[2011] NZSC 51
Elias CJ, Blanchard, McGrath, William Young and Anderson JJ
SC 100/2010
IN THE SUPREME COURT OF NEW ZEALAND
Appeal against Court of Appeal decision dismissing appellant's appeal against conviction – appellant convicted of murder and sentenced to life imprisonment — whether evidence of appellant's previous violent assaults should have been admitted as propensity evidence under s43 Evidence Act 2006 — whether evidence offered by prison inmates should have been excluded as unreliable — whether judge's directions under s122 (judicial directions about evidence which may be unreliable) were sufficient — whether there should be a standard form direction on prison confession evidence.
G J King C J Milnes for Respondent
M D Downs for Crown
(Given by William Young J)
| Para No | |
| Introduction | [1] |
| An overview of the case | [3] |
| The alleged prison admissionsr | [17] |
| Section 122 of the Evidence Act 2006 | [17] |
| The evidence in question | [18] |
| Some preliminary comments | [26] |
| The Judge's directions | [28] |
| What happened in the Court of Appeal | [30] |
| The appellant's argument in this Court | [32] |
| Our evaluation: overview | [33] |
| Exclusion? | [35] |
| Stronger directions? | [39] |
| The propensity evidence | [45] |
| Section 43 of the Evidence Act | [33] |
| The approach taken by Ronald Young J | [46] |
| The admissibility of the evidence | [53] |
| The Judge's directions | [60] |
| Disposition | [65] |
Nicholas Pike was last seen alive in March 2002. He was then 21. His body has never been found. The police did not inquire actively into his disappearance for some months, and their inquiries, once commenced, did not initially produce sufficient evidence to justify the laying of a charge. But significant new evidence came to light in March 2007 and this prompted further investigative activity which culminated in March 2008 when the police charged the appellant with Mr Pike's murder. The appellant was tried in the High Court before Ronald Young J and a jury in October and November 2009, found guilty and later sentenced to life imprisonment with a minimum period of imprisonment of 16 years. 1 His appeal to the Court of Appeal against conviction and sentence was dismissed 2 and he now appeals to this Court against the dismissal of his conviction appeal.
This appeal turns on the admissibility of, and the Judge's directions as to:
-
(a) admissions allegedly made by the appellant to other prison inmates (?the prison admissions?); and
-
(b) propensity evidence associated with prior violent behaviour by the appellant.
In late 2001, the appellant was involved in two extremely violent assaults. This was the violent behaviour which was relied on by the Crown as providing evidence of propensity, which we will discuss later in the judgment. As well, the two assaults provide a convenient starting point for discussion of the events which led to the disappearance of Mr Pike.
The first of these incidents involved a Mr Cook and occurred in the early hours of 25 November 2001. The appellant had a grudge against Mr Cook because of the latter's involvement with the appellant's girlfriend, Ms S. The appellant arranged for Mr Cook to be lured to a country location. When he arrived, the appellant and another man assaulted him and in the course of the attack the appellant hit Mr Cook on the head with a hammer. Ms S was present at the time of the attack.
The second incident involved a Mr Winter who also had a relationship with Ms S. In the early hours of 9 December 2001 the appellant entered the bedroom where Mr Winter was in bed with Ms S. He threw Ms S against the wall and then attacked Mr Winter, inflicting four stab wounds to the back, a laceration to the bicep, an injury to the wrist and a black eye.
As a result of these two incidents, the appellant was, by late 2001, on the run from the police. This meant that he required assistance from others, much of which was provided by Mr Pike; this in terms of driving cars, running messages and the like. The appellant and Mr Pike also had an involvement in drug dealing and this extended to the manufacture of cannabis oil in Ngongotaha (near Rotorua) for a brief period. This operation came to an end when the police executed a search warrant at the property on 24 January 2002. The appellant evaded the police but Mr Pike was arrested. He was later bailed.
During the period between the end of 2001 and May 2002 (when he was eventually arrested), the appellant usually carried a loaded Smith & Wesson revolver.
In the relationship between the appellant and Mr Pike, the appellant was very much the dominant partner. Mr Pike was at his beck and call. The appellant was rude to, and dismissive of, Mr Pike. He ordered him around and, at times, was threatening. On at least one occasion he held the loaded Smith & Wesson to Mr Pike's head. There was a considerable body of evidence to suggest that Mr Pike was scared of the appellant and believed that the appellant was likely to murder him. The evidence also indicated that the appellant suspected Mr Pike of being a police informant (which in fact he was) and of generally being a risk to his continuing liberty for reasons which included what he saw as Mr Pike's incompetence over the Ngongotaha operation.
In early to mid-March 2002, the appellant and Mr Pike were spending a good deal of time in and around Tauranga. There they met Ms Cindy Vrins. Mr Pike and Ms Vrins got on reasonably well although they did not have a sexual relationship. On the Crown case, the appellant was sexually attracted to Ms Vrins and resented the apparent friendship between Mr Pike and Ms Vrins.
As we have noted, Mr Pike was last seen alive in mid-March 2002. The appellant remained at liberty until May 2002 when he was arrested near Tauranga. At the time of his arrest, the police found the Smith & Wesson revolver to which we have referred. This revolver was loaded. The police also found ammunition and a fast-loading device.
The appellant was prosecuted for the two serious assaults we have discussed and for possession of the revolver. He was found guilty on all the charges and sentenced to a lengthy term of imprisonment. With the exception of a period while he was at liberty following an escape from prison in late 2002, he was in custody from the time of arrest in May 2002 until March 2008 when he was charged with the murder of Mr Pike.
Despite Mr Pike disappearing from view in mid-March 2002 and failing to make a court appearance in March, the police were not initially particularly concerned. Detective Sergeant Clifford who had dealt with Mr Pike as an informant, and who was later the officer in charge of the investigation into his disappearance,
assumed at first that Mr Pike was simply lying low in the company of the appellant. But when there continued to be no sign of Mr Pike after the appellant's arrest in May 2002, the police and Mr Pike's parents became very troubled. As noted, initial police inquiries did not establish what had happened. So the case remained unsolved for a number of years. During this time, there continued to be publicity about the disappearance. This was generated by both the police and Mr Pike's parents. And in March 2007 – that is, five years after Mr Pike disappeared – there was further publicity associated with, inter alia, the police offering a $50,000 reward. This resulted in two former prison inmates (A and B) coming forward. They told the police of admissions made to them in prison by the appellant. The police also approached Ms Vrins around this time. Subsequently, in September 2007, the police canvassed extensively those who had been in prison with the appellant with a view to gathering evidence of other admissions which the appellant might have made. We will discuss the detail of what emerged shortly.
At trial, Ms Vrins was the principal Crown witness. Initially (that is in 2002) she had not been prepared to co-operate with the police. But by 2007, when the police approached her again, her attitude to the police had changed and she gave them a detailed account of the circumstances leading up to Mr Pike's disappearance.
What she told the police, and later the jury, is that on 18 March 2002 she was travelling from Auckland to Palmerston North in the company of the appellant and Mr Pike. She said that while they were driving along the Desert Road, the appellant told her to get out of the car and to wait. He then drove down a side road with Mr Pike. He returned 10 to 15 minutes later by himself and explained Mr Pike's absence by claiming that he was tending a cannabis plantation, a not particularly plausible explanation given the location. Ms Vrins' evidence was that she and the appellant then drove on to Palmerston North where, for the first time, they had sexual intercourse that night.
The Crown contended that the appellant had murdered Mr Pike during the 10 or 15 minutes that he was away from Ms Vrins and that his motives for doing so were:
-
(a) his suspicion that Mr Pike was a police informant;
-
(b) his more general but overlapping concern that Mr Pike was a threat to his freedom;
-
(c) a drug debt owed to him by Mr Pike; and
-
(d) jealousy about Mr Pike's friendship with Ms Vrins.
A good deal of the evidence of Ms Vrins and that of other Crown witnesses was addressed to the movements and whereabouts of the appellant, Mr Pike and Ms Vrins during March 2002. This provided context, and some support, for the evidence of Ms Vrins and also undermined an alibi proffered by the appellant. There was also much evidence as to the relationship between the appellant and Mr Pike (including the...
