R v MESSERVY [2023] NZHC 3155

R v MESSERVY [2023] NZHC 3155 [9 November 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-009-8059[2023] NZHC 3155THE KINGvBAILEY MESSERVYHearing: 2 November 2023Appearances: D L Elsmore and M G McClenaghan for CrownA N D Garrett and K H Cook for DefendantJudgment: 9 November 2023Re-issued: 21 December 2023JUDGMENT OF EATON J(defendant's statement and propensity)This judgment was delivered by me on .. at pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Bailey Messervy is charged with the murder of Nigel Wilson. It is alleged thathe murdered Mr Wilson by repeatedly stabbing him within the Bexley Reserve shortlyafter 5 am on the morning of 14 November 2022. He has entered a plea of not guiltyand is presently remanded to a trial date in August 2024.Pretrial matters[2] Two pretrial applications have been filed. First, the Crown seek a ruling as tothe admissibility of proposed propensity evidence. Second, both the Crown anddefence seek a ruling as to the admissibility of Mr Messervy's statement made topolice on 16 November 2022.Background facts1[3] It is the Crown case that, shortly after 5 am on 14 November 2022, the victim,Mr Wilson, was walking his young dog within the Bexley Reserve in Christchurch.Eighteen year old Bailey Messervy was with his co-defendant, travelling inMr Messervy's vehicle. They drove into the Bexley Reserve for the co-defendant togo to the toilet.[4] Mr Wilson observed Mr Messervy's vehicle, waved his arms and yelled, "dogswalk here." He was concerned the vehicle was speeding. After the co-defendant hadbeen to the toilet, they and Mr Messervy went to leave the reserve, driving towardsthe Pages Road entrance. As they approached that entrance, they saw Mr Wilsonshutting the gates and then running into the bushes nearby. It is the Crown case thatMr Messervy became very angry and yelled at the victim to "open the fucking gatebro." In response, Mr Wilson came out of the bushes yelling at Mr Messervy andapproaching his vehicle. As Mr Wilson moved closer to the vehicle, Mr Messervy isalleged to have exited, armed with a knife. It is alleged he then stabbed Mr Wilson in1 The factual summary relies on information given to police by the co-defendant who, as at the dateof this hearing, is a co-defendant. Consequently, the statement is inadmissible against MrMesservy. Counsel were agreed the Court should proceed on the assumption the co-defendantwill be a Crown witness at trial.the abdomen as he pushed him backwards. Mr Wilson grabbed Mr Messervy by thetesticles, and both men fell to the ground. It is the Crown case that, while on theground, Mr Messervy stabbed Mr Wilson repeatedly. Both Mr Messervy andMr Wilson then got to their feet, and Mr Messervy backed away. The co-defendanttook Mr Wilson's phone that had fallen to the ground. Mr Wilson is alleged to thenhave dropped to his knees, raising his hands in the air saying, "I'm done, I'm done."It is alleged the defendant opened the gate, and as he returned to his car, pushedMr Wilson to the ground and verbally abused him. Mr Messervy with theco-defendant then left the reserve, leaving Mr Wilson lying injured.[5] Mr Wilson's dog managed to find her way to Mr Wilson's home, alerting hispartner. His partner, together with other members of Mr Wilson's family, thensearched for Mr Wilson, finding him within the reserve. An ambulance was called.Mr Wilson underwent several operations over the following eight days. He was takenoff life support and died on 22 November 2022.Mr Messervy's statement[6] On 1 June 2023, the Crown prosecutor filed a s 101 Evidence Act 2006application seeking a pretrial ruling as to the admissibility of the DVD statementMr Messervy gave to police on 16 November 2022.[7] That statement has been transcribed. It runs to approximately 160 pages. Thefirst 120 pages deal with allegations Mr Messervy had been involved in a number ofdrive-offs from petrol stations. When the interviewing officer eventually questionedMr Messervy about the stabbing, Mr Messervy denied any involvement in a stabbing.He told the detective he would not answer questions about "that stuff" without talkingto a lawyer.[8] During the interview, the police advised Mr Messervy that his co-defendantwas talking to another police officer at the same time. Police then drip-fed informationprovided by the co-defendant to Mr Messervy. His initial response was that theco-defendant was not telling the police the truth, and he repeatedly asked if he couldsee the co-defendant in order to satisfy himself that police were not misleading him asto whether they were speaking to police and what they were telling police.[9] Mr Messervy did not make any admissions regarding the stabbing during thecourse of the interview. He said he was home at the time of the stabbing.[10] Following notice by the defence of an objection to the admissibility ofMr Messervy's statement, based on the failure to caution Mr Messervy in relation tothe stabbing enquiry and a failure to facilitate access to a lawyer, the Crown resolved,on the grounds the statement was exculpatory, not to offer Mr Messervy's statementas evidence at his trial. Consequently, an admissibility ruling was not required.[11] Mr Garrett, on behalf of Mr Messervy, filed a memorandum with the Courtseeking a ruling as to whether the defendant could be cross-examined on the statementif he were to give evidence at trial.2 The only possible relevance of such a line ofcross-examination would be for the Crown to prove that Mr Messervy lied to policewhen first spoken to. Mr McClenaghan, on behalf of the Crown, supports Mr Garrett'srequest that the Court make a pretrial ruling as to the admissibility of the statement.[12] In oral submissions, counsel for Mr Messervy sought an adjournment of theadmissibility application to allow further disclosure to be made about events shortlyprior to the interview and to allow for the interviewing officer to be cross-examined.[13] I do not need to determine the application for an adjournment. I have resolvedit is not appropriate for the Court to determine the admissibility issue as matters standfor the reasons that follow.[14] First, I have reservations as to the appropriateness of the Court issuing a rulingon a hypothetical basis. Presently, the Crown do not seek to offer Mr Messervy'sstatement into evidence. A pretrial ruling will have no consequence unlessMr Messervy makes an election to give evidence at trial and if the Crown then soughtto cross-examine him on the statement. Whether either of those scenarios will playout remains to be seen. Unless or until an application is made to do so, any ruling asto its admissibility is not required.2 In submissions filed on the admissibility of propensity evidence, Mr Garrett confirms the issuesat trial will be intent and self-defence.[15] A number of exchanges within the disputed statement record Mr Messervy'sresponse to matters said by the co-defendant to police during their interview. Becausethey are a co-defendant, their statement is not admissible against Mr Messervy. Atinterview, Mr Messervy consistently denied that what the co-defendant was tellingpolice was true. He did not adopt the co-defendant's version of events. Therefore,putting aside any issue as to whether Mr Messervy's statement was unfairly obtainedby police, the passages in Mr Messervy's interview recording his denial of theco-defendant's version of events are inadmissible.[16] The circumstances would be different if the co-defendant was no longer aco-defendant, if they were to plead guilty in advance of Mr Messervy's trial, if theywas a Crown witness, and if they gave evidence in accordance with their policeinterview. Presently, there are several unknowns. It could be only when thoseunknowns are resolved that the Court will be in a position to make a ruling as towhether Mr Messervy's statement is admissible such that he could be cross-examinedon that statement.[17] It will be for the trial Judge to make that ruling if there is a shift from thecurrent circumstances. In the meantime, I decline to make an admissibility ruling inrelation to Mr Messervy's statement.[18] I nevertheless make the following observation. Mr McClenaghanacknowledged that the only basis upon which the Crown would seek to cross-examineMr Messervy on his prior statement would be to prove he lied to police when firstinterviewed. Whilst I acknowledge the lie has some probative weight, it is not asignificant limb of the Crown case. I do not think evidence of that lie is of any greatprejudice to Mr Messervy. It does not strike me as a matter of great moment that aneighteen year old, when first confronted, lies about his involvement in an incidentinvolving serious violence, and particularly not when, as I understand the Crown case,Mr Messervy made an admission of involvement in a confrontation with Mr Wilsonvery shortly after the interview was concluded and again in a letter to his motherintercepted by police following his arrest. During the course of argument, I suggestedto counsel that the fact of Mr Messervy's initial denial could be recorded as a singlesentence in a s 9 admission of facts. I make this observation as it may be thatdiscussions between the parties can resolve this issue and avoid the need for a voir direand ruling at trial.Propensity[19] The Crown seeks to admit evidence of two prior incidents in February 2022for which Mr Messervy received Youth Court notations, he having "not denied" theallegations. On behalf of Mr Messervy, it is submitted the unfairly prejudicial effectof the alleged propensity evidence outweighs any probative value.Alleged propensity evidenceThe Warehouse incident[20] On 12 February 2022, at around 9 pm, Mr Messervy was at The Warehousewith a female associate and her children. A customer informed security personnel theyhad seen Mr Messervy put items under his clothing. A security guard approachedMr Messervy as he exited the store. Mr Messervy sought to speedily exit the store.The guard grabbed Mr Messervy's jersey. Mr Messervy spun around and said, "doyou wanna fight?", before punching the guard in the chest and shoulder region.Mr Messervy, his partner, and the children then ran to a vehicle in the carpark.[21] The guard and another staff member approached Mr Messervy's vehicle. Uponbeing confronted, Mr Messervy reached into the vehicle from the driver's side, tookpossession of what appeared to be a serrated knife, challenged the staff member and,while holding the knife at his hip, threatened to cut his throat. The guard and staffmember backed away, and Mr Messervy drove off at speed.Petrol Station incident[22] On the afternoon of 22 February 2022, Mr Messervy was filling his vehiclewith petrol at a Christchurch petrol station. A female passenger was with him. Thestore attendant noticed Mr Messervy getting back into his car without having paid andtold him he needed to pay for the petrol. Ms Messervy reached into the driver's sidepocket of the door and pulled out a knife, holding it in a "backward grip". He wavedit multiple times at the attendant as if he was going to stab him. Mr Messervy thendrove off.General principles[23] Propensity evidence is that which tends to show a person's propensity to act ina particular way or have a particular state of mind, being evidence of acts, omissions,events, or circumstances with which a person is alleged to have been involved.3[24] The prosecution may only offer propensity evidence about a defendant if theevidence has a probative value in relation to an issue in dispute that outweighs the riskthe evidence may have an unfairly prejudicial effect on the defendant. Section 43(3)lists several permissive considerations relevant to considering probative value, ands 43(4) prescribes the mandatory considerations in assessing the prejudicial effect.[25] Admissible propensity evidence will share a specific link with the allegedconduct said to constitute the offence for which the defendant is being tried.4 Suchevidence must be "genuinely and logically relevant to the issues the jury will have todetermine".5 The essence of the rationale for admission was captured by Tipping J onbehalf of the majority in Mahomed v R as follows:6"The greater the linkage or coincidence provided by the propensity evidence,the greater the probative value that evidence is likely to have. It is importantto note, however, that the definition of propensity evidence refers to atendency to act in a particular way or to have a particular state of mind. It isnecessary, therefore, that the propensity have some specificity about it. Thatspecificity, in order to be probative, must be able to be linked in some waywith the conduct or mental state alleged to constitute the offence for which theperson is being tried."[26] The Court must remain alert to the risk of illegitimate prejudice that is too greatfor jury directions to be a safeguard.7 Ultimately, the determination of theadmissibility of propensity evidence is intensely fact specific.83 Evidence Act 2006, s 40.4 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].5 Stretch v R [2012] NZCA 286 at [24].6 Mahomed v R, above n 4, at [3] (emphasis original).7 R v Hayde [2021] NZHC 2714 at [37].8 Grigg v R [2015] NZCA 27 at [22].The issue[27] Mr Cook, for Mr Messervy, confirms that regardless of the position taken byMr Messervy when interviewed by police, he will at trial accept he was in possessionof a knife that he had produced from his vehicle and that he got into a struggle withand stabbed the deceased. Mr Cook confirms the issues at trial raised by the defencewill be murderous intent and self-defence.Crown Submissions[28] The Crown frame the propensity as a "proclivity by the defendant to use a knifewhich is carried in the vehicle he is driving, and in situations of confrontation to thenuse that knife to threaten, intimidate and overcome any perceived hostility or threat.Such actions are completely unjustified and excessive in response".[29] Mr McClenaghan submits the two propensity events are relevant to both thetrial issues of murderous intent and self-defence.[30] Relevant to the probative value of the propensity evidence, the Crown submit:(a) There are three acts, so frequency is present to a moderate to highdegree.(b) The acts occurred within a nine-month period and are closely connectedin time.(c) The acts are similar insofar as they involve a victim confrontingMr Messervy regarding his conduct, Mr Messervy responds withaggression and threatening behaviour, a knife is involved and is takenfrom the vehicle Mr Messervy is driving, and all three acts involveMr Messervy brandishing or using the knife in a threatening manner.(d) There are three sets of allegations.(e) There is no suggestion of collusion or suggestibility across theincidents.(f) Threatening a person with a knife and being confrontational is notparticularly unusual, per se, but considered together, the acts take on aspecificity which makes it unusual.[31] Mr McClenaghan submits there is sufficient specificity to the allegedpropensity and that there is a high degree of linkage, and coincidental reasoningsupporting the admission of the evidence. While the previous incidents concernedMr Messervy reacting to allegations of shoplifting/theft, the Crown say this is not arelevant distinction and it is the matter of confrontation that is salient.Mr McClenaghan submits the key distinguishing factor that led to the stabbing is thatMr Messervy's escape was cut off by Mr Wilson having shut the gate to the reserve,whereas he was able to drive away from The Warehouse and petrol station incidents.[32] In support of a submission that the propensity evidence has probative value inrelation to both trial issues, Mr McClenaghan relies on the Court of Appeal decisionin Harris v R.9 In Harris, propensity evidence of prior acts involving threats whenarmed with a weapon were admitted as propensity evidence at the defendant's murdertrial. The Court of Appeal agreed with the High Court that the prior acts were relevantboth as to murderous intent and self-defence in circumstances where the propensitywas described as presenting a weapon in circumstances where doing so wascompletely unjustified.[33] Mr McClenaghan submits the two incidents have considerable probative valuein considering self-defence. He contends that the two previous incidents demonstrateMr Messervy as an aggressor who is quick to arm himself with a knife and escalate aconflict he has created. He is quick to anger, and the incident at The Warehousedemonstrates Mr Messervy does not hesitate in responding with physical force whenphysically confronted. Mr McClenaghan submits this also goes to intent.[34] Mr McClenaghan submits that, against a high probative value, there is notunfair prejudice such that the evidence should be excluded.9 Harris v R [2016] NZCA 17.Defence Submissions[35] Mr Cook submits the two prior incidents do no more than demonstrate apropensity by Mr Messervy to possess a bladed weapon and present it intimidatinglywhen confronted. He submits the requisite specificity is lacking. Mr Cook disputesthat Mr Messervy was the aggressor in the prior incidents because they involve thevictims confronting him. Further, he highlights that, in both incidents, Mr Messervydeparted the scene after the victims have been dissuaded by the presence of the knife.Mr Cook contests the Crown's contention that the incidents show Mr Messervy isquick to anger and does not hesitate in responding with physical force.[36] Addressing the s 43 factors, Mr Cook observes that the two incidents occurrednine months prior and says they are not closely connected to the alleged offending.He submits there are glaring differences between those incidents and the allegedoffending. Most particularly, and Mr Cook submits determinate of the admissibilitydispute, neither of the incidents involved Mr Messervy escalating to violenceinvolving the use of the knife.[37] Relevant to the trial issue of murderous intent, Mr Cook relies onFallowfield v R,10 where the appellant admitted strangling his wife but deniedmurderous intent. Some of the evidence of previous domestic assaults, including oneof choking where the witness did not lose consciousness, were assessed by the Courtof Appeal as lacking probative value on the issue of intent. Mr Cook also relies onAh You v R.11 There, the defendant had been convicted of murder after attacking anelderly women in her home. The single trial issue was murderous intent. Propensityevidence was admitted where Mr Ah You had entered the homes of other persons andmade threats of violence and used low-level violence. The Court of Appeal held thepropensity evidence had limited probative value which was overwhelmed by theprejudice that flowed from it. The Court commented that the evidence did not involveMr Ah You killing anyone or even causing grievous bodily harm. Mr Cook observesthat Ah You was applied in R v Taunga,12 where Muir J held previous instances of thedefendant lashing out in anger and throttling persons did not have probative value as10 Fallowfield v R [2021] NZCA 279.11 Ah You v R [2011] NZCA 82.12 R v Taunga [2017] NZHC 972.to whether he had intent to cause injury when he squeezed the victim's neck for severalminutes.[38] Mr Cook distinguishes Harris on the basis Mr Harris had singularly initiatedthe confrontation whereas Mr Messervy is responding to confrontation. He describedHarris as an outlier. He submits the two propensity incidents have little or noprobative value in assessing the issue of murderous intent.[39] While appropriately acknowledging the prior events have greater probativevalue to the issue of self-defence, Mr Cook submits the evidence still falls short of thethreshold for admissibility. Again, he emphasises that in neither incident didMr Messervy use the knife to inflict harm. Therefore, it is submitted, thecircumstances giving rise to the death of Mr Wilson are too removed to permit theadmission of the prosperity evidence.[40] Mr Cook submits the prejudice flowing from the proposed evidence is greaterfor Mr Messervy, as the incidents in Harris were more "everyday activities in the ruralscene". Counsel argues that the jury hearing about incidents where Mr Messervy isaccused of theft and then using a weapon to threaten innocent civilians to avoidapprehension will cause unfair prejudice.Analysis[41] I see no basis to distinguish between the two propensity incidents. Bothincidents tend to show that Mr Messervy has a propensity to arm himself with a knife,that he keeps at the ready in his car, and to use that knife aggressively and threateninglywhen challenged by a person who is unarmed.[42] Counsel are generally in agreement as regards the s 43(3) factors. First, thereare three events that occurred over a period of approximately nine months.13 It followsthere is a temporal connection between the three events, and the number of events overthat comparatively short period of time favours admissibility. Second, I accept thereis a strong similarity between the propensity events and the alleged offending. In each13 Evidence Act, s 43(a) and (b).case, Mr Messervy acted in a manner that gave rise to a confrontation with a memberof the public. His response has been aggressive and threatening. On each occasion,he has ready access to a knife concealed within his vehicle. In each case, he has swiftlyarmed himself with the knife and brandished it in a manner that is threatening to thevictim, either by the physical use of the knife or words or both.14 I agree there is nosuggestion of collusion or suggestibility relevant to the admissibility determination.15Finally, I agree with Mr McClenaghan that the circumstances of similarity that I haveoutlined above do strike as unusual, albeit not to a high degree.Murderous intent[43] Notwithstanding the analysis that I have undertaken under s 43 in relation tothe probative value of the evidence, I am not persuaded the evidence is admissible asbeing probative of Mr Messervy's intent. The Crown argument rests heavily on theCourt of Appeal decision in Harris. Mr Harris was charged with murder. He hadconfronted another farmer about shooting his stock before stabbing him in the chestand attempting to run him over. Evidence of two previous incidents were admitted aspropensity evidence in the High Court and upheld by the Court of Appeal. The firstconcerned Mr Harris raising a knife at his brother and threatening to use itapproximately seven months before the alleged murder. The second involvedMr Harris threatening a 16-year-old who was eeling under a bridge near Mr Harris'sproperty. Mr Harris approached the youth with a shotgun and threatened him. Thatwas four years prior to the murder. The Court described the propensity as thepresenting of a weapon in circumstances where doing so was completely unjustified.[44] In relation to the first incident, the Court of Appeal found that: "the Judgewas clearly entitled to hold that the evidence of a threat involving a knife, incircumstances where it was unprovoked and completely unjustified, was directlyrelevant to the issue of Mr Harris's intent at the time he stabbed Mr Keogh to death,and to the credibility of any claim that he was defending himself against Mr Keogh."1614 Section 43(3)(c).15 Section 43(3)(e).16 At [13].[45] The Court found the second incident was evidence of Mr Harris's short temperand his proclivity to overreact by using or threatening to use a weapon in response towhat he perceives to be a threat to his safety or property rights. The Court consideredsuch evidence to be directly relevant to the issues of formation of murderous intent orthe excessive use of force in self-defence.17[46] The Court referred to the propensity events where the offender made threatswith a knife in circumstances where to do so was unprovoked and completelyunjustified. I agree the same could be said of Mr Messervy's use of the knife but, inmy view, that is of a very limited probative value in assessing murderous intent. TheCourt in Harris was not invited to distinguish the issues of intent and self-defence. Onthe fact of the present case, it is appropriate to do so.[47] Concepts of justification and provocation more comfortably fit, in my view, inconsidering the issue of self-defence. Evidence of prior acts of brandishing, but nototherwise using a knife, has little relevance in determining Mr Messervy's intent whenhe admits using the knife to stab the victim some nine months later. The situationwould be quite different if on a prior occasion he had used a knife, both in a mannerand with a consequence that would provide insight as to his state of knowledge and,therefore, intention. It is not known, and it would not be safe to infer, that on theearlier occasions Mr Messervy would have used the knife with murderous intent hadthe victim not retreated.[48] In circumstances where it is not alleged Mr Messervy has previously used theknife to attempt to, or to actually, inflict injury, I am not satisfied the prior events aregenuinely and logically relevant to the issue of murderous intent. I respectfully adoptthe reasoning of the Court of Appeal in Ah You. The propensity evidence isinadmissible as to that issue.Self defence[49] The situation is quite different in relation to the issue of self-defence. The juryat trial will be required to consider the circumstances as Mr Messervy believed them17 At [14].to be, who was acting as the aggressor, whether the knife was used defensively oraggressively, and whether the repeated stabbing of Mr Wilson was a proportionate orreasonable response to any threat posed in the circumstances as believed byMr Messervy.[50] Whilst other cases other cases do provide some guidance, the Court of Appealhas noted that, generally, judges should "avoid pointless attempts to reconcile onepropensity ruling with another, and that it is routinely unnecessary to refer to othercases to resolve propensity challenges which are fact and circumstance specific".18[51] I refer briefly to two other cases involving propensity evidence of prior threatswhere a murder is alleged. Those cases illustrate the importance of focussing on thedistinct trial issues and the escalation in seriousness of alleged offending.[52] In R v Keefe,19 Ms Keefe had stabbed her partner with a knife, killing him. Atissue was whether this had been accidental, but the Court of Appeal also considered apossible issue at trial would be self-defence. The Crown sought to adduce a witness'sevidence of two prior occasions where Ms Keefe had threatened her partner with anaxe and a broken bottle respectively. The Court considered the evidence was relevantto self-defence insofar as they spoke to Ms Keefe's threat perception at the time of thealleged murder and the proportionality of her response.[53] In R v Balkind,20 the Crown sought to adduce propensity evidence of previousdomestic incidents to show the defendant would drink, get aggressive, and wouldoverreact and make threats or produce knives. The disputed evidence was statementsfrom other people about injuries suffered by a domestic partner and a previous incidentwhere the defendant had brandished a knife. The defendant was charged withmurdering her partner. The Court noted that a difference in seriousness between thepropensity evidence and the alleged offending does not deprive the evidence ofprobative value. The Judge admitted the evidence, finding it was relevant andadmissible but solely for the purpose of negativing the defence of self-defence.18 Brown v R [2020] NZCA 97 at [13].19 Keefe v R [2014] NZCA 113.20 R v Balkind [2019] NZHC 257.[54] As I note at [42] above, I consider the evidence to be considerably probativegiven the temporal connection between the events, similarity, and degree ofunusualness across the incidents, and the lack of suggestion of collusion orsuggestibility. In my view, the agreed fact that Mr Messervy did not use the knife toinflict injury in the prior incidents is not an impediment to the admissibility of thepropensity evidence. I do not accept Mr Cook's submission the propensity evidencehas no probative value as regards self-defence because Mr Messervy did not use theknife on the prior occasions. It is the Crown's position that Mr Messervy was theaggressor and that he did not arm himself with a knife for use in self-defence.[55] I do not accept Mr Cook's submission that Mr Messervy is not reasonablydescribed as the aggressor in the two propensity incidents because the victimsconfronted him. Mr Cook is right that both victims did approach Mr Messervy, butonly to ask or challenge him about his suspected theft of property. There is nosuggestion the initial approach made by the victims was aggressive and certainly nosuggestion that Mr Messervy was genuinely physically threatened. Yet, in thosecircumstances he swiftly resorted to the arming himself with a knife and threateningthe victims with the knife. In my view he was clearly the aggressor in those scenarios.That, of course, does not prohibit him advancing a defence of self-defence but, it doesdemonstrate the probative value of the propensity evidence.[56] That Mr Messervy has a propensity, demonstrated by the prior events, to armhimself when in a confrontation with an unarmed person is relevant to the questionsraised by the defence of self-defence. I am satisfied the prior events are genuinely andlogically relevant to the issue of self-defence.Prejudicial effect[57] I agree with Mr Cook that some prejudice will flow to Mr Messervy as aconsequence of the jury hearing the propensity evidence. However, I do not acceptthat prejudice would operate unfairly to Mr Messervy. His age at the time and the facthe did not use a knife to inflict physical injury on the victim minimises the prejudicethat will arise. But the short point is that, on my assessment, the probative value ofthe evidence is high.[58] Counsel did not address the Court as to manner in which the propensityevidence ought to be put before the jury. In my view, it is relevant that the propensityevidence arises out of a prosecution faced by Mr Messervy in the Youth Court,meaning no guilty plea was entered and that an evidential hearing was avoided. Thisfavours limiting the propensity evidence to the summary of facts presented in theYouth Court in relation to each incident, provided there is agreement as to thesummary. To limit the evidence to the summary of facts as opposed to the Crowncalling evidence from the civilian witnesses will address the risk that the jury mightgive disproportionate weight in reaching a verdict to the propensity evidence.21Result[59] The propensity evidence is admissible but only in relation to the issue ofself-defence....................................................Eaton JSolicitors:Crown Solicitor, ChristchurchA N D Garrett, ChristchurchK H Cook, Christchurch21 Section 43(4)(b).