Howse v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 19 July 2005 |
| Neutral Citation | [2005] UKPC 30 |
| Docket Number | Appeal No. 9 of 2005 |
| Court | Privy Council |
| Date | 19 July 2005 |
[2005] UKPC 30
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Hutton
Lord Carswell
Sir Andrew Leggatt
Sir Swinton Thomas
Privy Council
[Majority Judgment delivered by Lord Carswell]
On 4 December 2002 the appellant Bruce Thomas Howse was convicted, after a lengthy trial before Goddard J and a jury, of the murder on 4 December 2001 of Saliel Jalassa Aplin and Olympia Marissa Jetson, aged respectively twelve and eleven years, daughters of his partner Charlene Aplin. On 18 December 2002 the judge sentenced the appellant to imprisonment for life on each count, and ordered that he serve a minimum period of 28 years' imprisonment before he could be eligible for parole.
The appellant appealed to the Court of Appeal of New Zealand against conviction and sentence. By a written judgment dated 7 August 2003 the Court of Appeal dismissed the appeal against conviction, but reduced the minimum period which he was to serve to 25 years. The appellant has appealed, with special leave, to the Privy Council against the decision of the Court of Appeal in respect of his conviction.
The two victims slept in a building at the rear of the family house known as a sleep-out, which had been converted from a garage. The pathologist's evidence was that each girl received a fatal wound with a single knife thrust. He said that Saliel would have died within a few minutes, whereas Olympia bled to death over a period which he estimated at 30 minutes to two hours. The motive for the killing attributed by the Crown to the appellant was that complaints had been made by the victims about sexual abuse carried out on them by the appellant and he killed them in order to silence them, then attempted to throw the blame elsewhere, first on some intruders and then on Charlene Aplin.
Charlene Aplin's evidence was that she had gone to bed, leaving the appellant to complete some work on cupboard doors. She was wakened in the early hours by the appellant, who told her that he had been attacked by Polynesian males. His face was injured and his singlet was torn. Ms Aplin telephoned the police, the call being timed at 3.38 am. Police went to the scene with a tracker dog and there found the bodies of the children in the sleep-out, both in the room in which Saliel slept.
The appellant was seen in the local hospital, where he repeated his account of an attack on him by several men. When Detective Constable Faraimo arrived at the hospital at about 5.45 am the appellant named a person who he alleged was behind the attack. DC Faraimo then informed him that the bodies of the two children had been found in the sleep-out, whereupon the appellant began screaming and crying and gave the appearance of being very distressed. DC Faraimo conducted an interview with the appellant, commencing at 6.01 am that morning, which was recorded on video. At the outset his rights were read to him. The appellant gave an account on the same lines of the attack on him and details of the family and the events of the previous day. At 10.30 am he was medically examined, DNA samples were obtained and photographs and fingerprints were taken. The interview continued, with a number of breaks, for much of that day and into the afternoon. The total time spent in interview during this period was some three and a half hours.
DC Mears conducted an interview in Wellington after caution, which was also recorded on video, commencing at 12.10 am on 5 December and lasting about an hour. Prior to that interview DC Mears had conducted an oral interview with the appellant, in which he put it to him that the doctor who examined him had formed the view that his injuries were self-inflicted. Facsimile copies of pages from a notebook kept by Olympia, containing allegations of sexual abuse by the appellant, were shown to him. Throughout this and the succeeding video interview the appellant denied these allegations and adhered to his account of the attack on him.
The detectives who drove with him from Wellington back to Masterton formed the view that the appellant might be ready to make admissions. They contacted their superior officer and some time after 3.30 am that same night Detective Senior Sergeant Oxnam held an interview with the appellant at a motel at Masterton, where the latter was to stay. The interview lasted about an hour and in the course of it the appellant confessed to killing the two girls, saying that he heard voices and needed help. He then went to Masterton police station and had a further interview with DC Faraimo, which was recorded on video. The interview commenced some time about or after 4.45 am and was completed at 6.04 am. The appellant confirmed his account of killing of the two girls and the way in which the blows were struck. Part of the Crown case was that he could not have known the latter and that his accurate account of the direction of the knife thrusts was a clear pointer towards his guilt.
No further interview took place until 11 December 2001, when the appellant was interviewed under caution by DC Mears in the presence of his solicitor, whom he had previously consulted in private. On this occasion the appellant retracted his previous confessions, denied any part in the killings and blamed Charlene Aplin for committing them. He claimed that she had become fed up with the rows which she had with the two girls and was unable to take any more stress, killed them with a knife and asked him to "take the rap". He said that he made up the story which he originally gave in order to cover up the crime.
The defence challenged the admissibility of the inculpatory interviews and on an application brought under section 344A of the Crimes Act 1961 Gendall J held a pre-trial hearing extending over three and a half days in August 2002, as though it were a voir dire held in the course of the trial. In that hearing detailed evidence was given about the circumstances in which the interviews were held and admissions made. On 27 August 2002 Gendall J gave a written decision, whereby he held that all of the interview evidence, with the exception of one portion, should be admitted. This part of his ruling was not the subject of challenge on appeal in the Court of Appeal or before the Board.
Gendall J also considered at the same hearing an application to exclude evidence relating to previous acts of violence alleged to have been committed by the appellant and allegations of sexual abuse by the appellant of the two victims and their sisters Alicia and Destiny Aplin. He gave a ruling about the extent of the evidence of previous alleged acts of violence which could be admitted, and this ruling has not been the subject of any argument before the Board.
It is apparent from paragraph 18 of Gendall J's detailed ruling that he appreciated the distinction between hearsay evidence directed to proving the truth of its contents and evidence designed to prove only the making of the allegations:
"18. All hearsay allegations made by Olympia and Saliel are not evidence of the contents, although proof as to the truth of the fact that the statements were made. But the evidence of Alicia is not hearsay."
As he stated in paragraph 73, the Crown relied on all the evidence which they proposed to adduce as a powerful indicator of motive. It did, however, go further than propounding the evidence to prove only the making of the complaints and maintained that it could prove the truth of the allegations.
When he came to consider his conclusion on the admissibility of the evidence of complaints, it is apparent that Gendall J was prepared to admit it as proof of the making of the allegations, and it would appear also that he did not regard it as admissible as proof of the truth of the contents. He stated in paragraph 83 of his ruling:
"The developing narrative or circumstances of complaints by Olympia, then retracted and later revived, and brought to the attention of CYPS to the knowledge of the accused – along with the documentary hearsay contained in her diary and exercise books – are all admissible so as to provide a comprehensive picture of developing events relevant to motive. These events naturally involved the accused acknowledging complaints were made, and denying the truth not only to counsellors but also to the detectives in interview. Additional to this is the evidence of Saliel's complaint to her sister, her threat to 'nark' and the semen stain linked to the accused. It would be unrealistic to exclude such evidence because if accepted, it is relevant to the Crown's case that in fact sexual abuse had occurred on both girls, and disclosure was imminent with the accused's motive being to prevent further disclosure. Its probative value from the point of view of the Crown's case as to motive far outweighs it prejudicial effect."
Gendall J went on to consider Alicia's evidence, which, as he stated in paragraph 86, was similar fact evidence designed to support the truth of the deceased girls' allegations. He held in paragraph 88 that, although he regarded it as borderline, the probative effect of the evidence outweighed its obvious prejudicial impact and decided to admit it. He also admitted the notes in Olympia's exercise book alleging that the appellant had made threats to kill her. He concluded by pointing out that his rulings were subject to review or variation by the trial judge.
The appellant lodged an appeal against Gendall J's ruling, but later abandoned it.
When the case came to trial in November 2002 the Crown did not confine itself to calling the evidence required to prove that the appellant knew that allegations of sexual abuse had been previously made and were resurfacing, which was relevant to establish the motive for the murder which the Crown...
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