Venod Skantha v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 14 April 2021
• Neutral Citation: [2021] NZCA 117
• Date: 14 April 2021
• Docket Number: CA122/2020
• Court: Court of Appeal

Between

Venod Skantha

Appellant

and

The Queen

Respondent

[2021] NZCA 117

Court:

Miller, Cooper and Gilbert JJ

CA122/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Evidence — appeal against a conviction for murder — whether the omission of an accomplice warning led to a miscarriage of justice — whether the admission and treatment of propensity evidence led to a miscarriage of justice — admission of hearsay evidence — adequacy of the Judge's summing-up and directions

Counsel:

JHM Eaton QC, T A Simmonds and H C Coutts for Appellant

R P Bates, R D Smith and S E Trounson for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

TABLE OF CONTENTS

Introduction	[1]
Narrative facts	[8]
The trial process	[33]
Propensity evidence ruled admissible before trial	[33]
Overview of the evidence led at trial	[39]
The competing cases	[40]
The appeal	[50]
The omission of an accomplice warning for W	[57]
Admission and treatment of propensity evidence	[70]
Inclusion of P's evidence	[71]
Failure to reconsider admissibility of propensity evidence	[73]
Failure to direct the jury that propensity evidence was relevant only to motive	[77]
Erroneous direction as to standard and onus of proof	[80]
Failure to direct the jury on the “main” issue: whether the claims of the propensity witnesses were true	[84]
(i) The alleged indecent assault of Ms Rush	[85]
(ii) The alleged indecent assaults of other women	[89]
Undue emphasis given to propensity evidence in summing-up	[92]
Refusal to admit hearsay evidence of Ms Rush's complaints about W	[96]
Summing-up: unfairness and lack of balance	[105]
Defence case as to indecent assault	[106]
Propensity generally	[108]
Treatment of inferences	[111]
References to key players	[112]
Taking on prosecutor's role	[114]
The lies direction	[116]
Demeanour	[123]
Experts	[128]
Conclusion	[130]
Result	[131]

Introduction

1 Venod Skantha appeals his convictions for the murder of Amber-Rose Rush in Dunedin on 2 February 2018, and for threatening to kill four people to secure the silence of a witness. 1

2 In exchanges of Facebook messages with Mr Skantha that began around 7.30 that evening, Ms Rush accused him of indecently assaulting her, engaging in sexual

activity with minors and supplying minors with alcohol. She threatened to go to the Police and his employer with her allegations. She was aged 16. He was aged 30 and employed by the Southern District Health Board (DHB) as a doctor. Some months earlier he had been given a final warning for misconduct at work

3 Sometime before 10 pm Ms Rush uploaded to Instagram screenshots of her Facebook exchanges with Mr Skantha. The posts were noticed by W, a young man of 16 years who was a follower of Mr Skantha's and frequently acted as his driver. 2 W drew the posts to Mr Skantha's attention. There followed a further exchange of messages between Mr Skantha and Ms Rush in which he complained about the posts and she expanded on her claims that he was in the habit of preying on young people. She said she would make sure everyone knew about his behaviour, including his employer and the Police. She insisted she was serious about it. The exchange of texts ended at 11.34 pm.

4 The Crown contends that Mr Skantha moved at once to silence Ms Rush. He picked W up at about 11.40 pm and W drove him to her home. Ms Rush was in her bed when she was murdered at about midnight. Her jugular vein and windpipe were severed with a knife.

5 W was the Crown's principal witness at trial. His account was that Mr Skantha went into the house and returned about five minutes later with Ms Rush's cellphone, which she had last used at 11.55 pm and, with W's assistance, Mr Skantha set about destroying evidence, beginning with the cellphone and including his bloodstained clothes. W, who went to the Police two days later, was never charged with any offence relating to the killing. The Crown alleged rather that to secure W's silence Mr Skantha threatened to kill W and three members of his family.

6 Mr Skantha's case — he did not give evidence at trial — is that it was W who became agitated about the texts and killed Ms Rush out of misplaced loyalty to him. At the same time, he contends, W set about ensuring that Mr Skantha would be accused

of her murder. Mr Skantha maintains that he remained in the car and had no idea what W was going to do. On appeal, he complains that the trial Judge, Nation J, refused to treat W as an accomplice and refused to admit the hearsay evidence of two witnesses who would have recounted Ms Rush's complaints that W had previously entered her bedroom late at night

7 At trial a number of witnesses were called to give evidence of motive. They deposed to unsavoury conduct of the kind that Ms Rush had alleged in her Facebook messages. The evidence of most of these witnesses was ruled admissible by this Court in a pretrial decision. 3 On appeal, Mr Skantha complains that much of the evidence actually given at trial was both inadmissible and highly prejudicial, and further that the evidence was mishandled by the Judge. He also says that the summing-up lacked balance and in myriad ways was unfair to him.

Narrative facts

8 We begin with an account of the facts, which we preface by noting that the Crown does not accept its case rested on the evidence of W. It maintains rather that its case was substantially circumstantial and the circumstantial evidence pointed overwhelmingly to Mr Skantha's guilt. Many of the facts are not in dispute; they are confirmed by texts or social media communications, or location data, or CCTV footage, or the evidence of eyewitnesses.

9 Mr Skantha took employment as a House Officer with the Southern DHB in 2016, after completing his medical studies in Auckland. He was initially based in Invercargill but moved to Dunedin in May 2017. He was bound by the DHB's Code of Conduct and Integrity, which required among other things that he must avoid situations where his behaviour could reflect badly on the DHB or impact on his workplace and ensure that his use of alcohol or other substances did not impair his work performance or endanger others.

10 On Mr Skantha's account he was drinking excessively in 2017 and was socially isolated. He was certainly in the habit of associating with teenagers, some as young

as 14. His flatmate at his Dunedin home, at Forbury Road, described a lot of small social gatherings, often involving alcohol and drugs. W quickly became an acolyte of Mr Skantha, who hosted a birthday party for him in June. W took it upon himself, apparently without telling Mr Skantha, to issue a general invitation on social media, promising free alcohol for 16-year olds. Ms Rush, a friend of W's, attended the party and met Mr Skantha. Thereafter she and several of her friends hung out regularly with Mr Skantha and W. There is a good deal of evidence that Mr Skantha supplied the young people with alcohol on a number of occasions, some of which were the subject of propensity evidence led at trial

11 Mr Skantha was investigated and disciplined for misconduct at work in July 2017. While on sick leave, he came to the hospital with two friends who were to support him at a meeting with his educational supervisor. He was told that the meeting was scheduled for the following day. Rather than leave the hospital he went to a ward with his friends. He was in an emotional state and smelt of alcohol. On the ward he flushed a patient's cannula, taping it very tightly and dating it with the previous day's date. This led to a formal investigation, during which he explained his behaviour by stating that his mother had just passed away. But for that claim, which was false, he would have been dismissed. Instead he was given a final warning. His actions were considered particularly serious due to an earlier incident where Mr Skantha had responded to a nurse's telephone request for advice about a patient while he was on sick leave and accordingly unsupervised, which was considered inappropriate.

12 Late in 2017 Mr Skantha purchased a home at Duxford Crescent in the suburb of Fairfield, taking possession around 15 December. It is not in dispute that about this time there was a suggestion that Ms Rush and her friend C were planning to move in with him. It is also agreed that Mr Skantha and Ms Rush had a falling out on 7 January 2018 after he offered her money to have sex with him and she refused. He ordered her to leave the house. It was also at Duxford Crescent, likely on 3 January, that Ms Rush was allegedly indecently assaulted by Mr Skantha; she went to sleep on a couch after she had been drinking and claimed that she woke to find her bra off and Mr Skantha with his hands down her pants.

13 It does not appear that Ms Rush met Mr Skantha after 7 January, but she did obtain access to a wallet that he had left in his car. On 29 January she texted a friend, M, to say she had Mr Skantha's credit card. She claimed she had spent $300 on the card so far.

14 The messages between Mr Skantha and Ms Rush on the evening of 2 February 2018 began with him asking whether she had spent money on his credit card. The first set of messages were sent between 7.34 pm and 7.50 pm.

Friday 02.02.2018, 7:34 pm	Venod Skantha: U there? Important
Friday 02.02.2018, 7:36 pm	Amber Rose: What
Friday 02.02.2018, 7:37 pm	Venod Skantha: Did u use 48 bucks on wish.com?
Friday 02.02.2018, 7:38 pm	Amber Rose: No haha but I should have JJ
Friday 02.02.2018, 7:39 pm	Venod Skantha: Hmm. I wonder who did
Friday 02.02.2018, 7:41 pm	Amber Rose: After what you did you're lucky thats all that happened lol
...