R v K HC Auckland CRI 2006-092-12705 [2009] NZHC 178 (2 March 2009)

Last Updated: 27 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2006-092-12705}

THE QUEEN

v

K

Hearing: 16 & 18 February 2009

Appearances: Mr Glubb & Mr Brookie for Crown

Ms Dyhrberg & Mr Brosnahan for accused

Judgment: 19 February 2009

Reasons: 2 March 2009

_{REASONS FOR JUDGMENT OF WINKELMANN J}

Crown Solicitor, Auckland

_{M Dyhrberg, Barrister, Auckland}

R V K HC AK CRI 2006-092-12705 19 February 2009

[1] During the course of trial the defence made application to adduce hearsay evidence. I heard brief argument in relation to that application. I initially heard argument on 16 February 2009, and then further brief submissions from counsel for the accused on 18 February 2009 as to the significance of evidence that had been given since the initial argument. On the morning of 19 February 2009 I declined the application and said I would give my reasons at a later time. I now do so.

[2] By way of background, the accused Mr K was charged with the murder of Mr Riki Mafi. Mr Mafi died from head injuries following an unprovoked attack on him. On the evening of the attack a group of young men chased and assaulted people who they thought had insulted them in some way. Mr Mafi was in no way implicated in the insult, or the group giving chase. He was simply in the wrong place at the wrong time.

[3] An earlier trial of Mr K on the same charge was aborted when one or more Crown witnesses approached the police with an account of events surrounding the attack on Mr Mafi, which suggested that others might have been implicated in his death. As a result of that new information, the police charged other individuals with the murder along with Mr K . Those additional individuals charged included Mr Scott Bagby and Mr Nathan Stephenson, both Crown witnesses in this trial. Ultimately, the charges against all others were withdrawn when the statements implicating them were with withdrawn. The proceeding then came to trial again with Mr K as the sole accused.

[4] Mr K admitted hitting the deceased with a baseball bat, but it was his defence that he hit him only twice, and that neither blow was the fatal blow. Others, including Mr Bagby and Mr Stephenson were also involved in the attack on Mr Mafi. Their conduct included kicking Mr Mafi, stomping on his head and attacking him with a bat.

[5] Mr Stephenson was called to give evidence by the Crown. He said that the accused alone attacked the deceased. He described the attack as involving several blows to the head of Mr Mafi, more blows than any other witness described. The

defence case was that Mr Stephenson’s evidence implicating the accused to the degree he did was false, in short that he was a liar. It was put to Mr Stephenson that he was one of the attackers who had kicked, punched and battered the deceased, and that he had given false evidence against the accused for the purpose of laying all of the blame upon Mr K . During the course of cross-examination, Mr Stephenson was asked if he had ever admitted to his mother that he had kicked the deceased. He denied that he had.

[6] The defence then sought leave to introduce hearsay evidence which it said would tend to contradict Mr Stephenson’s outright denial of involvement in any assault. The evidence was that of Detective Morrison, the police officer who spoke to Mr Stephenson’s mother Mrs Lyberopoulos, after Mr Stephenson was charged with murder. His evidence would have been based upon a notebook entry he made on 14 February 2008 recording the fact of speaking to Mrs Lyberopoulos, who lived (and continues to live) in Australia. He recorded that he “explained the situation with Nathan being charged with murder”, and that Mrs Lyberopoulos then said “Nathan told me that he kicked that guy.” He recorded his reply to her as “Nathan had not told me that and it wasn’t in his statement”, and Mrs Lyberopoulos’ response as “he told me that from day one and I thought that he had told you that.”

[7] Mr Brosnahan for Mr K submitted that the material was significant in terms of the issues at trial in the following respects:

1. It was an admission by Mr Stephenson that he used violence on the deceased, by kicking him.

2. It contradicted Mr Stephenson’s consistent statements to police and in evidence that the accused was the sole attacker, and that Mr Stephenson had no part in the assault (and indeed tried his best to prevent it), and was evidence that Mr Stephenson was one of the attackers.

3. It tended to prove that Mr Stephenson had a significant motive to lie about his actions and to try and place sole blame upon the accused.

4. It therefore was directly and materially relevant to Mr Stephenson’s credibility.

[8] It was submitted by the defence that the circumstances relating to the statement provided a high level of assurance that the statement was reliable. When called earlier in the trial, Detective Morrison gave evidence as to his careful practice in relation to the use of a notebook in recording evidence. The important part of the conversation appeared to have been recorded verbatim in the notebook, and then copied to a job sheet the next day. The conversation was short and the material recorded important, crucial in terms of the murder count that Mr Stephenson had just been charged with. That would have increased the attention the Detective paid to the statement, and hence his memory of it, and it also would have caused him to record it accurately. Further, the possibility of there being a misrecording by Detective Morrison was negatived by Mrs Lyberopoulos’ follow up statement “he told me that from day one and I thought he had told you that.” There was then nothing to suggest that the key part of the conversation was inaccurately or incompletely recorded.

[9] As to the reliability of the statement itself, it was submitted for the defence that Mr Stephenson’s mother would have no reason whatsoever to make the statement about her son’s admission to her unless it was true. In fact, she would have every reason not to make such a statement, even if it were true. It is akin to a statement against interest – a statement against the interests of a loved one, and therefore inherently reliable. Moreover, it was not a casual conversation in the context of Mr Stephenson being a witness. Mr Stephenson’s mother had just been advised that her son had been charged with murder, the most serious offence in the Crimes Act.

[10] Similarly, it was argued that there was no reason to suppose that Mr Stephenson did not make the admission to his mother. Mr Brosnahan submitted that the fact that the admission was made was corroborated by the evidence given during the course of the trial: by Mr Bagby who described Mr Stephenson kicking the deceased; and Mr Marsters who described Mr Stephenson kicking the deceased, and then picking up the bat that Mr K had used on the deceased, and batting the deceased in the head several times.

[11] It was submitted for the defence that since Mr Stephenson was not an accused on trial, considerations of prejudice to him as an accused did not arise. The interests of justice, in terms of fairness to Mr K in having his defence properly put before the jury, weighed heavily in favour of admission.

[12] The defence said that Mrs Lyberopoulos was unavailable, because she lived outside New Zealand and was unwilling to give evidence. An affidavit from Paul Barrowclough, barrister was filed. He deposed that on 12 February 2009, during the course of trial, he contacted Mr Stephenson’s mother on the instructions of defence counsel. He spoke with her twice on 12 February whilst she was at work. He told her that the defence wished to call her to give evidence in the trial. He said he made it clear that she would be asked about her conversations with her son in relation to his involvement in the assault against the deceased. He told her that the defence would arrange to fly her to New Zealand to give evidence at the High Court at Auckland, or alternatively it might be possible for her to give videolink evidence from Sydney. He confirmed in his affidavit that Mrs Lyberopoulos said that she was unwilling to give evidence at trial, either by flying to New Zealand or by videolink. She said that she had taken legal advice and knew that she had no legal obligation to give evidence at trial.

[13] The Crown opposed the application. The Crown did not argue that Detective Morrison accurately recorded what he thought he heard. Nevertheless, the Crown argued that it was unreliable, and if critical to the defence, should be given in the normal way to allow it to be properly tested. If the witness could be called, the indications were that she would not give the evidence the defence sought, which the Crown submitted, emphasised the unreliability of the evidence. The Crown also argued that in terms of unavailability, the application fell far short of satisfying the court that it was not reasonably practicable for the witness to give evidence at trial. This argument was advanced on the grounds that no effort had been made to contact the witness until four days after the trial had begun, although the defence had the notebook and worksheet disclosed to it well in advance of trial.

[14] The Crown provided a copy of an email from Detective Senior Constable

Nathan Abbott of the New South Wales police to Detective Sergeant Leleni, the

officer in charge of this investigation. In that email, DSC Abbott advised DS Leleni that in April 2008 he made contact with Mrs Lyberopoulos in order to obtain a statement from her about her son. She was hostile and told him she would not say anything until she spoke to her lawyer. In his email he set out what he marks as quotes from her. He says she said “it’s all hearsay and I don’t know what you are talking about.” When he said he had been told certain things were said between herself and her son and herself and the police, she responded “I can’t ever recall saying that. It didn’t happen”, “What you told is what the police told me Nathan said” and “The first I knew about the matter was when the police knocked at my door telling me.”

[15] DSC Abbott said Mrs Lyberopoulos called him back later that day to say she had spoken to a friend about some legal advice and understood that she didn’t have to do anything and so wouldn’t.

Analysis

[16] The evidence that the defence proposes to adduce is clearly hearsay. Prior to the enactment of the Evidence Act 2006 it would have been described as “double hearsay”, since it necessarily entails the witness giving evidence about what she has been told by person (A) about what yet another person (B) said to A.

[17] The general admissibility of hearsay is governed by s 18(1) of the Evidence

Act 2006 which provides:

A hearsay statement is admissible in any proceeding if -

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either -

(i) the maker of the statement is unavailable as a witness; or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[18] Section 16 of the Act defines “circumstances” as:

Circumstances, in relation to a statement by a person who is not a witness, include -

(a) the nature of the statement; and

(b) the contents of the statement; and

(c) the circumstances that relate to the making of the statement; and

(d) any circumstances that relate to the veracity of the person; and

(e) any circumstances that relate to the accuracy of the observation of the person

[19] The inquiry under s 18 is not the end of the matter, because the general principles set out in ss 6-8 of the Evidence Act also apply. In determining the admissibility of the evidence, the court must be satisfied that the evidence is relevant in the sense of having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. The court must exclude evidence, even relevant evidence, if its probative value is outweighed by the risk that the statement will have an unfairly prejudicial effect in the proceeding (s 8(1)). In determining whether the probative value of evidence is outweighed by the risk of an unfairly prejudicial effect, the Judge must take into account the right of the defendant to offer an effective defence. In practice, many of the considerations under ss 7, 8 & s 18 will be the same.

[20] In this case, evidence of an admission by Mr Stephenson that he had kicked the deceased is relevant to the accused’s defence as articulated by counsel for the accused (see paragraph [7] above), so that the s 7 threshold is crossed. Then the probative value of the evidence must be considered, and in particular whether the circumstances relating to the statement provide reasonable assurance that the statement is reliable. Even if it is accepted, as the defence and Crown agree it can be, that Detective Morrison had accurately recorded what he thought he heard in the telephone conversation, that record was still a record of what he thought he heard Mrs Lyberopoulos tell him. Her report was in turn a report of what she thought she heard her son tell her. The potential for distortion and miscommunication is obvious. This point is underlined by the fact that the discussion occurred in the context of a telephone conversation, in the course of a relatively informal exchange and not face to face. This was not after all a formal interview, and there is no

suggestion that Mrs Lyberopoulos knew that her discussion was being recorded in some way nor that she was asked to confirm the accuracy of the record. I conclude that the circumstances are not such as to provide reasonable assurance that the statement is reliable.

[21] There is also the email from DSC Abbott, which Mrs Lyberopoulos was reported as having given an explanation to the effect that Detective Morrison misunderstood her; because she thought it was Nathan who had told the police that he had kicked the deceased. Had Mrs Lyberopoulos been called as a witness, it could therefore be anticipated that she would not have given the evidence the defence sought to produce through Detective Morrison. In short, were I to allow this application, the defence would be in a better position than if they had been able to call Mrs Lyberopoulos as their witness.

[22] I considered Mr Brosnahan’s submission that notwithstanding that Mrs Lyberopoulos later denied that she made the statement, there was sufficient evidence to strongly corroborate that Mr Stephenson did make the admission, and that it was a true admission. I make the simple point that there was no evidence corroborating the making of the admission by Mr Stephenson. The only evidence in relation to that was the very evidence sought to be adduced, namely Detective Morrison’s evidence about what he recorded Mrs Lyberopoulos as saying. Mr Brosnahan pointed to the evidence of others that Mr Stephenson kicked the deceased. Even if that evidence were evidence which could be regarded as reliable in corroborating that Mr Stephenson kicked the deceased, it would only very indirectly corroborate that he made the admission. In any case, there was good reason to treat the evidence of the witnesses with particular care. Mr Bagby was a participant in the events, and had himself been charged with Mr Mafi’s murder at one point. There was also evidence at trial that Mr Bagby had been involved in telling others what account of events to give the police. There were then good grounds to doubt the credibility of his evidence. As to the witness Marsters, he had given an inconsistent account in a video-taped police interview, in which he denied seeing anyone other than the accused strike the victim, even when specifically asked about Mr Stephenson.

[23] I therefore concluded that there was no reasonable assurance of reliability of the statement. That being the case, the evidence had little probative value, and carried with it the risk of an unfairly prejudicial effect on the proceeding. I do not accept the defence’s submission that the only prejudice that was to be weighed was the prejudice to the defence. Unfair prejudice to the Crown’s case is also weighed in the balance.

[24] In determining whether the probative value of the evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on this proceeding, I also took into account the right of Mr K to offer an effective defence. The defence already has the eyewitness accounts of other witnesses that includes evidence that Mr Stephenson was involved in the attack on the victim. The hearsay evidence might tend to corroborate that, but given what I consider to be its inherent unreliability, its tendency to do that is a reason why it should not be admitted. I ruled accordingly.

[25] For these reasons I did not need to consider the Crown’s alternative argument that the defence had failed to adequately prove that Mrs Lyberopoulos was unavailable

Winkelmann J