R v B HC Rotorua CRI-2011-087-1316 [2012] NZHC 2434 (20 September 2012)

Last Updated: 7 December 2015

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-087-001316 [2012] NZHC 2434

THE QUEEN

v

B

Hearing: 27-31 and 3-4 September 2012

Counsel: G C Hollister-Jones and R W Jenson for the Crown

A F Rickard-Simms for the Accused

Judgment: 4 September 2012

Reasons: 20 September 2012

REASONS JUDGMENT OF DUFFY J [Re Propensity of Evidence]

This judgment was delivered by Justice Duffy on 20 September 2012 at 11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors: Ronayne Hollister-Jones Lellman P O Box 13063 (DX HP40041) Tauranga Central Tauranga 3141 for the Crown

_{Pacific Coast Law P O Box 11208 Palm Beach Papamoa 3151 for the Accused}

R v B HC ROT CRI-2011-087-001316 [4 September 2012]

[1] At the close of the evidence in this trial, there was a discussion with counsel regarding the extent to which the Crown could, in closing, rely on propensity evidence to prove the charges against the accused, Mr B . Because counsel were to present their closing addresses the next day, it was important that counsel knew as soon as possible of the limits I would place on the use of the proposed propensity evidence. Thus, I delivered a result ruling (R v B HC Rotorua CRI-2011-087-1316, 4 September 2012) with reasons to follow. I now provide those reasons. This judgment should be read together with the earlier result ruling.

Background

[2] The Crown says that prior to the trial, it had indicated to the defence that the Crown sought to rely on the direct evidence proving each count in the indictment as mutually supporting propensity evidence capable of proving other counts in the indictment as well. At that time, the defence did not object to this course. However, this was in circumstances where Mr B had pleaded not guilty to all the counts in the indictment. Thus, evidence that the Crown wanted to rely on as propensity evidence was at the pre-trial stage also directly relevant to proof of particular counts and, for this reason, it could not have been excluded from admission.

[3] At the commencement of the trial, Mr B pleaded guilty to what was then count 2 in the indictment. Later, at the close of the Crown’s case, the indictment was amended and Mr B then pleaded guilty to what were counts 2 and 9 in the amended indictment. The effect of the guilty pleas meant that evidence that was directly relevant to proof of those counts was no longer needed, but the jury had seen and heard it during the course of the Crown’s case. The Crown wanted in its closing address to rely on this evidence, as well as other evidence adduced in the trial as propensity evidence for proof of the remaining counts that were the subject of not guilty pleas. Mr B objected to part of this proposal. It became necessary, therefore, to determine how this evidence was to be dealt with before the jury in the Crown’s closing address and in my summing up.

[4] By the time counsel were ready to make their closing addresses, Mr B had changed his not guilty pleas on three counts of male assaults female to pleas of

guilty. Before the trial began, he had earlier pleaded guilty to another charge of male assaults female. Mr B accepted that those guilty pleas and the evidence of those particular assaults could be used against him as propensity evidence of a propensity to assault his partner, Ms W. However, Mr B contended that such evidence should not be available for use when it came to considering the count of assaulting Ms W with intent to injure her, and the counts alleging assaults of varying degrees of severity on his four month old son, K. The Crown, on the other hand, wanted to use the evidence of the assaults to which Mr B had pleaded guilty, as well as evidence of assaults he denied (allegedly on Ms W and K) as propensity evidence to prove all the remaining counts. Mr B objected to this.

[5] Mr B also faced one count of wilfully attempting to pervert the course of justice. In its closing address, the Crown wanted to use evidence of another alleged attempt to pervert the course of justice that was not included as a count in the indictment as propensity evidence to prove the count charging him with this offence. Mr B did not object to this proposal as he wanted to use this evidence for another purpose. I considered that since there was no objection to this propensity evidence, it could be used in the way that each party sought.

[6] I also considered that since the defence did not oppose the use of evidence relating to the offences to which Mr B had pleaded guilty as propensity evidence to prove the two remaining counts of male assaults female, this evidence could be used in that way.

[7] However, given the defence opposition to the Crown’s use of the other proposed propensity evidence, I considered it was necessary to rule on the extent to which, if at all, the Crown could use this evidence in the way that it proposed in its closing address. I considered that as the trial Judge, it was my duty to ensure that the Crown made a proper use of evidence that had originally come before the jury as direct evidence, but which by the time closing addresses were due could only be relevant as propensity evidence. I was mindful that the standard direction given to juries when there is more than one count in an indictment is that the jury should treat each count as a separate trial and identify and consider the evidence that is directly relevant to the particular count under consideration. I was aware that unless the

subject evidence could be used as propensity evidence, I would be obliged in the course of the summing up to direct the jury:

(a) To ignore evidence that related to counts to which Mr B had by then pleaded guilty; and

(b) To ignore evidence of other offending that was not directly relevant to proof of the particular count under consideration.

[8] I considered that the Court of Appeal’s findings in Saggers v R [2008] NZCA

364 at [34]-[41] provided helpful guidance on when a trial judge should act to ensure that the Crown did not in its closing address present the jury with a view of its case that could result in a miscarriage of justice.

Analysis

[9] I ruled that the Crown could use the evidence of the other assaults on Ms W as propensity evidence to prove the two remaining counts of male assaults female (being counts 1 and 3 in the amended indictment). In addition, I ruled that direct evidence to prove counts 1 and 3 respectively could also be used as propensity evidence (being mutually supporting allegations) to prove the other count. Other than this, I ruled that the Crown could not rely on the proposed propensity evidence for the purposes that it had sought to do in its closing address.

[10] The analysis I undertook included a consideration of s 43 of the Evidence Act

2006, as well as the relevant legal principles to be found in Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145, Vuletich v R [2010] NZCA 102, R v Stewart [2008] NZCA 429, [2010] 1 NZLR 197.

[11] The Crown had identified the issue in dispute as being that Mr B has a propensity to lose his temper and to then attack vulnerable persons on vulnerable parts of the body. I considered that this formulation of the issue in dispute was too broad, but I did consider that one of the issues in dispute was whether Mr B had a propensity to lose his temper with Ms W and then to attack her. When the

issue in dispute was framed in this way, I considered that in terms of the factors in s 43(3), the similarity of the alleged criminal conduct, its frequency of occurrence and the close connection in time between each occurrence were such that the proposed propensity evidence had a high probative value when it came to proof of counts 1 and 3 (the remaining male assaults female offences). I considered that the other factors in s 43(3) were either neutral or not applicable. Regarding the mandatory considerations in s 43(4), I considered that the probative value of the proposed propensity evidence clearly outweighed any unfairly prejudicial effect that this evidence might have on the jury.

[12] For the same reasons regarding the use of the proposed propensity evidence to prove counts 1 and 3 (being counts of male assaults female), I was also satisfied that the probative value of the proposed propensity evidence outweighed its prejudicial effect when it came to proof of the element of assault in the count of assault on Ms W with intent to injure her (s 193 of the Crimes Act 1961). This is because here, one of the elements of count 4 was whether or not Mr B had committed the assault on Ms W. Evidence of Mr B having a propensity to lose his temper with Ms W and then to attack her was highly probative when it came to proof of this element. Regarding s 43(4), the probative value of this evidence outweighed any unfairly prejudicial effect it might have on the jury.

[13] However, when it came to proof of the element of an intent to injure in count 4, I was not satisfied that the proposed propensity evidence could be used to prove this element. Proof of the mental element of the offence of assault with intent to injure requires proof of the existence of a specific intent to cause actual bodily harm. Recklessness as to whether such harm will result is not sufficient. The other offences of male assaults female entailed a general intent to assault Ms W, but they did not entail the specific intent that is required by the offence of assault with intent to injure.

[14] In terms of the assessment under s 43(3), I consider that the commission of general types of assault has little similarity with having the intent to commit actual bodily injury. Nor can the frequency or the timing of these general assaults be relevant to proof of the presence of the specific intent required for an offence under

s 193 of the Crimes Act. I considered that the other factors in s 43(3) were either neutral or not applicable. I concluded, therefore, that the proposed propensity evidence had very low probative value in this regard. Since the proposed propensity evidence had very low probative value here, to allow the jury to take this evidence into account when deciding if the necessary mental intent had been proven would be highly prejudicial to Mr B . Thus, I was satisfied that the Crown should not be permitted to rely on the proposed propensity evidence in its closing address as part of its proof of the element of intent to injure Ms W.

[15] The Crown had argued that the fact that the other assaults on Ms W had not amounted to assaults that were serious enough to warrant a charge under s 193 of the Crimes Act was only a matter of chance. However, I do not accept this reasoning. For an offence under s 193 to occur, it is not necessary that actual bodily injury occur. The crucial issue regarding proof of the mental element of this offence is whether or not at the time an assailant committed the assault, he or she did so with the necessary intent; the type of harm that eventuates is simply one indicator of the presence or otherwise of the necessary intent at the time of the commission of the offence. Thus, the outcome of an assault is not necessarily determinative of whether there has been an offence under s 193.

[16] Even when the outcome is taken into consideration, there is a clear pattern here that shows the injuries Ms W received, whilst unpleasant for her (minor bruises, blood nose, black eyes), were not to be equated with the type of injuries that constitute actual bodily harm that is more than trifling or transitory. Thus, it cannot be assumed that a propensity to commit general assaults on one’s female partner is consistent with the intent to inflict the requisite actual bodily harm on her as well.

[17] The Crown next argued that the evidence of the assaults on Ms W (both accepted and disputed) should be available as propensity evidence to prove the three counts involving assaults of varying degrees of seriousness on K. The Crown also wanted the evidence of each assault on K to be available as mutually supporting evidence to prove a propensity on Mr B ’s part to assault K. Each proposed use of the proposed propensity evidence needed to be considered separately.

[18] Regarding K, the broad way in which the Crown framed the issue in dispute (see [11] herein) can be reduced to whether or not Mr B had a tendency to lose his temper with the baby on occasions when Mr B became frustrated with K and, therefore, to attack him.

[19] When it comes to the evidence of Mr B ’s propensity to assault Ms W, I do not see that this has any probative value in relation to attacks on K. The Crown argued that both Ms W and K were vulnerable persons. I consider that their respective vulnerabilities were different. Ms W was Mr B ’s partner. She is an adult woman. In contrast, at the time of the alleged offending, K was a four month old baby, and he is Mr B ’s son. There is no similarity between an assailant attacking an adult woman, who is the assailant’s partner, in the course of a domestic dispute, and the assailant attacking his baby son. Indeed, in this trial, there was evidence that Mr B has six other children, one of whom was six years old. Those children were staying with him at the time K displayed signs of serious injury. There was no evidence that he reacted angrily and assaulted these children when frustrated by their actions. I considered that none of the factors in s 43(3) favoured the evidence of Mr B ’s propensity to assault Ms W having any probative value when it came to proof of the assaults on K. I also considered that the use of the evidence of the assaults on Ms W as propensity evidence to prove a propensity to attack K as well was highly unfairly prejudicial. I was satisfied, therefore, that the Crown’s proposed propensity evidence of the assaults on Ms W should not be used to prove the counts involving assaults on his son, K.

[20] When it came to the proposed propensity evidence of the assaults on K constituting mutually supportive allegations that established a tendency on the part of Mr B to lose his temper when frustrated with the child’s crying and to assault him, I was satisfied that the Crown’s proposed use of this evidence was permissible.

[21] Regarding the assaults on K, Mr B faced three counts and one additional alternative count. The counts were:

(a) Assault on a child under 14 years of age;

(b) Assault with intent to injure; and

(c) Causing grievous bodily harm with intent to cause grievous bodily harm; or alternatively

(d) Causing grievous bodily harm and being reckless as to whether grievous bodily harm occurred.

[22] Each offence contained an element of proof of the commission of a physical assault on K by Mr B . I was satisfied that when it came to proof of that issue, evidence that showed that Mr B had a tendency to lose his temper with K on the occasions when the baby cried and then to assault him was relevant to proof of the element that it was Mr B who committed the assault alleged in each of the counts. I am satisfied here that there was sufficient similarity between the circumstances of each offence, the frequency and timing of each offence as to give a high probative value to the evidence. I was also satisfied that the probative value of this evidence outweighed any unfairly prejudicial effect that it might have.

[23] However, I was not satisfied that evidence of these assaults on K by Mr B had probative value when it came to proof of the mental element of each offence. First, each offence had a different mental element. Assault on a child under 14 years old entails a general intent to commit an assault on such a person. Assault with intent to injure requires the specific intent to commit actual bodily harm. Intentionally causing grievous bodily harm entails the intent to cause serious harm to someone. Recklessly causing grievous bodily harm entails causing such harm and being reckless as to whether or not it occurs to someone. The mental elements the Crown must prove in relation to each offence are entirely different. I could not see, therefore, how the s 43(3) factors could be satisfied. When each offence was considered, the necessary similarity was absent. On the other hand, to allow the jury to consider the evidence directly relevant to each offence for the purpose of being propensity evidence to prove the necessary mental element of each of the other offences as well would have a highly prejudicial effect. I was satisfied, therefore, that when the analysis in terms of s 43 was carried out, there was nothing

about this use of the proposed propensity evidence that would enable it to be used in the way that the Crown sought.

Conclusion

[24] For these reasons, I made the rulings contained in the result ruling.

Duffy J