TIHI V R [2016] NZCA 211

TIHI V R [2016] NZCA 211 [20 May 2016]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.IN THE COURT OF APPEAL OF NEW ZEALANDCA102/2016[2016] NZCA 211BETWEEN AKUHATUA TIHIAppellantAND THE QUEENRespondentHearing: 3 May 2016Court: Randerson, Stevens and French JJCounsel: P J Shamy for AppellantM J Lillico for RespondentJudgment: 20 May 2016 at 10.00 amJUDGMENT OF THE COURTA Leave to appeal is granted.B The appeal is allowed.C The order admitting evidence of statements made by Judge Walkeridentified at [6] and [7] of this judgment, is quashed.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] Mr Tihi is accused (along with two others) of murdering Mr Parata, a fellowinmate at Christchurch Men's Prison. He admits being involved in the beating whichled to Mr Parata's death.1 The sole issue at Mr Tihi's trial will be whether he possessedmurderous intent (or knew there was a real risk that one of his co-accused possessedmurderous intent). The Crown seeks to lead evidence of statements of Judge Walker,made when sentencing Mr Tihi in 2010 for a previous offence, to the effect that attackson the head "could be regarded as life-threatening". Mander J ruled this evidenceadmissible.2 Mr Tihi seeks leave to appeal against this pre-trial ruling.[2] The ruling is challenged on the basis that the Judge erred in holding that theevidence was admissible because:(a) the evidence is not relevant, because there is no evidence that Mr Tihiheard or understood the comments made by Judge Walker, and noevidence that these comments were operating in Mr Tihi's mind at thetime of the assault;(b) the statements are hearsay as Judge Walker is not a compellable witnessand thus the basis of his comments at sentencing are not able to be thesubject of evidence or cross-examination;(c) the evidence is highly prejudicial as Mr Tihi will likely have to give uphis right to silence in order to explain his understanding ofJudge Walker's comments. This will open him up to cross-1 Mr Shamy confirmed Mr Tihi will make a formal admission that he was present in the cell whenan unlawful act was committed, and would enter a guilty plea to a charge of manslaughter.2 R v Reuben [2016] NZHC 98 [Pre-trial ruling].examination, and it may also force him to give prejudicial propensityevidence about his previous convictions; and(d) the prejudicial effect of the evidence cannot be mitigated in the wayproposed by Mander J.3Background[3] Messrs Tihi, Reuben and Betham were all serving prisoners at ChristchurchMen's Prison, detained in the same unit as the deceased, Mr Parata. At around 9.22 amon 25 March 2015, CCTV footage from the prison shows the three men enteringMr Parata's cell for varying lengths of time. Mr Tihi was in the cell for the longestperiod of time, around one and a half minutes. At 10.06 am Mr Parata was found inhis cell. After unsuccessful medical intervention he died on 30 March 2015 fromextensive blunt force injuries to the head, face and neck as described in more detail inthe pathology report of Dr Sage.[4] Messrs Tihi, Reuben and Betham are all charged with murder.4 The Crown'scase is that they had a common intention to physically attack Mr Parata and to assisteach other for that purpose, and each must have appreciated the real risk that such anattack might result in Mr Parata's death. To succeed in a murder conviction, the Crownmust prove one or more of them had murderous intent, either in terms of intending tocause Mr Parata's death or of causing him bodily injury known to be likely to causedeath and being reckless as to whether death ensues.The judgment under appeal[5] In a pre-trial application under s 101 of the Criminal Procedure Act 2011 (CPA)the Crown sought to lead propensity evidence against Mr Tihi. This evidence relatedto three earlier assaults admitted or alleged to have been committed by Mr Tihi.Associated with one of these assaults was a statement made by Judge Walker insentencing Mr Tihi in 2010.3 Set out at [11(c)] below.4 Under s 172 of the Crimes Act 1961.The contested evidence[6] In October 2010 Mr Tihi pleaded guilty to a charge of wounding with intent tocause grievous bodily harm (the Nelson assault). Mr Tihi had attacked thecomplainant by striking him, kicking him and jumping off the bonnet of a car onto thevictim's head. The assault caused intracranial bleeding and multiple facial fractures.Judge Walker gave a sentencing indication in which he stated:Secondly, the injuries were very serious and could be regarded as life-threatening, and have had a serious impact on the victim's life. The thirdfactor is the concentration of the attack on the victim's head with all the risksthat that entails, many of those risks having been realised in this case, [7] These remarks were repeated when Mr Tihi was sentenced by Judge Walkerapproximately one month later. The Crown wished to lead evidence of both theoffending and the statements of Judge Walker.[8] The Crown also sought to lead CCTV evidence of two further assaults. First,in March 2011, while Mr Tihi was on remand for the Nelson assault, he assaulted afellow inmate. Mr Tihi kicked the victim in the face and knocked him out. Second,in February 2015, Mr Tihi punched a fellow inmate in the head at Christchurch Men'sPrison.Pre-trial ruling[9] Mander J ruled that the evidence of Mr Tihi's involvement in three priorassaults was inadmissible on a propensity basis. The Judge accepted that the proposedevidence had probative value in identifying Mr Tihi as a person with a propensity toparticipate in this type of short, unexpected and severe physical assault aimed at thehead.5 But, the value of the evidence was in the identification of Mr Tihi as a personwho participated in the assault on Mr Parata. As this was no longer a live issue, theprobative value of the evidence was significantly reduced.6 The probative value thusdid not outweigh the risk that the evidence would have an unfairly prejudicial effecton Mr Tihi.5 Pre-trial ruling, above n 2, at [26].6 At [30].[10] In terms of the mens rea of the offence, Mander J did not think it logicallyfollowed that Mr Tihi's involvement in prior physical violence not involving the deathof the victim would necessarily inform him of the risk of death. However, JudgeWalker's statements at sentencing for the Nelson assault were regarded as relevant.[11] Mander J treated the statements as "no more than an inference to be drawnfrom the fact that Mr Tihi was present when on an earlier occasion the potentially life-threatening risks associated with targeting a victim's head were traversed".7 The Judgeheld that evidence of information provided or statements made to a defendantregarding the consequences of particularly violent actions is evidence upon which ajury may legitimately rely in assessing that defendant's state of mind or knowledge ofconsequences.8 Mander J was satisfied that Judge Walker's statements wereadmissible because:9(a) the nature and effects of the Nelson assault were comparable to thepresent case;(b) the statements were made on two separate occasions, both in thepresence of Mr Tihi, and when sentencing Mr Tihi the Judge directlyaddressed his comments to Mr Tihi; and(c) potential prejudice to Mr Tihi is mitigated by the fact that:10(i) a description of the Nelson assault need only traverse the barefacts;(ii) the jury will already be aware that Mr Tihi is a sentencedprisoner; and(iii) the jury will be aware of Mr Tihi's admitted culpability inrelation to the physical assault, and the issue of mens rea can7 At [42].8 At [43].9 At [45].10 At [45(c)].readily be isolated for the jury's consideration. The legitimaterelevance and limited way the evidence may be used is capableof clear directions, effectively reducing potential prejudicialinfluence.[12] Accordingly, the evidence of Judge Walker's statements could be led by theCrown, along with a limited description of the attack and the injuries caused. Mander Jtherefore made an order pursuant to s 101 of the CPA.11The test for admissibility[13] Although Mander J referred to Judge Walker's statements under the broadheading of "proposed propensity evidence", we consider the preferable basis foranalysis is as circumstantial evidence from which an inference might be drawn aboutMr Tihi's knowledge at the relevant time. Knowledge of a particular fact is notpropensity evidence.12 Propensity evidence is evidence that tends to show a person'spropensity to act in a particular way or to have a particular state of mind, beingevidence of acts, omissions, events or circumstances with which a person is alleged tohave been involved.13 Here, the evidence that Mr Tihi was present when Judge Walkermade statements regarding the life-threatening consequences of attacks on the headdoes not show a propensity to have a state of mind that attacks to the head may wellbe fatal. Rather the evidence bears on his knowledge of that fact and hence hisappreciation of the risks of an attack to Mr Parata's head. We therefore see theevidence as simply circumstantial evidence from which the jury could draw aninference that Mr Tihi did in fact have knowledge of the consequences of an attack tothe head.[14] In any case, we are satisfied nothing turns on the fact Mander J classified theevidence as propensity evidence. For present purposes there is a key issue under ss 43(admissibility of propensity evidence) and 8 (general admissibility) of the Evidence11 At [46].12 As discussed by this Court in Rei v R [2012] NZCA 398, (2012) 25 CRNZ 790 at [34].13 Evidence Act 2006, s 40(1)(a).Act 2006 (common to both sections), namely whether the probative value of theevidence outweighs its prejudicial effect.14[15] We consider the admissibility of evidence of Judge Walker's statements turnson:(a) whether the evidence is relevant, and thus admissible under s 7 of theEvidence Act; and(b) whether the evidence should be excluded because its probative value isoutweighed by the risk that the evidence will have an unfairlyprejudicial effect on the proceeding under s 8 of the Evidence Act. Inthis context, the right of Mr Tihi to offer an effective defence must betaken into account.15[16] Mr Shamy for Mr Tihi tentatively suggested the statements by Judge Walkerare hearsay, because they are statements made by a person other than a witness.16 Ifthis were the case, then the admissibility would be required to be dealt with by thehearsay provisions.17 However, the statements are not hearsay because the evidenceis not being offered to prove the truth of its contents.18 It is merely being offered toprove that the statements were spoken in Mr Tihi's presence. The admissibility istherefore not governed by the hearsay provisions, and falls to be determined under thegeneral admissibility provisions.14 Evidence of propensity may be offered under s 43(1) of the Evidence Act only if the evidence "hasa probative value in relation to an issue in dispute in the proceeding which outweighs the risk thatthe evidence may have an unfairly prejudicial effect on the defendant". Under s 8(1) evidencemust be excluded "if its probative value is outweighed by the risk that the evidence will have anunfairly prejudicial effect on the proceeding".15 Evidence Act, s 8(2).16 Judge Walker is unable to be a witness, because a judge is not compellable to give evidence inrespect of their conduct as a Judge: Evidence Act, s 74.17 Evidence Act, s 17.18 See the definition of hearsay statement under s 4(1) of the Evidence Act.Submissions on appealRelevance[17] Mr Shamy submits that the evidence of Judge Walker's statements is notrelevant. He argues there is no evidence that Mr Tihi even heard, let alone understood,the statement made by Judge Walker. There is also no evidence that the commentswere operating in Mr Tihi's mind as he participated in this assault some four yearslater. Mr Shamy submits there is a significant difference between a defendant beingon notice of a particular consequence via a comment by the Judge and having theknowledge themselves. What must be proved beyond reasonable doubt is that at thetime of Mr Tihi's participation he had the relevant murderous intent; the fact that hehad notice or even knowledge of the consequences in a generic way does not assist inproving on this occasion that he had specific intent. Mr Shamy submits that when thisis coupled with the fact the statement was made four years ago to Mr Tihi, a "man oflimited intellect and maturity", the evidence of the statements is irrelevant.Probative value and prejudicial effect[18] Mr Shamy further submits that even if the evidence were relevant, its probativevalue is minimal. The purport of the evidence is consistent with a Crown submissionthat attacks to the head can be fatal. This is well-known, and the notoriety of such afact may be used to support an inference of knowledge or intent. But, it is submitted,the Judge's comments are not appropriate as the basis for an inference of knowledge,and would carry no more weight than, for example, an article in the newspaper might.Mr Shamy further submits that the fact there is no evidence Mr Tihi heard orunderstood these comments also weakens the probative value of the evidence.[19] Against this low probative value, Mr Shamy submits the prejudicial value isoverwhelming because it:(a) effectively places a burden on Mr Tihi to give evidence as to hisunderstanding of the Judge's comments, and forces Mr Tihi tointroduce the evidence of the two further assaults committed afterJudge Walker made these statements in which Mr Tihi targeted hisvictim's head but the victim did not die;(b) comes from a Judge and will therefore carry great weight in the jury'seyes. It is submitted there are also policy arguments against allowinga Judge's comments in sentencing to be used against a defendant in afuture case; and(c) requires the facts of the Nelson assault to be traversed in detail so thatthe jury can consider the similarities and differences, and this leads tothe attendant prejudice that Mander J highlighted when considering theadmissibility of the previous assaults.Our analysisRelevance[20] Section 7(2) of the Evidence Act provides that evidence that is not relevant isnot admissible in a proceeding. Evidence is relevant in a proceeding if it has atendency to prove or disprove anything that is of consequence to the determination ofthe proceeding.19 There must be some logical connection between the evidence andthe fact it is said to prove.20 The bar for relevance is set relatively low and is not anexacting test. As the Supreme Court in Wi v R noted, the definition must accommodateall kinds of evidence and in particular circumstantial evidence, individual pieces ofwhich are often of slender weight in themselves.21 The question is whether theevidence has some, as in any, probative tendency, not whether it has sufficientprobative tendency.22[21] Here, we agree the critical issue at trial will be whether, when he enteredMr Parata's cell with his co-accused, Mr Tihi had murderous intent. It is likely theCrown will rely on murder as defined in s 167(b) of the Crimes Act 1961: that theoffender means to cause the person killed any bodily injury that is known to the19 Evidence Act, s 7(3).20 R v Bain [2009] NZSC 16, [2010] 1 NZLR 1 at [42].21 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].22 Ibid.offender to be likely to cause death, and is reckless whether death ensues or not. Thus,evidence going to Mr Tihi's knowledge of the consequences of the bodily injury heinflicted will be relevant in this case.[22] Actual knowledge may be inferred circumstantially from the fact that a partyhad a reasonable means of knowledge.23 An analogy might be drawn with the Crownseeking to lead evidence in a "one-punch" murder or manslaughter trial that theaccused has seen or Googled news stories about, or otherwise become aware of, thefatal consequences of a punch.24 Such evidence would have some relevance as to theoffender's state of mind regarding the consequences of such conduct.[23] The facts from which the Crown seek to have inferences drawn from do noteach need to be proved beyond reasonable doubt; only the essential elements of thecharge need to be proved to this standard.25 Thus the evidence of Judge Walker'sstatements does not, on its own, need to constitute proof beyond reasonable doubt.Rather, it merely has to have a tendency to prove or disprove anything that is ofconsequence to the determination of the proceeding. There is no doubt Mr Tihi waspresent when Judge Walker, on two occasions, stated that an attack to the head gaverise to risks including life-threatening injuries. The statements were specificallyrelated to an attack that Mr Tihi had carried out on the head of the victim. The Judge'swords at sentencing were directed to Mr Tihi personally. From these facts, aninference can be drawn that Mr Tihi had knowledge that attacks on the head couldresult in life-threatening injuries and therefore could lead to someone's death. Suchevidence goes to the question of whether Mr Tihi had murderous intent in terms ofcausing him bodily injury known to be likely to cause death and being reckless as towhether death ensued or not.[24] We therefore consider that, in the absence of evidence to the contrary, thestatements of Judge Walker could give rise to an inference that Mr Tihi had knowledgethat fatal consequences may follow from an assault to a person's head. There is a clear23 Roderick Bagshaw "Physical conditions, states of mind and emotions" in Hodge M Madek (ed)Phipson on Evidence (18th ed, Sweet & Maxwell, London, 2013) 481 at [16-05].24 See R v Lambaditis [2015] NSWSC 746 at [84] where the Court, at a sentencing hearing followinga guilty plea, referred to the fact that the defendant agreed he had seen publicity in the media abouta similar case as this was relevant to the seriousness of the assault.25 See Thomas v R [1972] NZLR 34 (CA) at 38; and R v Puttick (1985) 1 CRNZ 664 (CA) at 647.link to the question of whether, when Mr Tihi caused bodily injury to Mr Parata, heknew that it was bodily injury likely to cause death. The evidence has some probativetendency to prove an issue that is of consequence to the determination of the trial. Itis therefore relevant and potentially admissible under s 7 of the Evidence Act.Probative value versus prejudicial effect(a) Probative value[25] Given that the evidence is relevant, it must clearly have some probative value.The strength of this probative value, however, must not be outweighed by theprejudicial effect on the proceeding.26 As noted by Elias CJ in R v Bain, the relevancetest determines whether evidence could relate to an issue while exclusion under s 8 isconcerned with "whether the connection between the evidence and proof is 'worth theprice to be paid by admitting it in evidence'".27[26] Mr Lillico for the Crown submits the probative value is strengthened by thefact that:(a) the Nelson assault and the present offending are comparable becausethey both involved manual assault which targeted the heads of thevictim and caused serious head injuries as a result. As a result of anattack similar to the present he was told that his actions could havegiven rise to life-threatening injuries. From this the jury could moreeasily infer that when Mr Tihi was assaulting Mr Parata he knew thatthe bodily injury he was inflicting was likely to cause death; and(b) the statements were made twice, given in the context of his offending,and were directed to him in terms of his sentencing. They thereforecarry more weight than a general warning such as that given in the newsmedia.26 Evidence Act, s 8(1)(a).27 R v Bain, above n 20, at [62] (footnote omitted).[27] We consider Judge Walker's statements have limited probative value.Arguably they carry more probative weight than evidence that the appellant had seena news story on the issue or evidence that the issue is a notorious fact. However, theevidence merely gives rise to an inference that Mr Tihi was made aware that attacksto the head could cause death. Essentially the probative value is to provide theprosecution with some rebuttal for a defence suggestion that Mr Tihi did not appreciatethat his actions were likely to cause death. It does not carry a great deal of weight interms of allowing the jury to determine whether, at the time of inflicting the bodilyinjury to Mr Parata, Mr Tihi actually knew that that bodily injury was likely to causedeath. The statements were made over four years ago and it is reasonably possibleany impact they may have had at the time may have evaporated or diminished. Thereis no knowing what other factors have been operating on Mr Tihi's mind andknowledge in the meantime.(b) Prejudicial effect[28] In turning to the prejudicial nature of the evidence, we are satisfied there arevarious ways in which the evidence may have an unfairly prejudicial effect on theproceedings. The concept of "unfairly prejudicial effect" typically refers to the dangerthat the trier of fact will:28(a) give evidence more weight than it deserves in a proceeding;(b) speculate inappropriately about the meaning or significance ofevidence;(c) be misled by evidence; or(d) use the evidence for an illegitimate purpose.[29] Mr Shamy suggested that the prejudicial effect of the evidence will be to forceMr Tihi to give evidence. This Court in W (CA584/2012) v R held, however, that aquandary for an accused in deciding whether or not to give evidence cannot claim28 R Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Thomson Reuters,Wellington, 2014) at [EV8.02].status as a form of unfair prejudice.29 Any evidence introduced by the prosecutionwill always give rise to difficult decisions for the defendant as to how to deal with it,including the decision whether or not to give evidence. Here, Mr Tihi giving evidenceis only one possible way to deal with this evidence; it could also be the subject ofdefence counsel comment that it does not prove the requisite mens rea, or evidencecould be introduced regarding Mr Tihi's alleged "limited intellect or maturity" tonegate the influence of Judge Walker's comments. We do not accept Mr Tihi is"compelled" to give evidence and has his right to silence undermined.[30] The fact the statements come from a judge is a relevant consideration. Therecan be no blanket rule regarding whether it will necessarily be unfairly prejudicial toallow a Judge's statements to be admitted as circumstantial evidence. TheEvidence Act does not prohibit such evidence being admissible. Rather, s 139 detailshow evidence of convictions, acquittals and other judicial proceedings may be givenif otherwise admissible.30 There is thus no general policy rule that statements by ajudge in a previous sentencing cannot be admitted as evidence for a later offence.Here, the jury will already be aware that Mr Tihi is a sentenced prisoner, so there is adegree of prejudice arising in any event.[31] The real problem with this evidence is the fact that the background of theNelson assault will need to be introduced to put the statements in context. Mander Jhad already determined that the propensity evidence of the Nelson assault should notbe led by the Crown. Such evidence was regarded as having no probative value to thereal issue of the case (Mr Tihi's mens rea). To the extent that it may have had residualrelevance, this was outweighed by the risk that the evidence would have an unfairlyprejudicial effect on Mr Tihi. In reaching that conclusion, Mander J was mindful thata Judge must consider whether the evidence is likely to unfairly predispose the fact-finder against the defendant and result in the fact-finder tending to givedisproportionate weight to the propensity evidence in reaching the verdict.3129 W (CA584/2012) v R [2012] NZCA 516 at [24].30 In particular, s 139(1)(c) of the Evidence Act states that evidence of an order or judgment of acourt and the nature, parties, and particulars of the proceeding to which the order or judgmentrelates may be given.31 Pre-trial ruling, above n 2, at [32].[32] We disagree with the view of Mander J that introducing the essential facts toset the scene for Judge Walker's comments would not have the same unfairlyprejudicial effect. As mentioned, in holding the statements of Judge Walkeradmissible, Mander J considered that the prejudicial effect was limited because:32(a) the description of the Nelson assault need only traverse the bare facts;(b) presenting the fact that Mr Tihi is in prison is inevitable; and(c) Mr Tihi has already accepted he physically participated in the attackand therefore accepts he is guilty of manslaughter.[33] We consider the factual background will at least need to include the similaritiesbetween this present offending and the Nelson assault, because this is what makesJudge Walker's statements relevant. Mr Lillico submitted that the summary of factswould be placed before the jury. The Nelson attack was directed to the head andcaused serious, potentially life-threatening, injuries. It will be clear to the jury that hehas been involved in violent conduct in the past and the fact Mr Tihi has done it againwill undoubtedly create a strongly prejudicial impression of Mr Tihi. There is thus ahigh risk that the evidence will be used illegitimately and that the jury will place moreweight on the evidence than it deserves, despite any cautionary judicial directions tothe contrary.[34] Mr Lillico accepts there is a risk the jury will leap from the evidence of theinvolvement in the Nelson assault to finding Mr Tihi had murderous intent simplybecause of being "a bad person", but submits the danger of this already exists becauseof his inmate status and admitted guilt in terms of Mr Parata's manslaughter. However,we consider the risk is arguably much greater if the jury is made aware of the fact thatMr Tihi has previously committed a serious assault and clearly has not "learnt hislesson" whilst in prison as he has gone on to commit a similar assault again (with moreextreme consequences). The jury may also illegitimately reason that he "must have"intended to kill because of the escalation in the outcome from the Nelson assault, ratherthan focusing on whether the Crown has proved beyond reasonable doubt that Mr Tihi32 At [45(c)].knew his actions were likely to cause death. The same prejudicial effect of introducingthe evidence of the assault thus arises in allowing the prosecution to lead evidence ofJudge Walker's statements and the factual narrative giving rise to them.Conclusions on admissibility[35] We consider the probative nature of the evidence is low. We also consider therisk of unfairly prejudicial effect is high for the reasons we have outlined. We considerthat Mander J erred in ruling the evidence of Judge Walker's statements wasadmissible. The probative value is outweighed by the high risk of an unfairlyprejudicial effect on the proceedings and we consider the evidence is thereforeinadmissible under s 8 of the Evidence Act.[36] In reaching this conclusion, we have approached the balancing test as mattersstand presently. If, however, during the course of the trial Mr Tihi or his counsel wereto put squarely in issue matters relating to the remarks made by Judge Walker, it wouldbe open to the Crown to make a further application in respect of the admissibility ofthe evidence. For example, if it were to be suggested Mr Tihi had never heard thatblows to the head could be fatal.Result[37] Leave to appeal is granted.[38] The appeal is allowed.[39] The order admitting evidence of statements made by Judge Walker identifiedat [6] and [7] of this judgment is quashed.[40] For fair trial reasons, we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent