Bartlett v The Queen
[2021] NZCA 152
•30 April 2021 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA148/2020 [2021] NZCA 152 |
| BETWEEN | LEVI BARTLETT |
| AND | THE QUEEN |
| Hearing: | 16 March 2021 |
Court: | French, Ellis and Muir JJ |
Counsel: | J D Lucas for Appellant |
Judgment: | 30 April 2021 at 10 am |
JUDGMENT OF THE COURT
AThe conviction appeal is dismissed.
BThe sentence appeal is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Muir J)
Introduction
Mr Bartlett appeals his conviction for aggravated robbery following a jury trial before Judge Kellar in the District Court at Christchurch.[1]
[1]Crimes Act 1961, s 235.
He does so on the basis that a miscarriage of justice resulted from:
(a)the Crown’s opening and closing addresses which he says were unfairly emotive and prejudicial to him; and
(b)improper admission of a statement made by him after exercising his right to silence.
Mr Bartlett also appeals his sentence of nine years’ imprisonment.[2] He says that this was manifestly excessive having regard, in particular, to matters raised in a s 27 cultural report.[3]
Background
[2]R v Bartlett [2020] NZDC 1898.
[3]Sentencing Act 2002, s 27.
In respect of the aggravated robbery charge, Mr Bartlett faced trial with a co‑offender, Mr Clarke.
On the afternoon of 4 June 2018 the victim, Mr White, was visiting friends, Messrs Murphy and Milne, at their flat in Christchurch. Mr White was playing chess with Mr Milne when there was a knock at the back door. Mr Milne went to answer it and was confronted by two men, one of whom — Mr Bartlett — was carrying a hammer. In his evidence Mr White said that the pair had the stance of persons “ready to go”.
Mr Milne then sprinted through and ran out the front door to the neighbour’s property. Mr White, who was still in the house, heard a crash and saw “[a] guy come running into the room swinging a hammer”. Several blows were landed on Mr White. He described being hit “as hard as [his attacker] could”. He said that he was then “confronted with a shotgun”. The intruders demanded money and drugs. There was neither in the house. Mr White said the offenders should take whatever they wanted, including his jacket, car keys and watch. He described one of the offenders as wearing a red bandana around his face and a Mongrel Mob patch on his back.
Throughout all of this, Mr Murphy remained in his bedroom with his dog. He heard yelling and when he looked out from his bedroom door saw a man with a hammer, wearing a black vest with a Mongrel Mob patch, standing over Mr White. The other man was also wearing a vest. Mr Murphy put his dog out of the bedroom window and then exited that way himself. He and the dog went to a driveway across the road.
A short time later Mr Murphy saw the intruders coming down his driveway towards a red station wagon. He saw the men get into the car. Mr Milne took down the car’s registration number. Both he and Mr Murphy then attended to Mr White and called the police.
A third flatmate, Ms Ruki, was not at home when Mr White was attacked but arrived back to see a man with a gang patch struggling with the door of his red station wagon outside their neighbour’s house.
Mr White suffered head, face, collarbone and hand wounds. Ms Ruki described one of her flatmates looking as “white as a ghost”.
The police promptly matched the reported car registration to Mr Clarke’s address and several officers attended. There were fresh tyre marks leading into the garage where the red station wagon was located. It was wet from the rain and its bonnet was still warm. There was a shotgun in the front passenger footwell. At the point police arrived, Mr Clarke was seen jumping the fence of the property, but he was soon apprehended.
When the house was searched police located various items stolen during the robbery, together with the hammer and Mongrel Mob clothing. Police also found Mr Bartlett standing in the bath, behind a shower curtain and fully clothed.
Mr Clarke and Mr Bartlett were arrested. Each was read his rights. Mr Bartlett refused to answer any questions during the course of transit to the police station. Upon arrival at around 4.25 pm Mr Bartlett confirmed that he would be making “[n]o comment, I’ll just take it as it comes but I’m not going to say anything”. He was searched and two red bandanas, a Mongrel Mob t-shirt and a hoodie were taken from him. Keys, which were believed to have belonged to Mr White, were subsequently located in Mr Bartlett’s trouser pocket. The interviewing constable photographed the keys, and at around 6.20 pm went to Mr Bartlett’s cell, re-cautioned him and asked, “are these yours? They were found on you when you were arrested.” Mr Bartlett responded, “they are not mine, I found them.” The constable then asked, “where did you find them?” to which Mr Bartlett responded, “on the ground”. To the question, “whereabouts on the ground?” Mr Bartlett said, “no comment.” He refused to sign the constable’s notebook. The exchange concluded at that point.
The conviction appeal
The appellant’s case: unfair prosecutorial conduct
Mr Lucas submitted that the way the Crown described the defendant’s case, both in opening and closing addresses, so minimised any prospect of acquittal that it overwhelmed the jury’s decision-making processes. In respect of the opening address, he refers in particular to the following passages:
Ladies and gentleman, this case will be one of identity. Are the two defendants in Court today the same two men who robbed and assaulted the complainant on the 4th of June 2018? The Crown says that there can be no doubt that Mr Bartlett and Mr Clarke are the offenders in question and over the next few days I intend to set out what is an overwhelming case against them.
…
Now there is a lot there that you will need to take in over the next couple of days before being asked by His Honour to retire to the jury room and come to a collective decision about the guilt or otherwise of these defendants. And it is important that you keep an open mind as you listen to the evidence. Issues tend to crystallise only once you have heard all of the evidence from the witnesses and you have listened to the closing addresses [t]hat will be made by the lawyers and have listened to the summing up that will be given by the Judge, but so long as you listen carefully you’re going to be well placed to deliver your verdicts. Has the Crown got the right defendants? That is the question that you are going to need to answer at the end of this case and I expect that won’t be a question that will cause you too much difficulty at all. Thank you for your attention. May it please Your Honour.
In respect of the closing address, he focuses on the following passages:
May it please Your Honour, Madam Foreperson, members of the jury. On Monday morning I described the case against these two defendants as overwhelming, and I stand by that comment. This has been a relatively short trial and the evidence is as straightforward as it is damning.
…
Now sitting alongside the burden of proof is the standard of proof beyond reasonable doubt. What that means is that you need to be sure that the defendants are guilty. You don’t have to be satisfied beyond all doubt, which is an impossible standard and one that the Crown does not have to reach. But you do have to be sure, that is a high standard and it is a high standard for good reason. But in my submission, ladies and gentlemen, it is a standard that has been well and truly reached on the evidence in this case.
Mr Lucas says that by using words such as “overwhelming” and “damning”, and suggesting that the question of identification would not be one “that will cause you too much difficulty at all”, the Crown was indicating that it had “no concern for the defence case and neither should the jury”. He submitted that the Crown compounded the problem by combining comments about the weakness of the defence case with its commentary on the standard of proof, and that although the Judge provided the usual directions on both onus and standard, he should have directed the jury back to the Crown’s statements and reminded them that whether the onus had been met was a matter for them and that the statements should be ignored.
Discussion
The overall duties of counsel representing the Crown in a criminal trial were accurately summarised by this Court in R v Hodges:[4]
Counsel is entitled, indeed expected, to be firm, even forceful. Counsel is not entitled to be emotive or inflammatory. The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically. … They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.
[4]R v Hodges CA435/02, 19 August 2003 at [20]; followed in R v O (CA342/06) [2007] NZCA 87 and R v Henderson [2007] NZCA 524.
In respect of a prosecutor’s opening address, s 107(1) of the Criminal Procedure Act 2011 provides that this must “[indicate] to the jury the nature of the offences alleged and the evidence that he or she will call”.
In a passage adopted by the Supreme Court in R v Stewart (Eric), the Ontario Court of Appeal in R v Mallory observed in respect of such an address:[5]
It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case. Simply put, “the Crown’s opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call”. At the opening of the trial the rules constraining the Crown “should apply with even more vigour” than at the closing when by then the jurors have heard and seen all about the case.
[5]R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425 at [22], citing R v Mallory 2007 ONCA 46, (2007) 217 CCC (3d) 266 at [338] (citations omitted).
In respect of the closing address, there is greater latitude. It is an exercise in advocacy and prosecuting counsel are entitled, indeed required, to advance their case forcefully and effectively, albeit at all times conducting themselves with dignity and fairness.[6]
[6]R v Stewart (Eric), above n 5, at [22], citing R v Mallory, above n 5, at [339].
We do not consider that words such as “overwhelming” should be used by Crown counsel to describe their cases in opening. We accept that such expressions have the potential to encourage less than diligent jurors to take a reduced interest in what follows. Counsel should at this early stage of proceedings avoid over-amplified assessments of the Crown’s prospects. Indeed, they should properly confine themselves to the matters identified in Mallory.
We note, however, that here counsel followed up the reference to the suggested “overwhelming case” by cautioning the jury to keep an open mind and to listen to the evidence. He reminded the jury that issues tend only to crystallise after all the evidence is in and the closing addresses are heard. We consider this to have at least partially mitigated the risk we have identified.
We have no such reservation about the closing. To describe the case in that context as “overwhelming” and “as straightforward as it was damning” is, in our view, within the bounds of appropriate advocacy.
We also regard it as an accurate description of the case at that point — a conclusion which foreshadows our response to the identified problem with the opening address. Mr Bartlett’s identity as one of the offenders was almost unanswerable. We reach that conclusion having regard to the eye witness accounts, their record of the vehicle registration number, the existence of Mr Bartlett’s fingerprints in the vehicle, the fresh tyre prints, the fact that the bonnet of the vehicle was still warm, Mr Bartlett’s attempts to hide in the shower and the location of the victim’s car keys in the pocket of Mr Bartlett’s trousers.
The case is not one, therefore, where any miscarriage of justice can be said to have arisen as a result of the prosecutor’s opening statement. Any reasonably diligent juror would, in our view, have similarly concluded the Crown case was “overwhelming”. Moreover, the trial Judge was careful to emphasise that all counsel’s addresses were in the nature of submission, made with the intention of endeavouring “to persuade you to a certain view” but that, ultimately, it was the jury’s task to assess the case by reference to the evidence with the ability to “agree or disagree with counsel as you see fit”.
We are not therefore persuaded by this ground of appeal.
The appellant’s case: questioning beyond assertion of the right to silence
Mr Lucas submits that police questioning about the keys following what he describes as Mr Bartlett’s “emphatic statement that he didn’t want to answer questions” meant that there was a breach of s 23(4) of the New Zealand Bill of Rights Act 1990, whereby every person who is arrested or detained has the right to silence. He says that by further questioning Mr Bartlett the police elicited a relatively lame excuse as to how he obtained the victim’s keys which the Crown could then use to show that he was lying.
He submits that the evidence should not have been admitted at trial and that because it was, a miscarriage has resulted which justifies a retrial.
Discussion
We note at the outset that the admissibility of Mr Bartlett’s statement about the keys was not challenged in any pretrial application, nor was the propriety of the police’s conduct challenged in cross-examination or in the defence closing. We regard that as significant in terms of the emphasis now placed on this issue.
There is no absolute prohibition on the police further questioning a person beyond assertion of the right to silence. A suspect need not be protected against making a statement and police may use “legitimate means of persuasion to encourage the suspect to do so”.[7] It is a suspect’s choice whether and to what extent he or she chooses to exercise the right to silence and a person may choose to answer some questions and not others.[8] The touchstone is whether the police conduct can be described as overbearing or oppressive.[9]
[7]R v Hebert (1990) 2 SCR 151 at [53], cited with approval in R v Ormsby CA493/04, 8 April 2005 at [12].
[8]Perry v R [2015] NZCA 530 at [36].
[9]Lisiate v R [2011] NZCA 170 at [12]. In R v Perry [2016] NZSC 102 at [45] the Supreme Court noted “some divergence in the relevant Court of Appeal decisions as to whether it may be appropriate, and if so to what extent, for an interviewing police officer to carry on with an interview once a suspect has unequivocally exercised the right of silence” but indicated that any reconsideration should occur in the context of a case (unlike the one before it) “in which a suspect has exercised the right of silence and was then put under pressure or otherwise induced to change that election”.
No such criticism can be made of the police in this case. Mr Bartlett was fully informed of his rights and clearly understood them. He initially elected not to speak to police. That election was respected. He was not further questioned in the period which immediately followed.
However, approximately two hours later, having identified a set of keys which were ultimately established to be those of the victim in the pocket of Mr Bartlett’s hoodie, the police re-engaged him and asked if he wished to give an explanation. We consider it entirely appropriate that they did so. This was new information properly put to the defendant. Indeed, a failure to do so may have been a basis for criticism. The defendant was re-cautioned and asked two simple questions — whether the keys were his and where they were found. There was no element of badgering or persistence. The defendant chose to answer both questions and thereafter to reassert his right to silence which was again respected. This was, in our view, a case of someone choosing to answer some questions and not others and whose decision to do so could never be described as a product of overbearing, oppressive or unreasonable police conduct. It is some distance from those cases where the courts have seen fit to intervene.
In any event, the response from the defendant was exculpatory and, although a lie, was not emphasised as such by the Crown in closing. It had no need to. Its case was otherwise compelling. Nor, in the absence of any challenge to the defendant’s statements, whether pretrial or in cross-examination or closing, can we rule out a deliberate tactical decision on the part of the defence to have the statements in evidence. In their terms the statements amounted to a denial of connection between the keys and any criminal offending.
Again, therefore, we are satisfied that no miscarriage of justice has occurred.
The sentence appeal
The sentence imposed
Mr Bartlett was simultaneously sentenced on charges of common assault and possession of cannabis (both to which he had already pleaded guilty) and the charge of aggravated robbery for which he stood trial.[10]
[10]R v Bartlett, above n 2, at [19].
In respect of the aggravated robbery charge, which was the lead offence, the Judge identified a starting point of 10 years[11] having regard to the guideline judgment in R v Mako,[12] this Court’s decision in Hemopo v R,[13] and the High Court’s decision in Wakefield v Police.[14] This is not challenged on appeal. To that the Judge added three months for the common assault charge (which related to a prison incident while on remand) and one year on account of Mr Bartlett’s lengthy history of violent offending.[15] These uplifts are likewise not challenged on appeal. The Judge then made a deduction of one year (or 10 per cent[16]) to reflect Mr Bartlett’s personal circumstances and guilty pleas on the assault and minor drugs charge.[17] Finally, the Judge made a further reduction of one year and three months on the basis of having “stood back and looked at the proportionality of the overall sentence”.[18]
The appellant’s case
[11]At [19].
[12]R v Mako [2000] 2 NZLR 170 (CA).
[13]Hemopo v R [2016] NZCA 242.
[14]Wakefield v Police HC Christchurch CRI-2008-409-169, 18 December 2008.
[15]R v Bartlett, above n 2, at [14] and [19].
[16]Calculated on the identified starting point.
[17]In respect of the drugs charge the Judge had earlier entered a conviction and discharge, at [2].
[18]At [19]. The final sentence was therefore nine years’ imprisonment. The Judge declined a Crown request to impose a minimum period of imprisonment, at [20].
Mr Lucas submits that the end sentence was manifestly excessive having regard to Mr Bartlett’s background circumstances. He relies on the s 27 cultural report prepared by Ms Phillips, whom he described as an experienced report writer.
The report describes an all too familiar background involving an itinerant childhood lifestyle immersed in a culture of alcohol and drugs, surrounded by parental gang contacts and in circumstances where domestic violence was a frequent occurrence. Indeed the report writer notes Mr Bartlett’s first memory as being of his father violently assaulting his mother.
Mr Lucas submits that, having regard to what he describes as the causal link between this “tragic upbringing” and Mr Bartlett’s violent offending, an end sentence of around eight years’ imprisonment would have been appropriate.
Discussion
In its recent decision in Carr v R,[19] this Court comprehensively reviewed recent developments in respect of discounts for s 27 cultural factors, including the observations of the Full Court in Zhang v R.[20] In R v Carr, the High Court had declined to allow any discount when sentencing the defendant for a series of aggravated robberies and related offending.[21] This Court then said:[22]
[65] We consider that the report gave a credible account of matters which might be considered to have impaired choice and diminished moral culpability so as to establish a causative contribution to offending, of the kind envisaged in Zhang. Where that is shown, we consider it must have an effect on the sentencing outcome. The focus of s 27 is on matters personal to the offender and while the gravity of the offending might temper the extent of any discount allowed for such considerations, that is a different proposition from saying there should be no allowance. We note in fairness to the Judge that this Court’s judgment in Zhang had not been delivered when he sentenced the appellants.
[66] Nor is it appropriate to reason that because other people with disadvantaged backgrounds do not offend, legitimate references to deprivation affecting the life of an individual offender can be put on one side. We can agree with the Judge that “[e]xcessive discounts in this context” undermine what he described as the criminal law’s precepts of human agency and choice. Those observations obviously were intended to embrace s 7(1) of the Sentencing Act’s reference to the purposes of sentencing, including holding offenders accountable, promoting a sense of responsibility and denouncing the conduct in which the offender was involved. But there is a clear difference between avoiding an excessive discount and deciding that there should be no discount at all. The latter conclusion might in its turn attract the criticism that the requirements of ss 7(1)(h) and 8(i) of the Sentencing Act had not been met. Section 7(1)(h) states that one of the explicit purposes of sentencing is to assist in the offender’s rehabilitation and reintegration. Section 8(i) has been mentioned above. When there is a link of the kind recognised in Zhang it would be wrong not to apply the provisions of the Act.
[19]Carr v R [2020] NZCA 357.
[20]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[21]R v Carr [2019] NZHC 2335 at [62].
[22]Carr v R, above n 19 (footnotes omitted).
As this Court also recognised in Carr, “[t]he assessment of an appropriate allowance to recognise matters raised in [a] s 27 report is a very fact specific exercise in each case”.[23] Some causal link between the matters said to mitigate culpability and the offending must be established. In the case of particularly serious offending the Court’s responsibility to hold the offender accountable, to denounce relevant conduct, to deter the offender from similar future offending and to protect the community may act as a check on the extent of any discount available. Nor should such discounts be seen to undermine the criminal law precepts of agency and choice.
[23]At [63]. See also Whittaker v R [2020] NZCA 241 at [51].
In the present case, the Judge clearly took the s 27 report into account. He described it as “very helpful”.[24] He must therefore be taken as accepting that Mr Bartlett came from a background of significant disadvantage and that his development had been affected by exposure to violence, traumatic events and negative role models among family and friends. The Judge went on to recognise the required causal relationship by reference to another report which described Mr Bartlett’s background and the “offending personality that has arisen out of it”.[25]
[24]R v Bartlett, above n 2, at [15].
[25]At [15].
As we have noted, the Judge allowed a one-year (or 10 per cent) discount to reflect these factors and the guilty pleas in respect of the more minor charges.
Having regard, in particular, to the way in which the cannabis charge was dealt with, we consider that this discount must have been largely attributable to the factors identified in the s 27 report.
We have also considered this discount in the context of others recognised in broadly comparable cases.[26] The discount recognised was at the lower end of the range typically applied. However, we take into account the fact that the pre-sentence report recognised other causative factors (including drug use) as explaining the defendant’s violent criminal history.
[26]For example, in Carr the discount adopted by the Court of Appeal was 15 per cent. There had been no allowance in the High Court: R v Carr, above n 21, at [62]; rev’d Carr v R, above n 19, at [67]. Other recent cases involving aggravated robbery have recognised discounts between 9.5 per cent (Whittaker v R, above n 23) and 20 per cent (Purua-King v R [2019] NZHC 1698).
We consider the Judge to have taken into account s 27 cultural factors to an extent which does not render the final sentence manifestly excessive, particularly in view of his generous discount for what he termed “the proportionality of the overall sentence”.[27]
Result
[27]R v Bartlett, above n 2, at [19].
The conviction appeal is dismissed.
The sentence appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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