R v Langley [2014] NZHC 2484 (9 October 2014)

Last Updated: 7 July 2015

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-000611 [2014] NZHC 2484

THE QUEEN

v

_{PAORA CRAIG LANGLEY}

Hearing:	7 October 2014
Counsel:	R G Douch for the Crown E P Leary for the Defendant
Judgment:	9 October 2014

_{JUDGMENT OF BROWN J}

This judgment was delivered by me on 9 October 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitor, Hamilton

Counsel: E Leary, Auckland

R v LANGLEY [2014] NZHC 2484 [9 October 2014]

[1] The defendant is charged with a single count of murder of Sedrick Tiatia (the deceased) on 4 February 2014. The trial is scheduled to commence on 10 November

2014 in Hamilton. This judgment concerns the defendant’s application for directions

for the admission of hearsay and propensity evidence.

[2] In his memorandum dated 9 September 2014 Mr Leary for the defendant records an undertaking to the Court that the defence is one of self-defence pursuant to s 48 of the Crimes Act 1961. He advises that his opening statement will include a clear articulation to the jury that the defendant will give evidence as to self-defence.

[3] At the request of counsel for the defendant, which was not opposed by

Mr Douch, I made a direction that the hearing would be conducted in chambers. [4] The hearsay evidence proposed to be led was in three categories:

(a) Telecommunication intercepts;

(b) Job sheet and notebook entries of Detective Constable Le Pou said to indicate the deceased’s predilection and addiction to methamphetamine; and

(c) Detective Little’s job sheet reference to “The Mob”.

[5] The proposed propensity evidence also comprised three categories:¹

(a) The deceased’s conviction history;

(b) The fact that the deceased was an active member of the Mongrel Mob;

and

(c) The deceased’s methamphetamine addiction together with expert evidence regarding the use and effects of methamphetamine.

Hearsay

[6] At the outset Mr Douch advised that the prosecution would be leading evidence of the telecommunication intercepts. Accordingly no ruling was required on that material.

[7] In respect of the two job sheet entries, the grounds on which the application was made were:

(a) The evidence was relevant to the determination of the proceeding: s 7;

(b) The probative value of the evidence outweighed any prejudicial effect: s 8;

(c) The hearsay statements were contained in a business record: s 19;

(d) It would cause undue expense and delay if the person was required to be a witness: s 18(1)(b)(ii); and

(e) It was in the interests of justice as the hearsay statements were an important part of the background and context leading up to the alleged offence.

[8] Mr Leary emphasised that the two items were important for reinforcing the “fear factor” which was relevant to the analysis of “the circumstances as he believes them to be” in the context of the defence of self-defence in s 48.

[9] While acknowledging that the job sheets were business records within the definition of s 16,² Mr Douch submitted that the conditions in neither ss 18 nor 19 were established. The person who supplied the information to the officer was the brother of the deceased. The Crown does not accept that the deceased was, as the job sheet records, a “chronic Methamphetamine user” and questions whether the circumstances relating to the provision of that statement provide reasonable assurance that it is reliable as required by s 18(1)(a).

[10] The Crown further noted that Mr Hendriks Tiatia was not “unavailable as a witness” within the meaning of that phrase in s 16(2). Neither undue expense nor delay would be caused if he were required to be a witness because it was inevitable that he would be attending the trial in any event. The Crown indicated that it would wish to have the opportunity to cross-examine Mr Tiatia on the issue of the deceased’s methamphetamine usage.

[11] In response Mr Leary made a forceful submission that the procedures in the Evidence Act were designed to streamline the production of evidence and that it was absurd that the Crown should require the defence to lead such evidence.

[12] Given the potential importance of the deceased’s use of methamphetamine and the reliance which the defendant may wish to place on it in his defence of self- defence, I consider that it is appropriate that the Crown should have the opportunity to cross-examine the maker of the statement. Although the statement is a business record, the pre-requisites of the maker of the statement being unavailable and that undue expense or delay would be caused if the maker of the statement was required to be a witness are not established in this case.

[13] Nor is the subject of the deceased’s use of methamphetamine a matter in respect of which Mr Hendriks Tiatia cannot reasonably be expected to recollect the information which he supplied to the officer. Consequently I decline the defendant’s application for permission to adduce the statement in the job sheet of Detective Constable Le Pou as an admissible hearsay statement.

[14] The job sheet of Detective Little recorded that, in response to his inquiry to the defendant as to what the defendant was scared about, the defendant replied “the Mob ...”.

[15] Noting first the prohibition in s 21(1) and the undertaking that the defendant is to give evidence, Mr Douch resisted the admission of this statement as being inadmissible, as a previous consistent statement, as a consequence of s 35(1). He noted that s 35(3) did not apply as the defendant plainly recalls the statement. The exception in subs (2) would only come into play in the event that the prosecution ran

its case in such a way as to render the earlier statement admissible by challenging the defendant’s veracity or accuracy. I consider that for those reasons the defendant’s application in respect of the second job sheet must also fail.

Propensity evidence

[16] As this is not a case where the propensity evidence is about a defendant in a criminal proceeding, the relevant provision is s 40(2) which provides that a party may offer propensity evidence in a civil or criminal proceeding about any person. Propensity evidence is defined in s 40(1) in this way:

(a) Means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved; but

(b) Does not include evidence of an act or omission that is –

(i) 1 of the elements of the offence for which the person is being tried; or

(ii) the cause of action in the proceeding in question.

[17] In Mahomed v R³ the Supreme Court said:

[3] The rationale for the admission of propensity evidence rests largely, as William Young J says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.

...

[7] In order to make the necessary assessment the court must carefully identify how and to what extent the propensity evidence has sufficient particularity to be probative, and how and to what extent it risks being unfairly prejudicial. Obviously any evidence that is probative will be prejudicial to the accused but not normally unfairly so. Unfairness is generally found when and to the extent the evidence carries with it a risk that the jury will use it for an improper purpose or in support of an impermissible process of reasoning. In assessing the probative value/unfair prejudice balance, the court may need to take into account the extent to which it

³ Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.

considers a proper use direction in the trial judge’s summing-up is likely to guard against the risk of improper use. With those introductory remarks, we turn to the circumstances of the present case.

[18] Mr Douch submitted that, although at [3] the Court related that specificity to the conduct or mental state alleged to constitute the offence for which the person is tried, it must equally apply to an analysis of whether propensity evidence about another person, other than the accused, is relevant in the sense that it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. That is a determination of whether the Crown has discharged the onus upon it to prove the essential ingredients of the charge beyond reasonable doubt. He contended that such analysis involves, as suggested in [7] of the judgment, careful identification of how and to what extent the propensity evidence has sufficient particularity to be probative and how and to what extent it risks being unfairly prejudicial. In the present circumstances the latter test arises by virtue of s 8, not by s 43.

The deceased’s conviction history

[19] Mr Leary submitted that, although decided before the Evidence Act 2006 came into force, R v Farquhar⁴ confirmed that in a criminal case where the issue is self-defence the complainant’s propensity to act in a certain way is relevant. He drew attention to the Court’s observation that:⁵

The key question to be answered is how is evidence of the complainant’s previous convictions relevant to the case in question. Unlike the case of an accused, there is no consideration of prejudicial effect, as the only potential prejudice is to the complainant.

[20] He also drew attention to the observations of Asher J in R v Selby (No 10)

regarding a deceased’s previous conviction history:⁶

The Supreme Court [Wi v R [2009] NZSC 121] has, however, made it clear that even slight relevance is enough to support the admission of propensity evidence. If a lack of previous convictions of a type which has similarities to the offending can be relevant to show a lack of propensity, obviously previous convictions of such a type may show a propensity. The reasoning applies equally to the assessment of the admissibility of the convictions of a

⁴ _{R v Farquhar CA4/06, 20 March 2006.}

⁵ _{At [16].}

⁶ R v Selby (No 10) HC Auckland CRI-2007-092-20293, 18 December 2009 at [19].

deceased whose conduct in relation to a claim of self-defence is at issue. In respect of prejudicial effect on the Crowns’ case, just as prejudicial effect on a defendant’s case can be nullified by clear judicial directions to the jury, such directions can equally be effective in respect of prejudice to the Crown.

[21] He also placed emphasis on the observations of the Supreme Court in

Wi v R:⁷

While it can always be said that there is a first time for everything, evidence that a defendant has never been convicted of any, or any relevant, offence tends to show he has never committed any such offence. Its tendency to show that may be slight but, logically and as a matter of experience, this kind of evidence does have some tendency in that direction. Once this point is reached, the remaining question is whether evidence which tends to suggest a defendant has never previously committed any, or any particular, crime tends to show that the defendant did not do so on the occasion or occasions charged. Again, the tendency of the evidence to show this is slight, perhaps very slight, but we do not consider it can properly be said that this kind of evidence has no such tendency whatever.

[22] The deceased had an extensive criminal and traffic history spanning 1993-

2014. Mr Leary’s contention was that the totality of those convictions (spanning some six pages) comprised relevant propensity evidence as to the deceased displaying a complete and contemptuous disregard for law and for any order of the Court. He did not place reliance on individual convictions or on the conduct which was the subject of individual convictions.

[23] In response Mr Douch submitted that it is not the evidence of a prior conviction but rather the facts relating to prior offending which constitutes propensity evidence. Evidence of a conviction in itself is not sufficiently specific to be admissible as propensity evidence. More is required. He pointed out that in Selby it was the conduct of the deceased sufficiently identified on an earlier occasion which was relevant, not the outcome of the judicial process.

[24] I accept the submission for the Crown that there is no basis upon which it could be concluded that evidence of the fact of the totality of those many convictions for a variety of offences would tend to show the deceased’s propensity to act in a

_{particular way or to have a particular state of mind to the extent that it would have a}

⁷ Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [16].

tendency to prove or disprove anything of consequence to the determination of the current proceeding. As Fisher J noted in R v Wilson⁸ quoting R v Davis:⁹

The convictions ... do nothing to indicate that the deceased had ever before resorted to violence of a kind or degree which, if employed on this occasion, could have led the accused to stab with a knife in self-defence."

The fact the deceased was an active member of the Mongrel Mob

[25] The defendant’s argument proceeded on the basis that it must be common ground that the deceased was a member of the Mongrel Mob. The submission was that his membership of the Mongrel Mob, an acknowledged outlaw motorcycle club, displayed a propensity to disregard societal norms and to behave in an unlawful manner. In particular I understood it to be the defendant’s proposition that membership of the Mongrel Mob indicated a propensity for violence.

[26] Mr Douch commenced on this point by recording that it was not common ground that the deceased was a member of the Mongrel Mob, noting that he had no patch and no tattoo evidencing such membership. However, assuming that fact could be established, it was the Crown’s submission that the fact of membership of the Mongrel Mob did not constitute propensity evidence. The reason advanced was that the mere fact of being the member of a gang cannot establish that, as a consequence, the person has a propensity to behave in a particular way of the nature

envisaged in the propensity evidence definition.¹⁰

[27] Membership of the Mongrel Mob may demonstrate a propensity to be a member of a gang, in particular a gang whose members behave in an unlawful manner. However it is not apparent to me how membership of such a gang evidences a propensity to act in a particular way or to have a particular state of mind which is relevant for the issues for determination in the prosecution of the defendant

_{in this case or the defence which he intends to advance.}

⁸ _{R v Wilson [1991] 2 NZLR 707 (HC) at 713.}

⁹ _{R v Davis [1980] 1 NZLR 257 (CA) at 261.}

10. In R v Herewini HC Rotorua CRI-2006-063-3151, 14 August 2007 at [28] Stevens J considered no safe inference could be drawn from the fact the deceased might have been a gang member.

The deceased’s methamphetamine addiction

[28] Mr Leary’s submissions commenced again with the contention that it was common ground, as illustrated by disclosed police documentation, that the deceased had a history of use and addiction/dependency in relation to methamphetamine. He indicated that it was proposed to call expert evidence regarding methamphetamine, among other things, with reference to the effects from use, especially of withdrawal or coming down. His submission was that such evidence was relevant and probative in relation to the deceased’s behaviour at the time of the events resulting in his death.

[29] The Crown rejected the depiction of the deceased’s addiction/dependency as being common ground and made it clear that no such admission was made. It submitted that evidence to establish that the deceased had on occasion used methamphetamine, in order to enable a careful examination of the extent of that use and its consequences, had not been identified. Hence the conclusion that the deceased had a propensity to use methamphetamine, and consequently act in a particular way or to have a particular state of mind, was not available.

[30] The point was also made that the admissibility of expert evidence fell to be determined by application of the provisions contained in subpart (2) of Part 2 of the Evidence Act and that no such determination could be made without a brief of evidence from an expert and a clear picture of the evidence which would emerge at trial.

[31] While not abandoning the application so far as it related to the deceased’s methamphetamine usage, I think it is fair to say that Mr Leary was alert to the possibility that at this juncture it was still too early for a ruling to be made on this proposed evidence.

Conclusion

[32] On the basis of the material available at this time I do not accept that the three proposed categories of evidence satisfy the requirements for propensity evidence.

Other matters

[33] Mr Leary foreshadowed a number of objections to the cover and contents of the jury booklets containing photographic evidence. Mr Douch had not come prepared to address those issues. I declined to give directions until the Crown has

_{had an opportunity to consider the points made by Mr Leary.}

Brown J