R v Beazley [2015] NZHC 2723 (4 November 2015)

Last Updated: 7 August 2017

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

_{PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.}

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-088-000361 [2015] NZHC 2723

THE QUEEN

v

_{PHILLIP JAMES BEAZLEY}

Hearing:	4 November 2015
Appearances:	N J Dore for the Crown A B Fairley for the Defendant
Judgment:	4 November 2015

_{JUDGMENT OF WOOLFORD J}

Solicitors: Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

R v BEAZLEY [2015] NZHC 2723 [4 November 2015]

Introduction

[1] Phillip James Beazley is charged with the murder of his son. The Crown now applies for an order that a statement by the ex-partner of the deceased, Amy Jean White, dated 11 February 2015, is admissible in the trial of the defendant.

Factual background

[2] After a drinking session at the family home on the evening of 25 January

2015, the defendant’s wife and deceased’s mother went to bed at around about

10:30 pm, leaving the defendant and the deceased alone outside the house on the deck. A short time later the defendant’s daughter and deceased’s sister, who sleeps on the opposite side of the house from the deck, was awoken by an argument coming from outside the house near the deck. She got up to investigate the noise. She saw the defendant and the deceased arguing in the driveway of the address.

[3] The defendant’s daughter walked to the ranch-slider door leading from the kitchen and called out to the defendant and the deceased to stop it, but they ignored her. She then decided to wake her mother, who was asleep in a nearby bedroom. The defendant’s wife was woken by her daughter and was told that the defendant and the deceased were fighting. As the defendant’s wife walked through to the lounge, she saw the deceased, her son, looking directly at her. He immediately dropped to the ground and did not speak to her at any point. She then saw the defendant to her right standing next to where the deceased dropped to the ground. The defendant had blood all over his face. The defendant then knelt down next to the deceased and was visibly upset.

[4] The defendant’s wife asked the defendant what he had done and he replied “You killed him”. The Police were summoned. When trying to establish what had taken place, the defendant became aggressive toward Police and was subsequently restrained and arrested. The Police located a large silver knife, approximately

30 centimetres in length, on the driveway of the address as well as a weed eater. Both of these items had blood on them and were found in close proximity to where the deceased had fallen. The Police also located a blood trail leading away from the family house and on to the grass verge outside an adjoining address, where they

found a steel pole similar to a tent pole, approximately 50 centimetres in length, with a small black plastic tip covering one end.

[5] A post-mortem examination of the deceased was conducted in Auckland. Three wounds were found, one of which had penetrated through the lung to a depth of between 17 and 19 centimetres, which lodged against the back rib cage. This injury was confirmed by the pathologist as the cause of death. The knife was found to have the defendant’s right palm print on the handle, which shows it was being held with the blade coming out of the front of the hand.

[6] Police initially spoke to the defendant, who said he had been drinking with the deceased, his son, and that they had been fighting. The defendant then said that the deceased had attacked him with a knife and had stabbed him in the head. He said he took the knife from him and then stabbed him with it. The defendant then said that he had managed to get the knife from the deceased during the struggle, but then the deceased charged him and the defendant had to stab him in what he called “self defence”.

Crown submissions

[7] Amy Jean White is the ex-partner of the deceased. They have one child together. She lived nearby and had been in a relationship with the deceased for approximately seven years. Through her relationship she knew the defendant and his family. In particular, she had observed previous interactions between the defendant and the deceased.

[8] The Crown has already identified certain parts of Ms White’s statement, which would not be led at trial, except in response to cross-examination or other assertions.

[9] Ms White describes the character of the deceased as being humble, shy and quiet. She notes that alcohol had changed his character and that at times he was violent towards her.

[10] She describes physical fights between the defendant and the deceased on earlier occasions. She describes arguments that would turn into “a punch-up”. She also describes occasions where the defendant would attack the deceased with anything he could get his hands on. She describes the fights as brutal and vicious and really violent. She confirms that the deceased was also a big man and would fight his father just as bad. She said they were as bad as each other.

[11] She describes a particular fight where the defendant obtained a wooden bat and hit the deceased so hard that the bat broke. She also describes the defendant striking the deceased with a crowbar during the fight. These fights would occur when they had been drinking and affected by alcohol.

[12] She also describes incidents where the deceased attacked her both with weapons and without weapons. This confirmed her concern about his use of alcohol and effectively ended their relationship.

[13] Near the end of their relationship she moved back in with the deceased and his family. She describes a further incident where the deceased was stabbed with a screwdriver by the defendant and on another occasion had a bottle of Jim Beam smashed over his head. She confirms she directly witnessed these incidents.

[14] The Crown submits that the acts of violence by the defendant against the deceased on earlier occasions are relevant and admissible to the issues at trial, whether:

(a) The stabbing was a deliberate intentional act; and

(b) The defendant was acting in self defence at the time of the stabbing. [15] The Crown submits that the probative value of the defendant’s earlier actions

in relation to the deceased outweighs any unfair prejudicial effect. The Crown submits that the earlier acts of violence show both direct intent and lack of self defence on a number of different occasions and circumstances. They are connected

in time and that they all occur between the defendant and the deceased in their adult life.

[16] The Crown further submits that the extent of similarity is strong in that they involve acts of violence with and without use of weapons in the context of alcohol consumption. The person providing the propensity evidence has direct knowledge of the matters deposed and there is no suggestion of any collusion or suggestibility in that regard.

[17] The Crown notes that these previous incidents appear regular and common to the defendant and the deceased, but must, however, be seen as unusual in normal circumstances. The Crown submits that exclusion would provide an inappropriate picture to the jury that the circumstances of the homicide were unusual.

[18] The Crown seeks the admission of those parts of Ms White’s evidence that relate to previous assaults by the defendant on the deceased as propensity evidence. It submits they are relevant to assist the jury in determining the issues at trial.

Defence submissions

[19] Counsel for the defendant, in his written submissions, opposed the evidence of Ms White being admitted at the trial of the defendant, although his submissions today are more measured. Putting aside the propensity evidence, counsel submits that a secondary issue is that the statement contains numerous prejudicial and irrelevant statements.

[20] Counsel submits that Ms White was unable to give direct evidence as she was not present at the time of the alleged offending. Instead, her evidence is replete with irrelevant and prejudicial material. Counsel submits that Ms White’s evidence is only relevant to the Crown’s propensity point. The history of the deceased and his relationship with Ms White is not relevant, nor probative to an issue in dispute. Counsel submits that if the evidence is admissible, there is a real risk that aspects of the evidence would unfairly prejudice the fact finder against the defendant.

[21] In addition to the two issues identified by the Crown, counsel for the defendant raises a possible third issue, and that is whether the defendant caused the actual injury. On this issue, the propensity evidence has no relevance. On the issue of intent when the deceased was stabbed, counsel submits it is arguable that just because the defendant and the deceased had previously engaged in violent confrontations, it is not probative to the primary issue of whether or not the defendant had a murderous intent. Counsel also submits that while the incidents alleged may be probative as to the issue of whether or not there was a fight on the night in question, this could not logically extend one step further to establishing that the defendant had the requisite mens rea.

[22] Further, counsel submits that Ms White’s evidence would not assist the fact finder in establishing what transpired on the night of 25 January 2015 in that it has no probative value to the issue of self defence. The Crown’s proposed evidence has the effect of painting both the defendant and the deceased in a similar light, in that the deceased played an equal part in their confrontations. Ms White describes them as being “as bad as each other”.

[23] Counsel regretfully submits that domestic violence is all too common in New Zealand and therefore reliance on such behaviour as being inherently unusual is not generally appropriate. In the absence of inherently unusual behaviour, counsel submits it is for the Crown to demonstrate a particular unity of circumstance which demonstrates an unusual aspect of the offending which is also shared by the alleged propensity evidence. Counsel, at least initially, submitted that there was no such unity of circumstances and therefore the behaviour alleged was not unusual. Counsel submitted that taking all of these factors into consideration, the evidence has only moderate to minimal probative value and is likely to have substantial prejudicial effect. Consequently, counsel initially submitted that the proposed propensity evidence should be ruled inadmissible.

Discussion

[24] I agree that substantial parts of Ms White’s statement are inadmissible as

being irrelevant or prejudicial. However, those parts of her statement in which she

recounts previous incidents of violence between the defendant and the deceased which she has directly witnessed are admissible not as propensity evidence as such, but as relationship evidence. Furthermore, limited evidence about alcohol and possible drug use by the defendant and the deceased are also admissible for the jury to properly understand their reactions when intoxicated, which they obviously both were the night the deceased died.

[25] In Perkins v R, the Court of Appeal had to consider evidence of violence other than that represented in the charges.¹ The Court of Appeal stated:

[25] The complainant made reference in her evidence to acts of violence to her in the course of a relationship that were not the subject of any particular charge.

[26] We accept the Crown submission that it was important to the Crown case to show that there was a general atmosphere of violence to all those in the household emanating from Mr Perkins. It set the background for what the Crown claimed was the unwilling acquiescence to sex on the part of the complainant, who on past experience knew that if she declined she would be assaulted.

[27] This is not propensity evidence that falls within the category of orthodox similar fact evidence. Rather it is what is sometimes called relationship evidence. The evidence is allowed in not because of the similarity between what is alleged by way of background and the actual offending (although there are similarities) but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will be necessarily incomplete and perhaps not comprehensible from the point of view of the jury. It was said of relationship evidence in R v MacDonald:²

The relevance of the relationship evidence in terms of its narrative significance was obvious – so obvious that the point went without saying. In that context we do not think it matters that the Judge did not explain this to the jury. He certainly made it clear to the jury that they had to focus on the period covered by the charge.

[28] In this case, if the Judge had tried to explain the value of the evidence as showing the background to relationship there was a danger of stating the obvious and giving it judicial emphasis. This is likely to be more damaging to Mr Perkins’ case than leaving it as background without particular emphasis. An orthodox propensity warning was not required as this was not put forward as propensity evidence. The general warnings against prejudice were sufficient.

_{(footnotes omitted)}

¹ _{Perkins v R [2011] NZCA 665.}

² R v MacDonald CA166/04, 8 April 2005 at [23].

[26] Similarly, as to evidence of alcohol and drug use, the Court of Appeal stated:

[33] While the complainant denied under cross-examination any direct link between drug use and offending against her, she and her children gave evidence of Mr Perkins showing symptoms of the consumption of drugs or alcohol when offending occurred. It would have been artificial to exclude such evidence as it was part of the story of the way in which the family lived, and the circumstances in which violence occurred.

[34] This was not therefore propensity evidence. Mr Steedman in his opening address emphasised that Mr Perkins put his need for alcohol and drugs ahead of his responsibilities to his children and his partner. He did so, however, in the context of his emphasising that this did not in any way establish guilt. This was reinforced by the Judge’s later orthodox direction on prejudice and the need to focus on the actual charges and the proof of those charges. This was a sufficient direction.

[35] It may have been preferable for some of this and other background evidence to have been submitted by way of an agreed statement without some of the embellishment that was added on by witnesses. But in the end that was not essential.

[27] I am of that view that if evidence of previous violent incidents and alcohol and possible drug use was excluded, the jury would be puzzled as to how a fatal assault could occur between father and son after a night’s drinking with no apparent problems earlier that evening. The jury should know of previous violence between the defendant and the deceased, as much as for the defendant’s benefit as for the Crown’s benefit. Crown counsel acknowledged that Ms White’s statement was a two edged sword. That is because Ms White will, apparently, say that her ex-partner, the deceased, was just as bad as the defendant and was himself prone to violence when intoxicated. This may assist the jury on both the issue of intent and the issue of self-defence, but that, of course, is a matter for trial.

[28] In broad terms, I rule as inadmissible evidence of violence by the defendant toward the deceased as he and his siblings were growing up, evidence of the deceased’s violence towards his ex-partner, evidence of the parents’ gang affiliations and evidence of any violent incidents which were not between the defendant and the deceased or which were not personally witnessed by Ms White. I have gone through Ms White’s statement with counsel to isolate those parts which are admissible, in my view. The admissibility of one particular passage on page 11 relating to the deceased’s use of legal highs is however to be determined later following the

Crown’s enquiry about the significance of caffeine and nicotine found in the

deceased’s blood.

[29] I therefore make orders accordingly.

.....................................

Woolford J