CAMPBELL-JOYCE v R [2016] NZCA 192

CAMPBELL-JOYCE v R [2016] NZCA 192 [10 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 ZEALANDCA19/2016[2016] NZCA 192BETWEEN JACKSON LEO WIREMU CAMPBELL-JOYCEAppellantAND THE QUEENRespondentHearing: 13 April 2016Court: French, Asher and Williams JJCounsel: S J Zindel and A N Gulbransen for AppellantP D Marshall for RespondentJudgment: 10 May 2016 at 3.30 pmJUDGMENT OF THE COURTA Leave to appeal is granted.B The appeal is dismissed.C 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 Williams J)Introduction[1] The appellant, Mr Campbell-Joyce, seeks leave to appeal against a pre-trialruling on the admissibility of propensity evidence made by Judge Ruth in the NelsonDistrict Court.1[2] Mr Campbell-Joyce faces nine counts of offending against his former partner.These include six counts of breaching a protection order, one of male assaults female,one of threatening to cause grievous bodily harm, and one of threatening to kill.[3] The propensity evidence relates to two earlier convictions for breaching thesame protection order.Background[4] Mr Campbell-Joyce and the complainant were in a relationship and have twochildren together.[5] On 20 February 2014 the Family Court at Nelson issued a without noticeprotection order against Mr Campbell-Joyce and in favour of the complainant. A finalorder was made effective following service on 20 June 2014. Conditions included thatMr Campbell-Joyce was not to physically abuse the complainant or to threaten to doso, he was not to harass or behave in an intimidating manner towards the complainantso as to amount to psychological abuse, nor could he enter or remain on land occupiedby the complainant without her express consent.1 R v Campbell-Joyce [2016] NZDC 411.The current offending[6] The current offending is alleged to have occurred between 1 June and 6 July2015. It is necessary to give a brief summary of the alleged circumstances surroundingeach charge before turning to a brief description of the proposed propensity evidence.[7] Charge 1 alleges breach of protection order on an occasion during the monthof June 2015. On that occasion Mr Campbell-Joyce is alleged to have abused thecomplainant verbally at her home. He refused to leave when requested and thecomplainant pushed him outside, locking the door. He threatened to smash the glassdoor. He ran at it, giving the impression he would break it. At the end of the incident,and as Mr Campbell-Joyce left the property, he looked at the complainant and twicesaid to her "I will stab you in the throat". This threat gives rise to charge 2 —threatening to do grievous bodily harm.[8] On a different date in June the Crown alleges Mr Campbell-Joyce was at thecomplainant's home. He refused to leave when asked, giving rise to charge 3 —breach of protection order. He punched the kitchen table, breaking the complainant'ssunglasses thereby. He then picked up a metal stool and, it is alleged, held it like abaseball bat. He stepped towards the complainant as if to hit her with it. He eventuallyput the stool down without striking the complainant. This gives rise to charge 4 —male assaults female.[9] On 1 July 2015 the pair were engaged in an argument at the complainant'shouse. The complainant screamed at Mr Campbell-Joyce to get out. As he left he saidto her "I will kill you". This gives rise to charge 5 — threatening to kill.[10] Mr Campbell-Joyce returned to the complainant's home between 4 and 5 July2015. He smoked a cigarette inside and the complainant told him to stop doing so.This caused, it is alleged, a torrent of verbal abuse giving rise to charge 6 — breach ofprotection order. The complainant directed him to leave but he refused, giving rise tocharge 7 — breach of protection order. Further threats were made on this occasionwith respect to the complainant's property, a physical confrontation occurred and thecomplainant, it is alleged, pushed Mr Campbell-Joyce outside and locked the door.[11] Charge 8 relates to a series of abusive text messages Mr Campbell-Joyce isalleged to have sent the complainant on 5 July 2015 — a further breach of protectionorder. And charge 9 relates to an abusive phone call on 6 July 2015 — another breachof protection order.The proposed propensity evidenceThe first propensity incident[12] Fifteen months earlier on 28 March 2014 (five weeks after the Family Court atNelson had issued a temporary protection order against Mr Campbell-Joyce), thecomplainant drove to Mr Campbell-Joyce's home to drop off his vehicle. It hadrecently been repaired. There was an argument between the pair. Mr Campbell-Joycethreatened to knock the complainant out. He then agreed to take her home but insteadtook her to a mutual friend's address where the argument continued. The complainantasked Mr Campbell-Joyce to leave, she turned and went into the house but he followedher. He put his body in the doorway to prevent the door being closed. The complainanthit Mr Campbell-Joyce. He drove away but came back. He ran at the complainantwith his fist in the air. Mr Campbell-Joyce then pushed the complainant three times.The last push knocked her to the ground, breaking her right wrist, bruising her leftankle and scratching her right knee.[13] As a result of these events, Mr Campbell-Joyce was convicted of breaching theprotection order and injuring with reckless disregard. He was sentenced by JudgeZohrab in the Nelson District Court to 350 hours' community work and one yearintensive supervision.2 He was given a final warning.[14] The temporary protection order was made final on 27 May 2014 and becameeffective when served on Mr Campbell-Joyce on 20 June 2014.The second propensity incident[15] In August or September 2014 Mr Campbell-Joyce moved into thecomplainant's home. After a week or so the complainant asked him to leave. She2 New Zealand Police v Campbell-Joyce DC Nelson CRI-2014-042-640, 21 July 2014.renewed the request on 11 September. Mr Campbell-Joyce eventually complied thatday but returned a few hours later, walking into the house and laying down in theirson's bedroom. He was again asked to leave. He began slamming doors and yellingand he said he would not leave until the police arrived. He did eventually leave, butlater returned. He began taking food from the pantry before, confronted by thecomplainant, he again left.[16] He returned the following day and took a dog roll from the fridge. Thecomplainant objected. An argument developed. The complainant made numerousrequests for Mr Campbell-Joyce to leave, and she eventually pushed him out the backdoor.[17] In respect of that incident, Mr Campbell-Joyce was convicted on 4 November2014 of breach of protection order and sentenced by Judge Tuohy in the NelsonDistrict Court to three months' imprisonment.3The Judge's ruling[18] Judge Ruth accepted that there were some differences between the propensitybehaviour in the two incidents summarised and the current allegations againstMr Campbell-Joyce.4 But the Judge considered the differences were not significant.The "pattern of behaviour" in the propensity examples was, the Judge considered,sufficiently similar to the allegations and so close in time that it would be inappropriateto prevent the Crown from referring to those prior incidents in evidence.5 Because thecredibility of the complainant was "very much at the heart of the case", Judge Ruthwas of the view that it would defy commonsense to prevent the complainant frommentioning them at trial.63 New Zealand Police v Campbell-Joyce DC Nelson CRI-2014-042-1974, 4 November 2014.4 R v Campbell-Joyce, above n 1, at [56].5 At [57].6 At [53].Analysis[19] The Judge was clearly correct.[20] The evidence sought to be admitted is propensity evidence aboutMr Campbell-Joyce, the defendant in the proceeding, and it must therefore passthrough the gateway in s 43(1) of the Evidence Act 2006 in order to be admissible.The evidence must relate to a relevant issue, and its probative value must outweighthe risk of any unfair prejudicial effect on Mr Campbell-Joyce that it might otherwisecarry. The factors in subs (3) may be considered where relevant but those factors areneither a closed list nor a mandatory one. In the end, it is a simple matter of analysinglegitimate probative value against unfair prejudicial effect.[21] Mr Zindel argued the 28 March propensity incident is not sufficiently similarto the current offending because:(a) it did not involve a weapon, whereas charge 4 involved a metal stoolbeing held like a baseball bat; and(b) it involved an actual push and injury, whereas Mr Campbell-Joyce putthe metal stool down in the charge 4 context.[22] Mr Zindel argued there is also insufficient similarity in the 11 and12 September 2014 offending: there was door slamming and yelling in that offendingbut this is not a feature of the current allegations.[23] In addition, Mr Zindel argued the Judge was wrong to conclude that violenceof this nature in the home was relatively unusual in terms of s 43(3)(f). This was, itwas argued, to paint with too broad a brush. Any previous similar offending would beunusual by this measure, on the basis that all offending is relatively unusual.[24] These submissions misunderstand the nature of the propensity evidence soughtto be admitted in this case. As this Court explained in Perkins v R, evidence of othermisconduct by a defendant against the same victim is not orthodox similar factevidence.7 It does not rely upon standard "unlikely coincidence" reasoning. Rather,the rationale for its admission rests on its supporting a conclusion that the relationshipbetween the protagonists is conflictual and that the defendant deals with that conflictby expressing hostility and violence toward the complainant.8[25] The crucial element is that the propensity evidence involves broadly similaroffending against the same person when they are in disagreement. That is,Mr Campbell-Joyce has already behaved toward the complainant with hostility andaggression and he has already been violent or threatened violence toward her. Suchevidence will of its nature be highly relevant to the question of whether Mr Campbell-Joyce committed the offences as charged even if the similarity is broad rather thanspecific and even if the behaviour is not at all unusual.[26] It will not be necessary to demonstrate close match or unusual act fact patternsin the context of same victim offending. Such a requirement would miss the point ofthis kind of propensity evidence. The relevant propensity arises from what theevidence says about the nature of the relationship between the protagonists and inparticular about the triggers within it to abusive, violent or threatening behaviour onthe part of the appellant.[27] It also follows that the proposed propensity evidence is prejudicial to theappellant in an entirely relevant way. That is, it says nothing detrimental to theappellant that is not also relevant to the nine counts he faces. In short, it carries nounfair prejudice.9 The standard propensity directions will provide ample protection tothe appellant's fair trial right.[28] Leave to appeal is granted. The appeal is dismissed. The propensity evidenceis admissible.[29] 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 internet7 Perkins v R [2011] NZCA 665 at [20].8 Perkins v R, above n 7, at [20].9 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [57(d)].or other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Zindels, Nelson for AppellantCrown Law Office, Wellington for Respondent