN JOHN WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	7 June 2017 (further submissions received from appellant 22 June 2017)
Court:	Harrison, Winkelmann and Brown JJ
Counsel:	A J Bamford for Appellant J C Pike QC for Respondent
Judgment:	1 August 2017 at 11.00 am

JUDGMENT OF THE COURT

1. The application to adduce fresh evidence on appeal is declined.
2. The appeal is allowed.

100. The conviction for murder is quashed.

4. A conviction for manslaughter is substituted for the murder conviction.
5. The sentence of life imprisonment is quashed.
6. Mr Williams is re-sentenced to eight years’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Introduction

[1] In 1995 the appellant, Mr Williams, was found guilty on one count of murder following a trial in the High Court at Nelson before Doogue J and a jury. He was sentenced to life imprisonment.
[2] In late 1995 he appealed to this Court, an appeal dismissed under a truncated process this Court used at that time to deal with some appeals.^[1] That process was later considered by the Privy Council in R v Taito and found to have involved “a fundamentally flawed and unlawful system”.^[2]
[3] In 2015, 20 years later, Mr Williams applied for a rehearing of his appeal.^[3] There is no opposition to the application for a rehearing. This Court has the inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice.^[4] Given the procedural background to this application, we are satisfied that exceptional circumstances exist. Mr Williams’ earlier appeal was dismissed following a fundamentally flawed process; it is in the interests of justice that Mr Williams be granted a rehearing of his appeal.
[4] Mr Williams says he ought to have been acquitted on the count of murder. He says that he should instead have been convicted on a lesser count of manslaughter.

Background

The offending in brief

[5] Mr Williams was charged with murdering Clinton Strong. The events that led to Mr Strong’s death occurred in the early hours of New Year’s Day 1995 in a street in Motueka. It is apparent there was a street fight between Mr Williams and Mr Strong. The cause of death was attributed principally to blood loss caused by Mr Strong’s liver splitting when a serious amount of force drove it up against his spinal column.

Police interviews

[6] Mr Williams was quickly identified by the police as a suspect and interviewed by them. He made a written statement to police and then took part in four police interviews (videotaped) and one video demonstration. Mr Williams admitted fighting with Mr Strong but claimed the fight took place some distance from where Mr Strong was found. Finally, in the fourth interview, he gave a description of the fight which was more consistent with the evidence the police had located, including the position of Mr Strong’s body.
[7] In the video interviews Mr Williams said that he had been drinking for most of the day before his fight with Mr Strong. Around midnight he left the Swan Hotel, where he was “really drunk”, and went on to the Motueka Hotel. At some point he also left that hotel. In the fourth police interview Mr Williams described what happened in these words:

I mean I was a pretty drunk and whatnot. Um, everyfink up until the point I left the Mot. Hotel that night, I wandered off by muself and walked down the road and that. I think I turned into Whakarewa Street. I was walking down the road there and, um, this guy and that fucking started getting a bit mouthy to me and before I know it I was getting mouthy back. Took a swing at me and that. (Inaudible) a bit of a scuffle and whatnot. Ended up punching him a couple of times, and a few kicks in the head and that. And, um, just left him there and that, and wandered off.

[8] Mr Williams was charged with the murder of Mr Strong and taken to the District Court at Greymouth where he was remanded in custody to appear in the District Court at Nelson the next day. Police then took him from Greymouth to Nelson, detouring through Motueka. During the car journey Mr Williams agreed to walk them through the Motueka crime scene. Mr Williams was videotaped by police re-enacting the offending.

Trial

[9] Mr Williams was represented by Mr Tuohy, with Mr Bamford acting as his junior. It was agreed between the Crown and defence counsel that the first three videotaped interviews would not be led as part of the Crown case. Both parties accepted that the fourth videotaped interview gave a sufficiently balanced record to make the three earlier videotapes superfluous. It was played to the jury unedited.
[10] Mr Tuohy also confirmed to Crown counsel that he did not have instructions to object to the admissibility of the videotaped demonstration. It was played to the jury.^[5]
[11] The trial proceeded over four days. We do not have access to transcripts of counsel’s addresses or Doogue J’s summing-up. However, the materials before us contain a sheet prepared for the jury outlining the elements of manslaughter and murder. The sheet describes two types of murderous intent as relevant to the count of murder in the case; the first, that the offender meant to cause the death (a reference to s 167(a) of the Crimes Act 1961), and the second that he meant to cause bodily injury knowing that it was likely to cause death, and was reckless whether death ensued or not (a reference to s 167(b)). The jury was also instructed that there was no dispute that, if they found Mr Williams not guilty of murder, they would find him guilty of manslaughter.
[12] Although the jury appears to have been instructed on the two kinds of murderous intent, Mr Pike QC for the Crown on this appeal concedes that the true issue for the jury was whether the Crown had proved reckless intent, as there was insufficient evidence for the Crown to prove that Mr Williams intended to kill Mr Strong.
[13] It was not disputed at trial that Mr Williams assaulted Mr Strong. Nor was the cause of death at issue. As we have said, the principal cause of death was a split liver. The exact manner in which the fatal blow was delivered was contested. Based on the transcripts of evidence, the Crown case seems to have been as follows. Mr Williams inflicted a non-fatal head injury on Mr Strong, rendering him temporarily dazed or unconscious. There was evidence Mr Strong had suffered a subarachnoid haemorrhage. When Mr Strong was on the ground, Mr Williams stomped on his abdomen, inflicting the fatal blow.
[14] The explanation that Mr Williams gave toward the end of the fourth videotaped interview was that he had kicked Mr Strong in the abdomen while Mr Strong was standing.
[15] The defence run at trial was that Mr Williams lacked the intention to kill. It is apparent from the materials we have available to us that self-defence and provocation were not run as defences. Mr Williams was convicted on 24 October 1995 and on the same day was sentenced to life imprisonment.

First appeal

[16] In November 1995 Mr Williams filed a notice of appeal against conviction, advancing two grounds of appeal. First, that the verdict of the jury should be set aside on the ground that it was unreasonable as it could not be supported having regard to the evidence. Secondly, that there was a miscarriage of justice because part of the fourth videotaped interview in which Mr Williams disclosed previous sentences of imprisonment was mistakenly played to the jury.
[17] Mr Williams was declined legal aid and then his appeal was dealt with on the papers following the process mentioned above. There was no oral hearing. The Court had a copy of the High Court file, which did not include a copy of the summing-up as a copy had not been requested. The Solicitor-General was not required to file any submissions in response to the appeal. Mr Williams was given an opportunity to file written submissions. He did so in the form of a handwritten letter. Those submissions cover the following points:

• (a) There was too much doubt for a jury to find a guilty verdict beyond reasonable doubt.
• (b) There had been a trial in the High Court at Nelson shortly before Mr Williams’ trial, in which a man was found not guilty of murder after stabbing his wife. This led to a public outcry for justice, spearheaded by the press. Mr Williams said this caused unfairness to him as it created public pressure on the jury for a guilty verdict.
• (c) Three pathologists said that this was the first time in which this cause of death (loss of blood from a split liver) had been implicated in a homicide.
• (d) Evidence which had been ruled inadmissible by the Judge, relating to Mr Williams’ prior imprisonment, went before the jury.
• (e) There was evidence upon which the jury could have been satisfied that Mr Williams was provoked by Mr Strong’s behaviour that night.

[18] In dismissing the appeal the Court expressed itself satisfied there was sufficient evidence for the jury to infer the requisite intent.^[6] It said the disclosure of previous convictions could not have been material in the case.^[7] There was no suggestion that the jury were influenced by public pressure as a consequence of the earlier trial, and in any event the jury would have received the usual direction to decide the case on the evidence before them.^[8] As to the issue of provocation, the Court said that was a matter for the jury “if it was raised as a defence at the trial”.^[9] The Court concluded that no grounds had been shown which would justify the Court interfering with the jury’s verdict. It dismissed the appeal.

Procedure followed on appeal ruled unlawful

[19] The procedure that this Court followed in respect of Mr Williams’ first appeal was in accordance with a general procedure the Court followed at the time when an appellant could not afford legal representation. The procedure is summarised in R v Smith as follows:^[10]

[8] In brief, the practice for the determination of criminal appeals varied according to whether the applicant was represented by counsel (either privately instructed or through grant of legal aid) or not. For most appellants the availability of representation depended upon whether legal aid was granted. No case on appeal containing the trial transcripts, summing up, and sentencing notes was made available to appellants unless they were represented by counsel. The power to grant legal aid was conferred by legislation upon the Registrar of the Court, but was in practice exercised by three Judges of the Court who each considered the file separately. Where legal aid was declined and the appellant was not legally represented by privately retained counsel, the appeal was decided ex parte, without the appellant being present and on the papers. In effect, the opinions of the three Judges who considered the legal aid application on the papers became the decision of the Court on the substantive appeal. If written submissions had been received, a written ex parte judgment was prepared, usually by one of the Judges who had earlier declined legal aid and in the names of the three Judges who had considered legal aid. It was read out in Court, but the Bench did not necessarily include all or even any of the three legal aid Judges. If no written submissions were received, no written judgment or reasons were given. In that case, the appeal was formally dismissed at a sitting of the Court which did not necessarily include all or any of the legal aid Judges.

[20] This procedure was considered by the Privy Council in R v Taito. It held that the Crimes Act, the legislation under which appeals were brought at the time, contemplated the preparation and forwarding of a case on appeal to each appellant, that the appellant was entitled to an oral hearing of the appeal, and that there would be a judgment by and in accordance with the opinion of the judges who had heard the appeal.^[11] The Privy Council said the procedure in fact followed did not provide a case on appeal to the appellants.^[12] The Court of Appeal heard no argument. The appellants were not represented or present. The judges deciding the case had little information because no case on appeal had been prepared, and in some cases the judges had already considered and determined the merits in the course of recommending the refusal of legal aid. The Privy Council referred to the procedure the Court of Appeal followed as the “phenomenon of tabulated legalism” and held that it was not authorised by the legislation.^[13]
[21] In R v Smith this Court addressed the broader implications of Taito and in particular an argument that all appeals dealt with “ex parte” between 1991 and 2001 should be set down for an oral hearing, relying on the Court’s inherent jurisdiction to hear and set aside determinations of appeals marred by errors committed in breach of natural justice. The Court declined to take that step, noting that some appellants might prefer to proceed to the Privy Council rather than seek a second hearing before the Court of Appeal.^[14] But, the Court said that should an appellant seek a second hearing, all that would be required was a letter to the Registrar informing the Registry that a further appeal was sought, and in the usual course that appeal would proceed to an oral hearing.

Approach on this appeal

[22] The conduct of this appeal has been hampered by the lack of a full record of the hearing. This many years after the trial (22) it is not possible to obtain a transcript of the summing-up or counsel’s addresses. The delay and this associated difficulty is not attributable to Mr Williams. There is no evidence before us that he was made aware of the decision in Taito and of the opportunity it created for him to seek a rehearing of his appeal. Taito was, in any case, a decision given some years after the dismissal of his first appeal.
[23] As mentioned, Mr Bamford, counsel for Mr Williams on this appeal, also appeared for him at his trial. We note this because some of the grounds of appeal arguably raise issues of trial counsel competence. We concluded, however, that Mr Bamford could responsibly represent Mr Williams on this appeal. He was not senior counsel in 1995 and, we think it safe to infer, did not advise on trial strategy. Of more significance in our thinking however is this — after 22 years, with the fallibility of human memory and the absence of a full written record, it would be a futile task to try and work out why the trial was conducted as it was and whether issues of trial counsel fault arise. Mr Williams’ appeal does not turn on showing trial counsel fault. Rather, Mr Bamford invites us to consider whether the way the trial was conducted, whatever the reason it was conducted in that way, resulted in a miscarriage of justice. We accept that is the appropriate way to approach the issues on this appeal given the very particular circumstances of this case: an appeal 22 years after the trial, conducted in the absence of a full record of the trial. The Court has the flexibility to identify and intervene to prevent a miscarriage of justice, however caused.^[15]
[24] Because of the age of the proceeding to which this appeal relates, it is to be determined under the Crimes Act and in particular s 385(1)(c). It is argued for Mr Williams that a miscarriage of justice has occurred in the determination of the indictment against him.
[25] The principal arguments advanced on this rehearing of the appeal are that a miscarriage of justice has occurred because:

• (a) The disclosure to the jury of Mr Williams’ earlier convictions prejudiced his right to offer an effective defence.
• (b) The videotaped demonstration should not have been admitted into evidence. It was unfairly obtained, unreliable and had little probative value.
• (c) Fresh evidence is now available as to Mr Williams’ neurological functioning. This would have been relevant to the issue of intent and, in particular, whether Mr Williams foresaw the risks that his offending entailed. It is evidence that should have been available to the jury.

[26] This last ground of appeal rests upon an application to admit evidence on appeal in the form of an affidavit from a psychologist, Mr Prince. Mr Prince outlines Mr Williams’ troubled youth, mental health issues he had as a child and the trauma he experienced in state institutions. Mr Bamford relies upon this evidence to establish that as a consequence of Mr Williams’ life experience and neurological functioning, he was at greater risk of lashing out without appreciation of the risk his actions carried.
[27] In written submissions filed for the appeal Mr Bamford advanced arguments that the availability of the defence of provocation was overlooked by counsel, an argument that relied in part on Mr Prince’s evidence. However, after reading the Crown’s written submissions, Mr Bamford accepted not only that the evidential foundation for that defence was not laid at trial, but that the defence of provocation was not available in light of statements made by Mr Williams in the course of his police interviews. Mr Bamford did not pursue the ground of appeal concerning provocation before us.
[28] Nor did Mr Bamford pursue a ground of appeal that residual community discontent from an earlier murder trial placed pressure upon the jury to convict. He accepted that since 22 years have passed since the trial, and without an evidential foundation of some sort, he could only invite us to speculate as to the impact on the jury of those events.
[29] We address those two grounds of appeal no further.

First ground of appeal: Prejudicial material in interview

[30] It is common ground that there are a number of passages in the fourth video interview which reveal Mr Williams’ previous criminal history. In the appeal brought in 1995, Mr Williams said in his written submissions that Doogue J had ruled that at least some of this material was inadmissible. We have not seen any ruling to this effect but, given the state of the records, it may well have been made.
[31] While it was accepted for Mr Williams that on occasion prejudicial material will go before the jury and that judicial direction may be sufficient to correct that, in this case we do not have the summing-up. There is therefore no evidence that the jury were given adequate directions on the issues raised by Mr Williams, or in fact any potential issue arising in the trial.
[32] For the Crown, Mr Pike says this was a matter for trial and there is no evidence the material now objected to was objected to at the time. Mr Pike suggests that it is likely there was no objection, as the defence questioned Crown witnesses about the victim’s previous criminal convictions to suggest he was a violent criminal.
[33] Mr Pike submits that in any event there was little risk that the jury would have decided the essential issues in the trial not on the evidence, but as a result of prejudice — there was no credibility contest at trial as it was conceded Mr Williams’ actions had caused Mr Strong’s death.

Passages in question

[34] The videotape of this interview is no longer available to be played to us. From the transcript we can deduce that Mr Williams was unrepresented during the course of the interview. The extent of foul language used by Mr Williams during the course of the interview is striking. Many of the sentences are coloured in some way with expletives. We mention this as we see it as necessary context for the prejudicial material we now refer to.
[35] During the interview Mr Williams describes avoiding the police on New Year’s Eve, with the implication that he was not only known to them but was in some way in trouble with the law. When asked if he had seen a policeman in Motueka on New Year’s Eve, Mr Williams replied: “No. ‘Cause they said to me if they were going to see me and that they were fucking going to lock me up.”
[36] The issue of police presence is returned to later in the interview and Mr Williams is reminded that he said he saw an off-duty policeman in the pub. Mr Williams then says:

1. And I thought oh yeah, and, and just fucking carried on what I was doing, but I never fucking enough (inaudible) close to him fucking, wished him hap’, merry fucking, happy new year or whatnot.

Q. Not your style?

1. No. Well the thing was, mate, that fucking, um, I was out on the piss and shit and stuff like that, and whatnot, and, um, I had already been told that if I got seen on the street and that, you know, at night time and whatnot, you know, over the Christmas period that I’d get picked up. And they told me that at the Motueka coppers and that pulled me up, so I’ve been keeping a low profile from the fucking going out on the piss, on the piss and that in town. There’s no fucking way I would’ve walked up to a copper and says oh fucking happy new year. (Laughs.) This is fucking ridiculous.

[37] Toward the end of the videotaped interview Mr Williams admits to the offending in question. In the course of wrapping the interview up, the interviewing officer asks him if there was anything else he wanted to say before the tape was stopped. Mr Williams then launches into a lengthy monologue in which he reflects on his life:

Now I’m looking at some more jail, I don’t know. Probably a long time. And, ah, you know, I’ve done four jail lags already, you know. Its just screwing my mind. Its just screwing my mind. I want to live a normal life and that like other people live, without the hassles of the Police, without getting out, in, in and out of trouble. I don’t know. ... Here I am walking home and then after having a real, my first New Year’s out for four years, because of me working hard, keeping my nose clean, being able to sort my plate, get my plate cleaned up, fings like that, you know.

[38] Finally, Mr Williams refers to an occasion a few weeks earlier, in which someone had come around to his flat when he was in bed and attacked him. He dates the event to “the morning I was supposed to appear in Court”, thus suggesting that he had current criminal matters to be dealt with at the time of his attack on Mr Strong.

Analysis

[39] The first issue is whether the evidence was admissible. The High Court file was obtained at the time of the first appeal, and while it did contain both a judgment and a ruling by Doogue J on evidential issues, the admissibility of these particular passages was not addressed. In a judgment given pre-trial the Judge merely records the agreement of Mr Williams to the admission of the fourth videotaped interview, without any apparent reservation or suggestion that editing was required.^[16]
[40] A primary consideration in connection with the admissibility of evidence is relevance. If evidence is not relevant to a fact at issue in the proceeding it is not admissible. This was true before the enactment of the Evidence Act 2006 and remains true today. On the face of it the evidence was not relevant to any issue at trial. It is hard to see how the fact that Mr Williams had served time in prison for unspecified offending could be probative on any issue. Even if Mr Williams’ credibility was at issue, and Mr Pike concedes it was not, this evidence had no bearing on his credibility.
[41] Mr Pike speculated that no objection was taken to this portion of the videotaped interview being played to the jury because defence counsel proposed to attack the character of the deceased, and did in fact cross-examine to establish that he had prior convictions, including for aggravated robbery and assault. In our view that evidence was also irrelevant and should not have been admitted into evidence.^[17] But in any case, we are unable to see how the admission of this evidence put Mr Williams’ character in issue.
[42] Prior to the enactment of the Evidence Act 2006, bad character evidence about an accused could only be adduced in very limited circumstances. The general rule was that at common law, the prosecution could only adduce evidence of a deceased’s prior convictions as “bad character” evidence if the accused gave “good character” evidence about herself or called witnesses to give the same.^[18] The leading case on this issue prior to the Evidence Act 2006 was Rex v Butterwasser:^[19]

When it became clear that the appellant’s counsel, after having attacked the witnesses for the prosecution, was not going to call the appellant, the prosecution sought and were allowed to give evidence-in-chief of the prisoner’s bad character. A police officer was called, who testified to the prisoner’s previous convictions and general character. In the opinion of the court, that was a course which cannot possibly be allowed as the law is at present. It is elementary law that ever since it became the practice, as it has been for the last one hundred and fifty or two hundred years, of allowing a prisoner to call evidence of good character, or where he has put questions to witnesses for the Crown and obtained or attempted to obtain admissions from them that he is a man of good character, in other words, where the prisoner himself puts his character in issue, evidence in rebuttal can be given by the prosecution to show that he is in fact a man of bad character.

[43] In New Zealand evidence of an accused’s previous convictions could also be introduced as bad character evidence under s 5(4)(b) of the Evidence Act 1908:

(4) A person charged and called as a witness in pursuance of subsection (2) of this section—

...

(b) Is liable to be cross-examined like any other witness on any matter, though not arising out of that person’s examinationin-chief, but so far as the cross-examination relates to any previous conviction of that person, or to that person’s credit, the Court may limit the cross-examination as it thinks proper, although the cross-examination may be permissible in the case of any other witness.

[44] This provision allowed the cross-examination of an accused on the issue of character, with the leave of the court. Self-evidently, for evidence to be produced or admitted in this way, the accused had to give evidence. Moreover, the discretion to allow such cross-examination was not unconstrained. In R v Kalo this Court said:^[20]

Although in New Zealand s 5 of the Evidence Act 1908 does not proscribe the discretion conferred on the Court to limit the cross-examination of a person charged as to previous convictions as the Court thinks proper, a line of cases in this Court has held that the limits enacted in the more detailed English statutory provision should in general be regarded as a guide in the exercise of the discretion, see the recent decision of this Court in R v Potter [1984] 2 NZLR 374. Accordingly, in deciding whether to exercise the discretion to prohibit such cross-examination it is proper to have regard among other things to whether the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the Crown witnesses, this being one of the statutory criteria in England. It is of course well recognised that a mere denial of the prosecution evidence, even when put in strong terms, may not put the accused in peril ...

[45] Therefore, at the date of Mr Williams’ trial there were two potentially relevant avenues through which a prosecutor might lead evidence of an accused’s previous convictions as bad character evidence. These two avenues and the application of Rex v Butterwasser were confirmed by this Court in R v Kino.^[21] The Court discussed Butterwasser in the following way:^[22]

The judgment of the Court (Lord Goddard CJ, Hilbery and Lynskey JJ) was delivered by the Chief Justice. He said that where the accused does not put his own character in issue, but has merely attacked the witnesses for the prosecution, no case has held that evidence can be called to prove that the accused is a person of bad character [except for when the accused takes the stand and offers bad character evidence about the prosecution witnesses etc]. ...

So far as we know the principle in Butterwasser has not been previously considered in this Court, at least not directly, although it is treated as applicable in this country in the Law Commission’s recent discussion paper, “Evidence Law – Character and Credibility” (Preliminary Paper 27, February 1997) at para 195. However, the Court has certainly expressed the view that where the situation is as described by Lord Goddard CJ in Butterwasser, the only permissible purpose for granting the prosecution leave to cross-examine on previous convictions is to test the credit of the accused [should the accused take the stand], see R v Kalo [1984] NZCA 92; [1985] 1 NZLR 219 at p 220. ...

Where the accused does not give evidence, no question of his credit can arise.

[46] All of the above analysis conforms to the pre-Evidence Act position as stated by Adams on Criminal Law:^[23]

As set out in EC3.04(2), if the accused offers evidence casting imputations on the character of a prosecution witness, this can open the door to crossexamination of the accused by the prosecution. However, if the accused does not testify, the prosecution cannot counter the attack on one of its witnesses by offering evidence of the accused’s bad character: R v Kino and Mete [1997] 3 NZLR 24 (CA). Such a tactic by the accused may result in an adverse comment from the Judge on the accused’s choice not to give evidence: EC15.03(10).

[47] We therefore conclude that even though Mr Williams attacked the character of Mr Strong in the course of the defence case, this did not render admissible evidence about Mr Williams’ previous convictions, in circumstances where he did not give evidence.
[48] We have no doubt that this was highly prejudicial material. Mr Williams admits to having been in prison four times and that he served at least four years in prison. At the time of his interview he was only 23 years old. While we accept Mr Pike’s submission that Mr Williams’ credibility was not in issue in the trial, this evidence was prejudicial not because it could cause the jury to disbelieve him but because it could cause the jury to think that Mr Williams was a hardened criminal. It could easily have been weighed by them when considering whether the Crown had proved that Mr Williams perceived the level of risk involved in his assault, but nevertheless decided to proceed.
[49] This risk was heightened by the manner in which Mr Williams expressed himself during the interview, including in one exchange with the interviewing police officer where the officer gratuitously ventures into the issue of the “code” by which Mr Williams lived his life. This topic arose because Mr Williams’ former girlfriend had reported to police that he had admitted to being involved in a fight on the night in question. She later told Mr Williams she was concerned she would have lost friends because she had “narked” on him:

1. I just spoke to her and that and whatnot. She was going on how fucking, um, she reckons, yeah (laughs), she’s lost her friends and that now. Lost a couple of her friends and shit.
17. Why’s that?
1. And, um, she’s not allowed the fucking, um, she won’t be able to [attend] any of the bike clubs any more.
17. The bike club?
1. Mm, the bike clubs.
17. Why’s that?
1. Well, fucking, she came down the police station, mate, didn’t she, and made fucking statements and fucking bullshit, and carry on whatnot.
17. Is that not the done thing?
1. Eh?
17. Is that not the thing to do?
1. Well, well they class her as a fucking nark or something, (inaudible).
17. Well I suppose it depends where you’re [sic] standards lie. If you think it’s important enough when someone’s been murdered and you know something about it. Perhaps someone might see it as their civic duty.
1. Civic fucking duty.
17. That’s obviously not the code that you live by.
1. Eh? Oh I don’t, mate.
17. Don’t say nothing, is that your ...
1. What’s that? No, I’m not saying that at all. I’m just saying that if, um, like if someone fucking went out and, um, stole a car or somefing, you don’t fucking run to the cops and say oh fuck I know who stole a car.

[50] When this Court considered this ground of appeal in 1996 it dismissed it in one sentence. The evidence could not have been material.^[24] Mr Pike conceded that reasoning was flawed. We are satisfied that it was. The Crown case on intent was not straightforward. Mr Williams was very intoxicated. The fatal blow, while brutal, was not obviously likely to cause death — a kick or stomp to the abdomen of an adult male. The submission that a very drunk person would not, in the course of a fight, be able to comprehend the risk of death would, we think, have had reasonable prospects of success. We consider there was a real risk that the jury would be, and indeed that it was, influenced in their reasoning on this issue by the highly prejudicial material in relation to Mr Williams’ past.
[51] Mr Pike submitted that the trial Judge would have directed the jury not to give any weight to the evidence about Mr Williams’ previous time in prison. In the absence of a record of the Judge’s directions we are not prepared to speculate that he did give such a direction but, in any event, we doubt that a direction of that nature could cure the prejudice caused by the production of this evidence. The jury might very well have formed a view that Mr Williams was a dangerous and hardened criminal, which would in turn have affected their assessment of the critical issue — whether he had murderous intent.
[52] We are satisfied that the admission of the evidence of Mr Williams’ previous prison sentences carried with it the implication of previous serious offending. And that this may well have adversely affected the conduct of Mr Williams’ defence. There is in our view a real risk that a miscarriage of justice has occurred.^[25] The appeal must accordingly be allowed on this ground of appeal.

Second ground of appeal: Admissibility of video demonstration

[53] Mr Williams argues that the videotape of the scene demonstration filmed on 2 January 1995 should not have been admitted into evidence because:

• (a) it was obtained unfairly;
• (b) it was unreliable; and
• (c) its prejudicial effect outweighed its probative value.

[54] These arguments depend upon factual issues which were not pursued prior to or at trial. The videotaped demonstration was admitted by consent. The videotaped demonstration, and the transcript of it, are now lost. In these circumstances, and because it is not dispositive of the appeal, we do not consider the issues further.

Third ground of appeal: Fresh evidence relevant to the issue of intent

[55] The evidence in question is from Mr Prince and is as to a possible psychological diagnosis for Mr Williams and what bearing it may have had upon his behaviours. We assess the evidence as not being of particular assistance. However, because of the view we have taken as to the first ground of appeal we do not propose to address this additional ground in any detail as to do so would involve traversing Mr Williams’ medical history and personal background. The application to adduce the affidavit on appeal is therefore formally declined.

Conclusion and result

[56] The application to adduce fresh evidence on appeal is declined.
[57] For the reasons set out above we are satisfied that a miscarriage of justice has occurred in the determination of the count of murder against Mr Williams, in that the admission of evidence as to his previous imprisonment and other aspects of bad character render the verdict unsafe. The appeal is allowed.
[58] At the hearing, both counsel were in agreement that if we allow the appeal, the appropriate course is to quash the conviction for murder and substitute a conviction for manslaughter. We agree that is the appropriate outcome. Given the number of years since the offending and the number of years Mr Williams has served in prison, a retrial is neither feasible nor necessary. Much of the evidence is lost and it would be impossible to conduct a satisfactory retrial. A conviction for manslaughter can be substituted since Mr Williams does not dispute that his assault on Mr Strong caused his death. We make orders accordingly.
[59] We also quash the sentence of life imprisonment, imposed in respect of the conviction for murder. We discussed with counsel the appropriate sentence for manslaughter in this case. At the hearing counsel were in agreement that the appropriate sentence is eight years’ imprisonment.
[60] Following the hearing Mr Bamford filed further submissions arguing for discounts from that starting point. He argues that since Mr Williams was always prepared to plead guilty to manslaughter, the offence for which he is now convicted, he should be entitled to a discount of 25 per cent.
[61] These submissions proceed on the false premise that Mr Williams has been found not guilty of murder following trial. That is not the case; his conviction for murder has been quashed because of a miscarriage of justice, and a conviction for manslaughter substituted. Even were we to conduct a notional sentencing exercise of the type Mr Bamford contends for, we would arrive at the same figure of eight years. In our view, a significantly higher starting point than eight years was appropriate in respect of this offending. Mr Williams admitted kicking Mr Strong in the head when Mr Strong was on the ground. He also kicked or stomped on his abdomen with such force that it split his liver. While there was a scuffle leading into this assault, the seriousness of the violence involved satisfies us that a starting point of 10 years’ imprisonment was justified. Against that background we are satisfied that a final sentence of eight years’ imprisonment allows sufficient recognition of the guilty plea. This is the sentence that we impose.
[62] Mr Bamford sought also to rely on Mr Prince’s affidavit as to Mr Williams’ psychological condition. We do not consider that material would justify any reduction in sentence so his reliance doesn’t cause us to take a different view as to the admissibility of the evidence.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Williams CA512/95, 29 March 1996.

^[2] R v Taito [2003] UKPC 15, [2003] 3 NZLR 577 at [21].

^[3] Issues with Mr Williams’ representation and the gathering of evidence for the appeal caused substantial delay in its progress.

^[4] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [40].

^[5] The sound quality of the demonstration was poor. A transcript of it was provided to the jury, although over defence counsel objection. The transcript contained more than a record of the audio content of the videotape. It contained at least some narrative content provided by the police.

^[6] R v Williams, above n 1, at 1.

^[7] At 2.

^[8] At 2–3.

^[9] At 3.

^[10] R v Smith, above n 4.

^[11] R v Taito, above n 2, at [14].

^[12] At [20].

^[13] At [14].

^[14] R v Smith, above n 4, at [68].

^[15] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [67].

^[16] R v Williams HC Nelson T14/95, 15 September 1995.

^[17] Donald L Mathieson (ed) Cross on Evidence: Eighth New Zealand Edition (LexisNexis NZ, Wellington, 2005) at [13.43]. There is no material change between this analysis in 2005 and Mathieson’s in 1989: DL Mathieson Cross on Evidence: Fourth New Zealand Edition (Butterworths, Wellington, 1989) at [13.40]. See also R v Davis [1980] 1 NZLR 257 (CA).

^[18] Mathieson Eighth New Zealand Edition, above n 17, at [13.35]. We note that an accused’s previous convictions could also be directly relevant to a fact at issue. Such convictions could provide similar fact evidence (now termed propensity evidence) that the accused had a tendency to act in a particular and distinctive way. That avenue for admissibility was clearly not relevant to this trial.

^[19] Rex v Butterwasser [1948] 1 KB 4 (Crim App) at 6.

^[20] R v Kalo [1984] NZCA 92; [1985] 1 NZLR 219 (CA) at 220.

^[21] R v Kino [1997] 3 NZLR 24 (CA).

^[22] At 28 (original emphasis).

^[23] Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [EC8.15(1)(b)] (emphasis added).

^[24] R v Williams, above n 1, at 2.

^[25] We are satisfied this is not a case in which it is appropriate to apply the proviso to s 385(1).