R v ROIGARD [2015] NZCA 430

R v ROIGARD [2015] NZCA 430 [10 September 2015]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: ORDER MADE IN HIGH COURT PROHIBITING PUBLICATIONOF NAME OR IDENTIFYING PARTICULARS OF PERSON REFERRED TOAS MR X REMAINS IN FORCEIN THE COURT OF APPEAL OF NEW ZEALANDCA258/2015[2015] NZCA 430BETWEEN THE QUEENAppellantAND DAVID NOEL ROIGARDRespondentCA457/2015BETWEEN DAVID NOEL ROIGARDAppellantAND THE QUEENRespondentHearing: 17 August 2015Court: Ellen France P, Courtney and Clifford JJCounsel: S K Barr for Appellant in CA258/2015 and Respondent inCA457/2015P M Keegan and J M Woodcock for Respondent in CA258/2015and Appellant in CA457/2015Judgment: 10 September 2015 at 2.30 pmJUDGMENT OF THE COURTA The Solicitor-General's application for leave to appeal is granted.B The Solicitor-General's appeal is allowed in part. The evidence of Phillip Hopkinson and of Teresa Patu about hiding bodies is admissible.C Mr Roigard's appeal against the decision to decline him bail is dismissed.D 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.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France P)Introduction[1] David Roigard is charged with the murder of his son, Aaron Roigard.Aaron's body has not been found. Mr Roigard is also charged with theft by a person in a special relationship. The Crown alleges he defrauded Aaron of some $66,000. Mr Roigard's trial is to commence on 16 November 2015.[2] Heath J in the High Court dealt with a number of pre-trial applications and with Mr Roigard's application for bail. The Solicitor-General seeks leave to appeal under s 217 of the Criminal Procedure Act 2011 against a decision in which the Judge ruled inadmissible two sets of statements.1 The first of these are statements said to have been made by Mr Roigard about his willingness to kill other family members. The second set comprises statements it is said Mr Roigard made about his ability to hide bodies.[3] Mr Roigard appeals against Heath J's decision to decline him bail.2[4] After setting out the background, we deal first with the Solicitor-General's application for leave to appeal and then with Mr Roigard's appeal in relation to bail.1 R v Roigard [2015] NZHC 727 [Pre-trial decision].2 R v Roigard [2015] NZHC 1867 [Bail decision].Background[5] We need to explain the Crown case, the proposed evidence and the Judge'sapproach. We deal with each in turn.The Crown case[6] We adopt Heath J's distillation of the Crown case.3 The Crown alleges that the facts giving rise to the charges of theft in a special relationship provide a motive for Mr Roigard to kill Aaron. In particular, the Crown will say that from, at the latest, about the end of August 2007 Aaron paid Mr Roigard money to invest. The Crown case is that the money was paid so Aaron could buy a farm on which he and his family would live. Moneys were paid by Aaron by automatic transfer to anaccount (the "Sovereign" account) operated by Mr Roigard. By the time of the lastautomatic payment on 2 April 2014, $66,100 had been paid to Mr Roigard.[7] As Heath J puts it:[6] The Crown alleges that Aaron was (in the best sense of the word) a simple man who had little appreciation of business and who relied on his father to invest his savings prudently. On the Crown case, Aaron genuinely believed that his money was to be invested and then used for the purchase of a farm around 1 June 2014. On the other hand, Mr Roigard asserts that Aaron authorised him to use the moneys for his own purposes, and knew thathe was doing that. Mr Roigard will contend at trial that Aaron's expressedbelief that he was buying a farm was either a lie or a fantasy.[8] The Crown case proceeds on the basis that in May 2014, Aaron and his partner believed they were going to buy a farm in Palmer Road, Kaponga. Both Mr Roigard and Aaron are said to have told others about this. There was no signed agreement for sale and purchase.[9] By late May 2014, Aaron and his partner thought they were about to move with their two children to the new farm. They packed up their house in preparation.3 Pre-trial decision, above n 1, at [5]–[12].[10] Heath J explains:[9] Aaron visited his parents' home ( near Opunake) on the afternoon of Saturday 31 May 2014. After talking to his father, he told [his partner] that the move had been delayed because the truck that was collecting the furniture of the vendors had not arrived. Some property, including valued boxing books and DVDs that Aaron owned, was taken to Mr Roigard's home the following day. The Crown contends that, at some time before 2 June 2014, Mr Roigard made a deliberate decision to kill his son to avoidthe need to disclose his misappropriation of Aaron's money.[10] On 2 June, Aaron left home at about 8 am, believing he was going to sign papers for the purchase of the farm. That did not happen. Instead, the Crown alleges that Mr Roigard had to concede that there was no property to purchase. The Crown contends that Mr Roigard then killed Aaron and disposed of his body. Aaron has not been seen since he is said to have lefthis parents' property around 1 pm on 2 June 2014.[11] The Crown intends to lead evidence at trial from Mr X. Mr X and Mr Roigard were both in prison in early November 2014. In a statement before Heath J, Mr X said he had discussions with Mr Roigard. In the course of these discussions Mr X said Mr Roigard told him about the way in which he killed Aaron. Mr X said Mr Roigard also told Mr X how he cleaned up afterwards, and that Mr Roigard suggested the body had been moved somewhere else.[12] In a second statement, not before Heath J, Mr X said Mr Roigard had given him further detail about where the body was buried. The Crown advises that the road identified in this second statement covers a large rural area. No body has been found in the area searched to date.[13] We add there were initially issues raised about the admissibility of Mr X'sstatements but these have been resolved. We can proceed on the basis Mr X'sstatements are admissible.The proposed evidence[14] As we have noted, the proposed evidence can be placed into two categories. First, there are statements said to have been made by Mr Roigard about his alleged willingness to kill other family members. Secondly, there are statements said to have been made by Mr Roigard about his ability to hide bodies.[15] In the first category are statements from Phillip Hopkinson, who is a friend of Mr Roigard, and from Teresa Patu who knew Mr Roigard through Mr Hopkinson, her brother.[16] The key aspects of Mr Hopkinson's statements in this category are asfollows:David [Mr Roigard] confided in me at some stage when we were talking.I can't remember exactly where we were or when it was but he said that hehad tried to kill Pam [Mr Roigard's wife] by putting cyanide in her drink.Pam never drank it and David tipped it out before she could drink it.[17] The relevant part of Ms Patu's statement records:He told me he had a list of people whom he would kill before he died. [Mr Roigard had claimed to have cancer.]One of them was his uncle who interfered with him.He said he wouldn't think twice about killing him. [W]hile he didn't specify who was on the list, he didn't even specify whythey were on the list.He told me that they were just people who had wronged him.He didn't say how they were in the wrong, he was only ever specific abouthis uncle being on top of the list.[18] In the second category (statements about hiding bodies) the proposed evidence comes from Mr Hopkinson, Ms Patu and Nicholas Bell, a colleague of Mr Roigard.[19] The key passages from Mr Hopkinson's statement are as follows:I think it was about last year when he told me that he wouldn't have aproblem killing someone.Quite often we'd talk about protecting our daughters.He's quite a violent man. He said "I've got no problem with killing anyone." He told me that he could, or would shoot them. I'm sure that he could cut their throats as well, but I'm not 100 per cent sure on that.He said "I could kill them, I've got places that no one would ever find them." I asked him where but he didn't say he only replied "Ah ha ha".[20] Ms Patu's statement on this aspect records this:I can't remember if he told me or if he told Phil and Tania, but I rememberhim saying something along the lines of that he was able to hide people andthey wouldn't be found.David has also mentioned to me that he was able to hide people and theywouldn't be found. By hide people I believe he meant dead bodies.He told me he had hiding places but never mentioned where these hidings places were.[21] Finally, Mr Bell's statement is as follows:I can't remember the exact sort of things we'd talk about but I know that for example I'd said during one of our conversations "that person needs abullet".It is an expression I'd use if someone had annoyed me or done something I didn't agree with.Dave would say things like "you wouldn't be able to do it that way" and talkabout evidence that would be left behind and various scenarios like that.The pre-trial decision[22] Heath J concluded that the evidence about possible attempts to poison Mrs Roigard using cyanide were not "sufficiently reliable to be used as evidence of a state of mind sufficient to support a murder charge".4[23] The proposed evidence from Ms Patu about Mr Roigard "having a list of people who he would kill before he died" was "too vague" to have any probative value compared with its "undoubted unfairly prejudicial effect".54 Pre-trial decision, above n 1, at [70].5 At [71].[24] The Judge's conclusion was that once these statements about Mr Roigard's intention to kill other people were not admitted, there was "no sufficient link" between the proposed evidence about knowing places to hide bodies and "any live trial issue".6[25] Further, Heath J said, there were "suggestions in the witness statements of [Ms Patu and Mr Bell] that they were doubtful whether Mr Roigard was speakingseriously".7 The evidence had insufficient probative value to outweigh its unfairly prejudicial effect.[26] All of this evidence was ruled inadmissible.Analysis[27] Mr Barr for the Solicitor-General submits the first category of statements is relevant as evidence Mr Roigard had homicidal thoughts about family members, namely, he tried to poison his wife with cyanide and that he had a list of people to kill, at the top of which was his uncle. The submission is that this supports "theexistence of the unusual state of mind that is a feature in the case, that is an allegedwillingness to kill a family member, and provide at least general support for [Mr] X's account".[28] We disagree. Section 7(3) of the Evidence Act 2006 provides that evidence isrelevant "if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding". On the Crown case, Mr Roigard killed his sonto avoid his fraud coming to light. That was the motive. The Crown intends to advance evidence to show there was some forward planning of the killing. This is a reference to evidence Mr Roigard, some three weeks prior to the alleged murder, reported Aaron missing when that was not so. Nonetheless, it is difficult to see how the proposed evidence shows the state of mind on which the Crown relies to prove its case.6 At [73].7 At [73].[29] We agree with Heath J that the authorities relied on by the Crown in which statements made by a defendant prior to the event about killing people have been ruled admissible are distinguishable on their facts.8 The first of these cases,R v Watson involved an apparently relatively motiveless attack, so general statements made by Mr Watson expressing interest in killing other persons were relevant.9 By contrast, the Crown case here involves a specific, purposeful killing occurring indifferent circumstances from those discussed in either of the witnesses' statements.[30] In R v Derrick-Hardie the relevant statements were comments made by theappellant on Facebook. This Court considered the "precise coincidence" betweenwhat he said and the subsequent actions was decisive in assessing probative value.10The Court observed:11 Mr Derrick-Hardie's statements tend to show that on at least two if not three occasions over that five-month period he turned his mind specifically to the situation which later presented itself in July 2011, implying that he had contemplated killing somebody in circumstances sufficiently referable to those in issue as to be germane to his intent. He said he was prepared to usea knife to kill somebody of a different ethnic origin, if the opportunityarose. He went to a social gathering armed with a knife. He knew others would be present. He allegedly used the knife for the very purpose, with the very intention and in the very manner which he had earlier forecast of taking the life of a non-Caucasian person. [31] In Gosnell v R, the victim's body had been dismembered. In the evidence inissue, the witness said Mr Gosnell had told her he wanted to kill someone and, significantly, said the body would first be dismembered.12[32] Finally, in Hudson v R the Supreme Court observed the jury was entitled todecide the appellant's sexual jealously gave him a motive to kill the victim.13 The Court said the propensity evidence in issue, amongst other matters:148 Pre-trial decision, above n 1, at [62]–[65]; R v Watson CA384/99, 8 May 2000; R v Derrick- Hardie [2012] NZCA 316; and Gosnell v R [2014] NZCA 217, [2014] 3 NZLR 168. On appeal, the Crown also rely on Hudson v R [2011] NZSC 51, [2011] 3 NZLR 289.9 R v Watson, above n 8, at [19].10 R v Derrick-Hardie, above n 8, at [13].11 At [13].12 Gosnell v R, above n 8, at [30].13 Hudson v R, above n 8, at [55].14 At [57](b). showed that when affected by sexual jealousy, the appellant had atendency to resort to extreme violence and in this way added to the significance which the jury might place on the sexual jealousy motive.[33] Accordingly, we agree with Heath J that the first category of statements relating to Mr Roigard's alleged willingness to kill other family members isinadmissible. The context in which this proposed evidence arises is both exaggerated bluster and vague. Importantly, it does not reflect at all the Crown case as to what allegedly occurred. It is therefore of marginal relevance and arises in circumstances that give it low probative value, and yet it is extremely prejudicial. This evidence is rightly excluded.[34] We take a different view from that of the Judge on the statements of Mr Hopkinson and Ms Patu in the second category relating to the ability to hidebodies. Aaron's body has not been found. The Crown case, supported by Mr X'sproposed evidence, will be that Mr Roigard removed the body from the farm being careful to cover his tracks and has buried the body somewhere where it is unable to be found. It must be relevant that, in addition to his comments to Mr X, Mr Roigard has talked to not just one but two other people about his ability to hide bodies.[35] Mr Keegan in supporting the Judge's approach says the proposed evidence isso demonstrably fantastical and exaggerated that the risk of it being accepted by the jury should not be taken. He points to other aspects of the evidence of both of these witnesses supporting this. For example, Mr Hopkinson refers to Mr Roigard talking about buying a farm worth about $6 million and about expensive cars he owned that were in storage, such as a Bugatti Veyron for which Mr Roigard is said to have paid $2.8 million. Further, Mr Keegan says that Mr Hopkinson appears to be referring to statements made approximately a year before Aaron went missing and in the context of the two men discussing what they might do to protect their daughters. Finally, hepoints out there is some suggestion that Ms Patu's statement may be hearsay.[36] As Mr Barr accepted, evidence may be so unreliable that it is not admissible. Elias CJ writing for herself and Blanchard J in R v Bain referred to a "continuum".15Elias CJ continued:16Unreliability is itself a ground for exclusion of relevant evidence under s 8 [i]n some cases, however, evidence may be so unreliable that itsidentification or authenticity cannot be resolved.[37] Our assessment is that the proposed statements are not so unreliable as to be inadmissible. Rather, the matters that Mr Keegan relies on are matters for the jury. Aspects of the statements reflect a level of bluster and/or swagger but it is not such that we can say this evidence should not even go to the jury. The evidence wouldprovide support for Mr X's evidence. Further, we do not agree that it is necessary tolink these statements to the admissibility of evidence in the earlier category. Giventhe Crown case and Mr X's evidence, whether or not Mr Roigard was talking abouthis ability to hide bodies is relevant.[38] The context in which Mr Hopkinson says the statements were made does raise some difficulties about how much of the statement should be admitted. That is because what he says about hiding bodies follows on from the discussion in which Mr Roigard is said to have stated he would have no problem killing someone to protect his daughter.17 One option would be to contextualise the statement by reference to the discussion about what the two men would do to protect their daughters. We say no more about this as we see it as a matter for counsel to resolve with the assistance of the trial Judge as necessary.[39] Finally, Ms Patu's statement does initially suggest it is hearsay. However,subsequently she says she is recording a discussion she had herself. If necessary, this may need to be resolved in the course of the trial.15 R v Bain [2009] NZSC 16, [2010] 1 NZLR 1 at [51].16 At [51].17 For this category of evidence, the Crown application in the High Court exhibited only the statements made by Ms Patu and Mr Bell although the application about the admissibility of Mr Hopkinson's statement did refer to this part of the statement.[40] We consider the evidence of Mr Hopkinson and Ms Patu, to the extent it relates to statements said to have been made by Mr Roigard about his ability to hide bodies, is admissible. The appeal is allowed to this extent.[41] We agree, however, with the Judge that Mr Bell's evidence is inadmissible. Itis simply too generalised to be relevant.The bail appeal[42] Heath J declined bail on the basis there was a cause for concern about thesafety of witnesses. The Judge said he was "not persuaded that there is no materialrisk of the type to which s 9A of the [Bail] Act refers".18[43] Section 9A of the Bail Act 2000 applies because Mr Roigard has beencharged with murder. The section provides that a person in Mr Roigard's positionmust satisfy the Judge that bail should be granted.19 In particular, s 9A(4) states: the defendant must satisfy the Judge on the balance of probabilities thatthe defendant will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person.[44] Section 9A(5) makes it clear that "the need to protect the safety of the public and, where appropriate, the need to protect the safety of any particular person orpersons are the primary considerations".[45] Ms Woodcock, who argued this appeal, made two primary submissions. First, she said the Judge did not apply the balance of probabilities test in s 9A(4) but, rather, required Mr Roigard to show there was no material risk. Second, it is submitted the Judge did not sufficiently scrutinise the other matters relied on by the Crown such as the potential for interference with witnesses. For example, the point is made that Mr Roigard has no history of any violent criminal offending. Further, Ms Woodcock notes Mr Roigard has had monitored and unmonitored direct contact with his wife and daughter, both of whom are Crown witnesses, whilst on remand in custody.18 Bail decision, above n 2, at [22].19 Bail Act 2000, s 9A(3).[46] We consider that, when read in context, it is clear the Judge has applied the correct test. Heath J acknowledged earlier in his decision that the present applicationfor bail "is more finely balanced" than was the case when the Judge earlier declinedbail.20 Nonetheless, he said he had decided not to grant bail because the "factors raised by the Crown in relation to the risk of safety to others justifies that course".21In the earlier decision declining bail the Judge referred to the balance of probabilities.22[47] In any event, we agree with Heath J's decision. Mr Roigard would be bailedto an address in Manaia with his wife and daughter. He would be subject to electronic monitoring. But there have been threats, albeit veiled, made in relation to witnesses. Given the jeopardy Mr Roigard faces, and the evidence on which the Crown relies, bail was appropriately declined.Result[48] The Solicitor-General's application for leave to appeal is granted.[49] The appeal is allowed in part. The evidence of Phillip Hopkinson and of Teresa Patu about hiding bodies is admissible.[50] Mr Roigard's appeal against the decision to decline him bail is dismissed.[51] To meet fair trial considerations we make an 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.Solicitors:Crown Law Office, Wellington for Appellant in CA258/2015 and Respondent in CA457/201520 Bail decision, above n 2, at [18].21 Bail decision, above n 2, at [18].22 R v Roigard [2014] NZHC 2914 at [18].