C v Police HC Hamilton Cri-2009-419-56

[2009] NZHC 2184

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-419-000056

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 December 2009

Appearances: M Wright for the appellant

S Cameron for the respondent

Judgment:      4 December 2009

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

M Wright, Rae & Wright, PO Box 2, Morrinsville 3340

Crown Solicitor, PO Box 19173, Hamilton 3244

C V NEW ZEALAND POLICE HC HAM CRI-2009-419-000056  4 December

2009

[1]      C   (the appellant) was convicted in the District Court at Morrinsville on one charge of burglary.   The case was heard by Judge R P Wolff following a not guilty plea and his decision dated 9 March 2009 followed. Subsequently, the appellant was sentenced by Judge A I M Tompkins on 29 July

2009 to six months’ community detention and, in addition, 250 hours of community work.

[2]      A key aspect of the appeal is an application to call fresh evidence from Nathan Lee Melgers, who has also been convicted and sentenced for his part in the same burglary at an address in Matamata, 242 Te Poi Road.

[3]      The  affidavit  put  forward  in  support  of  the  application  to  adduce  fresh evidence was economical in the extreme.   It basically included no evidence whatsoever, but rather conclusively statements that the appellant “has been wrongfully convicted of the burglary”.  The deponent claimed that he committed the burglary  with  his  father  Michael  Melgers,  who  has  also  been  convicted  and sentenced for his part.   Mr Michael Melgers was a key witness at the trial of the appellant and gave important evidence at the hearing.

[4]      Mr Nathan Melgers also deposed to the fact that he did not come forward earlier to offer evidence that might exonerate the appellant.   But no other details were  provided.    Counsel  for  the  respondent  gave  notice  requiring  Mr  Nathan Melgers to be present for cross-examination.  He arrived in Court with the appellant, who has been present throughout the hearing.

[5]      The elaboration of the proposed evidence, both by way of evidence-in-chief and in cross-examination, required several hours this morning.  The question for the Court is whether this evidence meets the test for fresh evidence.

[6]      The test to be applied in this case is not in dispute.  It is helpfully set out in the case of McCabe v Police HC HAM AP26/95 26 June 1995.  There it was held by Penlington J that there was a two-step inquiry in considering whether fresh evidence should be received.  The first step is to determine whether the evidence could have been reasonably adduced at the hearing: see R v Barker [1976] 1 NZLR 419. There is no dispute between the parties that this particular evidence of Mr Nathan Melgers could not reasonably have been adduced at the hearing. This therefore requires the Court to consider the second step.

[7]      The second step then requires the Court to assess whether the evidence is credible and capable of being believed.  This in turn leads to three possible options:

(a) the fresh evidence is true and is conclusive of the appeal in which case the conviction would be quashed; or

(b) while the Court is not satisfied that the fresh evidence is true, nevertheless that evidence might be accepted by the Tribunal as fact in which case a new trial would be ordered; or

(c) the Court rejects the new evidence in which case the appeal is determined as if that evidence had not been tendered.

[8]      The overriding criteria is what will best serve the interests of justice: see R v Bain  [2004] 1 NZLR 638 (CA). The key issues are related to freshness, credibility and whether the evidence might reasonably have led to a finding of not guilty at the trial.

The evidence

[9]      Mr Nathan Melgers described in some detail the events of 8 March 2009, the day of the burglary.  He said that he was around at the address of the appellant that day but between 8pm to 9pm left the address and returned to his own address in

Morrinsville.   He then says that he picked up tools and four 25 litre containers in order that he might go out with his father on a mission to steal petrol from farm tanks.  He provided the bolt cutters and the containers and that this was a common practice in which he and his father participated.   He explained that such dishonest activities had taken place over the last couple of years.

[10]     It seems that Mr Nathan Melgers ended up at his father’s home in Matamata where the father loaded four further 25 litre containers into a vehicle.  This was for the father’s share of the petrol to be stolen.  There is an issue as to how Mr Nathan Melgers travelled between Morrinsville and Matamata and I am not satisfied that I have heard the truth about how that occurred.

[11]     Mr Nathan Melgers gave the Court the impression that he travelled in a white Nissan Bluebird vehicle.  Later, when challenged by the Crown prosecutor, he said he  drove  his  silver  Ford  Falcon  from  Morrinsville  to  Matamata.    It  turns  out, however, that the Ford Falcon was not his vehicle at all.   It was registered to his father and was the vehicle that was found a short distance away from the scene of the burglary at the property in Te Poi later that evening.

[12]     Mr Nathan Melgers gave evidence about his participation in the burglary. This is in complete contradistinction to what he told the Police at the time when he was asked about his involvement in the burglary.  He told the Police then that his role was minimal and that he had been just a “lookout”.  Incidentally, it was on that basis that he was sentenced following his plea of guilty in the District Court.

[13]     The evidence that Mr Nathan Melgers gave in court today told a completely different story.  He described in evidence certain events inside the property that was being burglarised and also described how goods from the house were taken back in bags to the silver Ford Falcon vehicle, which had been parked some distance away. Not only were goods stolen, but a vehicle of the property owner was loaded up and driven away to where the silver Ford Falcon was parked.

[14]     Mr Nathan Melgers then described how he returned towards the property that was being burgled, went inside and having just entered the house, the owners of the

property arrived with both him and his father still inside the house.  He managed to exit via a ranchslider and hid in a paddock a short distance away waiting for his father.

[15]     The problem was that one of the owner’s apprehended the father and a fight developed.   The owner managed to restrain Mr Michael Melgers and suffered significant injuries in so doing.  A short time later, the Police arrived and arrested the father at the scene of the crime.

[16]     Mr Nathan Melgers then left the scene and claims to have started walking back towards Matamata.   He said that he then sent a text message to his partner, Tania Gourlay who then came out from Morrinsville in the white Nissan Bluebird to pick him up and take him back home after the burglary.

[17]     In the course of his evidence, Mr Nathan Melgers claimed that the actual burglarising of the house was carried out by him and his father.   Goods and the owner’s car were stolen by him and his father.   The appellant was said to have played no part in what took place inside the house.  This is completely contrary to what Mr Michael Melgers told the Court at the trial of Mr C  .  He said that it was Mr C   who was involved in the events inside the house being burgled.

[18]    Mr Nathan Melgers was cross-examined on the point as to whether the appellant’s vehicle had been at his father’s address in Matamata that evening.  He seemed in his evidence to acknowledge that the vehicle was at the father’s address, but that he claimed not to know how it got there.

[19]     The above is but a brief summary of evidence extending to approximately 20 pages of transcript.

Respondent’s submissions

[20]     The Crown submitted that this evidence is not credible and capable of being believed.  Ms Cameron submitted that the Court should reject the new evidence in

which case the appeal would need to be determined as if the evidence had not been tendered.

[21]     Ms Cameron submitted that there were two significant problems with the evidence of Mr Nathan Melgers.   The first related to inconsistencies within the evidence itself.  But more importantly, there was inconsistency between his conduct after the arrest and conviction of the appellant and what he was now telling the Court today.  Ms Cameron submitted that Mr Nathan Melgers had not behaved in the way of a person who is genuinely troubled by the charging of an allegedly innocent person.

[22]     It seems that, after the appellant had been convicted on 9 March 2009, the Police were given information implicating Mr Nathan Melgers and his partner Tania Gourlay.  An officer went to interview Mr Nathan Melgers on 15 March 2009.  At that point, Mr Nathan Melgers gave a statement admitting his own involvement but solely as a lookout.  He had been asked to tell the Police everything he knew.  What he told the Police then was vastly different from what he has now told this Court on oath today.  He sought at that time to minimise his involvement by saying he was just there to keep an eye on the vehicles.

[23]     Ms Cameron submitted that at that point, having made the admission, he had nothing to lose because he in fact put himself at the scene and it would have been inevitable that he would be charged with burglary.

[24]     After Mr Nathan Melgers was charged and convicted it seems that he wrote a letter (exhibit 1) headed up “to whom it may concern”.  That letter was apparently given to the appellant who in turn gave it either to his lawyer or others.  The letter eventually found its way to the Police.  In the letter, Mr Nathan Melgers had said that he was “at the burglary, Gary was not there”.  He added that he was “willing to be a witness for Gary C   when needed”.   He added “please do not hesitate to contact me”.

[25]     A Police C   then contacted Mr Nathan Melgers to ask him about what in fact happened.  But he proved unwilling to co-operate with the Police.  In rather

rude and aggressive terms he told the Police to leave.  He rejected the opportunity to provide a detailed statement about the matter.  This is to be compared with what he told the Court today.

[26]     The second difficulty mentioned by Ms Cameron was the question relating to the vehicles said to have been used in the course of the burglary.  She referred to significant inconsistencies in the evidence of Mr Nathan Melgers relating to the movements of the white Nissan Bluebird and the silver Ford Falcon.   She also submitted that Mr C  ’s car had been at Mr Michael Melgers’ property, a point reluctantly accepted by Mr Nathan Melgers in cross-examination.

[27]     I agree that the evidence was inconsistent.  At one point I formed the clear impression that Mr Nathan Melgers was endeavouring to mislead the Court on this topic.   Ms Cameron submitted that the evidence was not credible and capable of being believed and she submitted that this Court should reject the evidence and deal with the matter as if the evidence had not been tendered.

Appellant’s submissions

[28]     For  the  appellant,  Mr  Wright  accepted  that  there  had  been  delays  in Mr Nathan Melgers coming forward to tell the full story.  But this was at an earlier stage  when  he  was  unwilling  to  declare  his  own  hand.    He  would  have  been concerned that, if he had disclosed earlier what he was now disclosing to the Court, this was in direct conflict with the evidence given by his father at the trial of the appellant.   This evidence would, in counsel’s submissions, have had the effect of “putting the father further down the river”.

[29]     This  submission  is  a  reference  to  the  conflict,  indeed  serious  conflict, between the evidence of Mr Nathan Melgers and that of his father, Mr Michael Melgers given at the trial of the appellant.  The two witnesses cannot both be telling the truth.

[30]     Mr Wright submitted that it is true that Mr Nathan Melgers had opportunities to explain the position earlier but it was his practice, given his previous dealings with

the Police and no doubt because of his extensive dishonest activities, to say as little as possible to the Police.  Counsel accepted that Mr Nathan Melgers had not been very frank.  It was only when questioned in Court on his affidavit that any adequate level of detail was provided.

Disposal

[31]     It is for the Court to decide into which category this evidence falls under the test in McCabe.   I am not satisfied that the fresh evidence is true.   In fact, I have found Mr Nathan Melgers a wholly unsatisfactory witness and lacking in credibility and reliability.  A number of features of his evidence strain the limits of veracity and leave the Court in serious doubt as to his credibility, veracity and reliability on much of what he has said about the burglary and his role in it.  I am also not satisfied that he has told the whole truth about what he knows about the appellant’s role in the events of 8 March 2008.

[32]     The next question is whether, while not being satisfied the fresh evidence is true, it might be accepted by the decisionmaker of fact.  The difficulty here is that this incident seems to have involved a number of parties.  The first is Mr Michael Melgers, who was convicted and sentenced for his part in the burglary, he having been  apprehended  at  the  scene.    The  second  is  Mr  Nathan  Melgers  who  was convicted and sentenced on the basis of his self-stated minimal role as a lookout, that is, his task was to keep an eye out for the vehicles.  Further, his partner Ms Tania Gourlay has been charged with providing assistance and has pleaded not guilty.  That matter has yet to go to trial.

[33]     So the question is whether in the context of the activities of these other persons, the evidence of Mr Nathan Melgers might have made a difference had it been able to be heard by the decisionmaker when the appellant’s case was before the District Court.  I have to determine that issue on the basis of what will best serve the interests of justice.

[34]     In conclusion, I have real doubt as to whether much of what Mr Nathan

Melgers said is true.  But some parts of it might be.  Such an assessment needs to be

made in the context of all of the other evidence, much of which was not before me.  I am  therefore  left  in  the  position  where  his  evidence  might  be  accepted  by the decisionmaker of fact, and that puts the matter into the second category referred to in McCabe.

Outcome

[35]     I therefore propose to admit the new evidence.   On that basis, counsel are agreed that the correct position would be for me to allow the appeal and refer the charge against the appellant back to the District Court for a rehearing.

[36]     I would only add that there are a number of matters which have been led in evidence today, probably for the first time, and which will require very careful investigation by the Police.

[37]     I  am  particularly  concerned  about  this  evidence  and  indeed  when  it  is compared  with  the  evidence  given  by  Mr  Michael  Melgers  at  the  trial  of  the appellant, which I read in the notes of evidence at the District Court, the two stories just cannot sit together.   One or the other is telling lies.   One or the other has committed perjury, and of a serious kind.

[38]     Once this matter is referred back to the District Court and is dealt with, I invite the Crown Solicitor to consider the question of perjury and have all relevant issues thoroughly investigated.  I will say no more than that at this stage.

Result

[39]     The  appeal  will  therefore  be  allowed  and  the  case  remitted  back  to  the

District Court for rehearing.

Stevens J