R v P HC Napier CRI 2008-020-2387 [2009] NZHC 849 (22 July 2009)

Last Updated: 21 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI 2008-020-2387}

THE QUEEN

v

P

E

K

Hearing: 20 July 2009

(Heard at Wellington)

Counsel: R J Collins for Crown

A J Snell for P

T M Petherick and M Phelps for E

R B Philip for K

Judgment: 20 July 2009

Reasons for Judgment: 22 July 2009

JUDGMENT OF RONALD YOUNG J (Evidential challenge)

[1] Before trial commenced I heard submissions from counsel relating to the admissibility of certain evidence the Crown wished to call from Katrina Biddle. I ruled that part of the evidence was admissible, part inadmissible. I now give my

_{reasons for this ruling.}

R V P AND ORS HC NAP CRI 2008-020-2387 20 July 2009

[2] The Crown propose to call Katrina Biddle as a witness at this trial. Mrs Biddle is the wife of the only eye-witness to the alleged assault. Her brief describes her entering the Mongrel Mob pad with her husband during the evening of the alleged assault. She says that during that evening her husband introduced her to two people whom he said were E and P . She describes what the two people were wearing. Later in the evening there was a fight which seems to be the event that has given rise to the charge currently before the Court. Mrs Biddle said she could not see who was involved.

[3] Counsel for the accused Mr E objects to that part of Mrs Biddle’s evidence that refers to any description of those persons whom her husband introduced, any mention by her of the names of the two people she was introduced to, and any conversation between her husband, herself and the two people whom the Crown allege to be Mr P and Mr E .

[4] The basis of the accused’s objection is that this part of Mrs Biddle’s evidence is essentially improper support for her husband’s identification evidence. The accused submits therefore that this evidence should not be allowed to be given because it has the potential to impermissibly boost Mr Biddle’s identification evidence.

[5] I note that there is no objection to the admissibility of Mr Biddle’s evidence, either that he introduced his wife to two men at the Mongrel Mob pad, or that he introduced them as Patrick E and Joe P .

[6] I consider that the evidence proposed to be called by the Crown is in part admissible and in part not. The Crown do not intend to lead any direct identification evidence from Mrs Biddle. The proposal to have Mrs Biddle report what Mr Biddle said may well be a hearsay statement. In terms of s 4 of the Evidence Act, it is a statement made by a person other than the witness. In one sense it is offered in evidence to prove the truth of its contents. The Crown accept that they cannot use that evidence to prove the fact that the people introduced by Mr Biddle were in fact Mr P and Mr E . It is, however, intended by the Crown to prove that

Mr Biddle did, by introducing those two people, identify them as Mr P and

Mr E .

[7] The Crown accept Mrs Biddle cannot identify the two people she was introduced to by her husband as Patrick E and Joe P . To allow her therefore to give evidence that those were the names used by her husband does have the capacity to improperly support his identification evidence. While it could be made clear to the jury by me that she cannot identify either accused, the danger of repetition of the husband’s remarks could improperly bolster his evidence. It has its parallels with the previous inconsistent statements’ rule at s 35.

[8] In my view the appropriate course with respect to this evidence is; Mr Tama Biddle can say that when he saw Patrick E and Joe P at the Mongrel Mob pad, he introduced his wife to them by name. He is entitled to give evidence, if he is able, as to whether either of these two men at the time disputed that that was their name. Mrs Biddle can say that she was introduced to two men by her husband when she was in the Mongrel Mob pad. She cannot give evidence, and should not be asked, what names her husband used for these men. She can describe the clothing they wore and she can be asked whether, upon the introduction, either of the men disputed that the names used by her husband were correct.

[9] The evidence of Mrs Biddle is, therefore, admissible in this limited way. It is relevant, it has probative value and in my view no illegitimate prejudice to the

_accused.

Ronald Young J

Solicitors:

R J Collins, Elvidge & Partners, PO Box 609, Napier, email: [e-mail]

A J S Snell, Barrister, Hastings, email: [e-mail]

T M Petherick, Greeson Grayson, PO Box 1045, Hastings, email: [e-mail]

R B Philip, Bate Hallett, PO Box 749, Hastings, email: [e-mail]