Chin v The Queen

[2004] NZCA 86

IN THE COURT OF APPEAL OF NEW ZEALAND

CA43/04

THE QUEEN

v

PATRICK KITMAN CHIN

Hearing:26 and 27 May 2004

Coram:William Young J
Williams J
Wild J

Appearances:  J J McCall for Appellant

C J Lange for Crown

Judgment:10 June 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Nature of appeal

[1]       On 18 December 2003 the appellant, Mr Chin, faced sentencing on the following:

a)Earlier that day he had been convicted by a jury on one count of burgling the Coringa Golf Club near Christchurch on 5 July 2003.  The jury had acquitted him on a charge of unlawfully taking a motor vehicle the same day. 

b)Mr Chin had earlier pleaded guilty to four charges of theft committed on 26 May 2003.

c)On 2 July 2003 Mr Chin had been sentenced to 150 hours community work for the count of theft committed on 13 May 2002 plus charges of possession of cannabis plant and possession of instruments for burglary.  Having failed to undertake that sentence, principally because he had been in custody since 14 July 2003, the Probation Service applied to the District Court to cancel that sentence and impose another.

[2]       On that day Judge Moran sentenced Mr Chin:

a)To three years imprisonment on the burglary.

b)To two months imprisonment on the four charges of theft.

c)To two months imprisonment on the charges of theft on 13 May, possession of cannabis plant and possession of instruments for burglary, the sentence of community work being cancelled.

[3]       All sentences were ordered to be served concurrently and outstanding fines of $1490 were remitted.

[4]       Mr Chin appealed to this Court against both the conviction on the burglary and the sentence imposed.  Although Mr McCall’s submissions for the appellant mentioned the sentences imposed on the counts additional to the burglary, formally there was no appeal lodged against those sentences and they did not bulk large in his submissions.

Grounds of appeal

[5]       The appeal against conviction was argued principally on the basis of radical error on the part of counsel who appeared for Mr Chin at trial – not Mr McCall – for failure to comply with instructions to call the appellant and a Ms Gardener to give evidence.

[6]       The appeal against sentence was brought on the conventional ground that it was manifestly excessive in the circumstances.

Facts

[7]       According to the Police summary of facts, Mr Chin and Ms Gardener with others drove in a converted car to the Coringa Country Club on McLeans Island Road, Christchurch arriving at about 10:40pm on 5 July 2003.  The Police asserted Mr Chin and possibly others smashed his or their way into the clubhouse and removed some 50 cent pieces and $112 worth of $2 coins from three gaming machines.  The caretaker disturbed whoever was in the clubhouse.  The Police said Mr Chin ran from the clubhouse to the grounds of the Vintage Car Club some distance away discarding the 50 cent pieces en route.

[8]       In evidence given at trial, a Police dog-handler said his dog located a track leading away from the bottom of an outside stairwell leading up to the clubhouse at the top of which was the point of entry.  The dog then followed the scent across McLeans Island Road to the Vintage Car Club, deviating only to locate a cashbox.  The dog’s behaviour indicated only one person’s track was present.  The track led to the Car Club’s premises.

[9]       Mr Chin phoned a taxi from the Vintage Car Club but was arrested by Police as it prepared to leave with fifty-eight $2 coins, twenty-two 50 cent coins and sundry other denominations in his possession.  His explanation to Police was that he had won the money playing gaming machines at clubs and the Woolston Working Men’s Club earlier that day.  A Mr Young, a defence witness, confirmed being with Mr Chin visiting various bars and the Working Men’s Club, playing “pokies” during the day.  He said Mr Chin had been successful on the machines. 

[10]     Mr Chin was identified by the bar manager, the taxi driver and the constable who stopped the taxi.  He denied to Police stealing the vehicle or committing the burglary.

[11]     The Crown alleged Ms Gardener departed in the vehicle but it became stuck, she alighted and walked to the caretaker’s home where she was located by Police and arrested for conversion and burglary.

[12]     Late in the evening of 5 July 2003 she made a statement to the Police in which she spoke of attending a party earlier that evening in company of a number of named persons, leaving in a car in an intoxicated condition with “Dali and two of his friends”, dropping someone off, falling asleep and being awakened when the car went in a ditch and she heard an alarm.  She said she was the only person in the car at that stage because the driver, Dali, and “everyone there ran away”.  She described “Dali” as “Maori, about 17-20 years old, he is a friend of my brother Tai” with the other “guy” being Maori about the same age.  She admitted driving the car from the clubhouse to where it was located.

[13]     Ms Gardener was jointly charged with Mr Chin but at some stage prior to trial she pleaded to the conversion charge, the count of burglary was withdrawn and she received a community-based sentence.

[14]     Additional facts pertinent to the appeal include:

a)At the scene Ms Gardener told the golf club caretaker there were two men in the car with her.

b)A check after the burglary showed $180 missing from two gaming machines which would all have been in $2 coins.  The third machine could not be checked.  That contrasted with the fifty-two 50 cent coins discarded about sixty metres from the Clubhouse.

c)The Police located a shoe-print on an internal door leading to the golf club bar.  It did not match the shoes Mr Chin was wearing on apprehension.

Evidence on appeal

[15]     Mr Chin sought leave to adduce further evidence on appeal and waived privilege in respect of trial counsel.  The Crown did not oppose.

[16]     To his affidavit filed before the hearing, Mr Chin exhibited Ms Gardener’s Police statement and said he instructed trial counsel to call her to establish he was not present when the car was in the golf club carpark and to say he was not one of the three men in the car who ran off at the Police approach.  He denied taking part in the burglary but accepted that he must have been in the car with Ms Gardener, her brother Tai Gorrie, and “Dali” though unable to remember due to gross intoxication.

[17]     He also said he instructed trial counsel to call him to give evidence but was told it was “too late” as he would be called out of order and without counsel referring to his evidence in opening.

[18]     However, in evidence to this Court, he said on several occasions he wanted Ms Gardener in Court because she had been jointly charged with him and it would be unfair for her not to be present and give her side of the story, namely there were others at the burglary, not just Mr Chin.

[19]     In cross-examination he agreed he discussed the evidence with trial counsel several days beforehand and again during the trial and reluctantly accepted her advice against giving evidence though acknowledging her statement that if clearly instructed so to do, she would call him.  His last request had been when Mr Young was giving evidence and when he thought his trial was not going well.

[20]     In her affidavit filed before the hearing, trial counsel detailed her pre-trial discussions with Mr Chin about the occupants of the car and said on 5 September 2003 Mr Chin offered to contact them to see if they would give exculpatory evidence.  He never did so.  Then, on 16 October, she was instructed to call Mr Young and gave the Crown the required alibi notice.  She said the Crown told her on 5 December they did not intend to call Ms Gardener.  She had no file note or recollection of ever being expressly instructed to call her as Mr Chin averred.  She spoke with Mr Young on 11 December and heard Mr Gorrie’s name for the first time.

[21]     She said discussions about Mr Chin giving evidence began before trial and continued during it with him indicating a desire to give evidence but accepting her advice that his giving evidence would be against his interests and would risk his conviction on both counts were he not believed.  She said she recalled telling Mr Chin “it was not advisable for him to give evidence but if he instructed me to do so I would have to follow those instructions” and would require them in writing signed by the appellant.  She said he was resistant to returning to Court after that advice because he thought his case was not going well, he thought the jury were adverse to him, he wanted the jury discharged, he wanted Ms Gardener there because she and the others had “got off” the burglary and he was the only person charged with it and that the Police were “out to get him” and other issues.

[22]     She adhered to those views in her evidence on appeal though accepting she heard of Tai Gorrie earlier than 11 December but in relation to another charge on which she was acting for Mr Chin.  She accepted Ms Gardener’s statement omitted any reference to Mr Chin running away from the car but said evidence to that effect from her was only possibly helpful since Mr Chin was located at the end of the track taken by the dog.  She pointed to Mr Chin’s acceptance of his being in the car but said his defence was on the basis he did not commit the burglary and left the scene while others were committing the crime.  She accepted the descriptions of the other occupants in Ms Gardener’s police statement were not given in evidence.

[23]     While acknowledging Mr Chin being more definite about giving evidence on the morning of the second day of trial, she said he would not sign instructions requiring her to call him and never, in fact, did so.  She thought that the likelihood of criticism from the Crown and, probably, from the Bench at her failure to open on his evidence and the point at which it was called was such his giving evidence was not tactically sensible.

Submissions re conviction

[24]     There was no disagreement between counsel as to the principles to be applied in relation to the conviction appeal.

[25]     An appellant must first establish that counsel received clear instructions as to the manner of conducting the trial and failed to comply with them;  or, secondly, that counsel’s failure or errors in the conduct of the trial amounted to radical error which could have prejudiced the outcome;  and thirdly, that counsel’s errors in either respect led to miscarriage of justice.

[26]     It is sufficient to recall the remarks in this Court in that regard appearing in R v S [1998] 3 NZLR 392, 394-395 where the following appears:

The Court must guard against any tendency on the part of accused persons who have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel. See R v Pointon [1985] 1 NZLR 109 at p 114. Two principal ways in which an appeal based on counsel’s conduct at the trial can succeed, however, have been recognised; one is where counsel fails to follow instructions, and the other is where counsel has made a radical mistake.

A counsel does not have the right to disregard instructions from his or her client. See R v McLoughlin [1985] 1 NZLR 106 at p 107. If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed and conveyed. See R v Lavery (Court of Appeal, Wellington, CA 342/95, 14 February 1996) at p 5. It must be clear that the instructions were not simply an expression of the client’s views on a particular matter but were intended to be directions to be observed and implemented by counsel. They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage. It is not enough, for example, for an accused to tell trial counsel that he or she “wants” or “wishes” a particular witness to be called. See Byford v R (Court of Appeal, Wellington, CA 74/93, 25 June 1993) at pp 3 – 4. Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice. See R v Reti (Court of Appeal, Wellington, CA 396/91, 22 November 1991) at p 9 et seq.

The other respect in which an appeal based on counsel’s conduct can succeed arises in those rare cases where the mistake in the conduct of the defence is so radical that a miscarriage of justice under s 385(1)(c) of the Crimes Act is made out.  See R v Pointon (supra) at p 114. In order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial. See R v Horsfall [1981] 1 NZLR 116 at p 123.

(See also R v Cook (CA200/03 3 September 2003 para [7] p3) and R v Williams  (CA427/01  27 June 2002 para [27] pp8-9)).

[27]     Mr McCall carefully canvassed the evidence, submitting Ms Gardener should have been called in Mr Chin’s defence as the only person identified at the scene and the only person able to provide a description of the other occupants, emphasising in that regard the descriptions given in Ms Gardener’s Police statement.  He submitted trial counsel made no effort to locate Ms Gardener’s brother or “Dali”.  Given there was no evidence the Police had undertaken that inquiry, that fact should have been put to Police witnesses when they spoke of their belief there was probably more than one burglar.  He submitted evidence from Ms Gardener of two other men in the car would have assisted Mr Chin in association with the shoe-print evidence and would have undermined the dog-handler’s evidence.  He also submitted trial counsel was obliged to call Mr Chin to give evidence at trial, particularly as to the provenance of the coins found in his possession.  Her conduct prevented that occurring.

[28]     For the Crown, Mr Lange submitted the evidence did not show clear instructions from Mr Chin to trial counsel to call both Ms Gardener and him to give evidence and that, in the circumstances, counsel’s advice was correct that it may have been inimical to Mr Chin’s interests to call that evidence.  There was, Mr Lange submitted, no certainty as to the evidence Ms Gardener may have given if called and evidence explaining the appellant’s possession of the coins had been covered by Mr Young.  He submitted evidence, particularly that relating to the shoe-print, made clear to the jury the likelihood more than one person was involved in the burglary thus justifying trial counsel’s submissions in closing that others may have been involved and emphasizing the scientific evidence did not point to the appellant.

Discussion concerning conviction appeal

[29]     In relation to Ms Gardener, we are satisfied on the evidence that Mr Chin gave no clear direction to trial counsel to locate and call Ms Gardener to give evidence for the defence.  While that topic was undoubtedly discussed, Mr Chin’s evidence suggested his principal motivation was chagrin that, by the time of trial, he alone of those present at the scene continued to face the count of burglary and the others had not been apprehended or, in Ms Gardener’s case, “got off”.  In our view, putting it at its highest for Mr Chin, there was accordingly no more than an ambiguous indication that Ms Gardener be called for the defence.

[30]     Had she been called, there must be doubt as to the evidence she might have given.  Even if it be assumed her evidence would have exactly reflected her Police statement – perhaps a substantial assumption – given Mr Chin’s acceptance that he was in the car, his being found at the Vintage Car club nearby immediately after the burglary by the police dog-handler and his inability to give trial counsel instructions as to events between the two which may have exculpated him in respect of the burglary, counsel would have had cause for scepticism not just as to the evidence Ms Gardener would give but as to what further admissions she may have made under cross-examination.  That is particularly the case given the evidence indicating more than one person was involved.

[31]     In those circumstances, we are unable to conclude either that trial counsel was expressly instructed to call Ms Gardener to give evidence or that, even were that not the case, the absence of her evidence was likely to have had a significant prejudicial effect on trial outcome.

[32]     A similar conclusion must also be reached in relation to Mr Chin not being called to give evidence.

[33]     Again our finding is that no clear instruction was given trial counsel to call him.  Certainly there was nothing in writing in that regard.  Trial counsel’s evidence as to the views she held concerning the inadvisability of Mr Chin giving evidence were compelling.  It seems his equivocation in that regard may have lessened by the morning of the second day of trial but the reasons for not calling him remained cogent and there was the additional factor of criticism that was bound to follow his being called at that juncture without prior notification.

[34]     We had the advantage of hearing from Mr Chin what he would have told the jury had he given evidence.  He could have given an innocent explanation for the coins found in his possession.  But such an explanation was in any event provided by his witness, Mr Young.  He would have been driven to accept that he must have been in the car with Ms Gardener.  He told us that he could not remember what happened at the Golf Club and the Vintage Car Club and the way he behaved when he was arrested.  Since he then had sufficient presence of mind to give exculpatory explanations to the arresting officer, such evidence, if given at trial, would have been of no assistance at all to him and, indeed, would have invited incredulity from the jury.  So even if there had been a firm instruction to trial counsel that he was to give evidence, failure to call him to give evidence would not, in the particular circumstances of this case, have resulted in a miscarriage of justice.

[35]     The appeal against conviction is accordingly dismissed.

Appeal against sentence

1.        Judge’s remarks

[36]     After recounting the background to all the offences for which Mr Chin was being sentenced, Judge Moran noted Mr Chin’s defence of being present at the Golf Club but not participating in the burglary but said (para [4] p2) that he “had the insurmountable difficulty of the dog-handler’s evidence that yours was the only trail”.  He recorded the aggravating features of Mr Chin’s case.  They included the number of offences, all committed in a short time while on parole or bail, his large number of convictions for dishonesty or drug offences and his eight previous sentences of imprisonment.  Mitigating factors were said to be his being a secondary party to the four thefts plus the plea of guilty, his youth, the moderate property loss and his lack of personal support (para [7] p3), though balanced against the “bleak” outlook in relation to reoffending.

2.Submissions

[37]     Mr McCall drew attention to the Judge omitting to set a starting point for the sentences imposed.  He submitted he also failed to adjust the sentence for aggravating and mitigating features.  Thus three years imprisonment was manifestly excessive in the circumstances and not within range having regard to Mr Chin’s criminality (R v Nguyen (CA110/01 2 July 2001 para [17] pp5-6).  He submitted the excessive length of the sentence was demonstrated by the lack of obvious planning or sophistication in the burglary, the small amount stolen and the premises being unoccupied.  He relied on R v McAllister (2001) 18 CRNZ 606, an unsuccessful appeal against three years imprisonment imposed on four counts of burglary of about $75,000 worth of property plus other dishonesty charges.  A starting point of four-and-a-half years was chosen in that case.

[38]     Mr Lange accepted it would have been preferable for the Judge to identify his starting point and his adjustments for aggravating and mitigating features but said Mr Chin fell within the recidivist burglar Category 2 identified in Senior v Police (2000) 18 CRNZ 340.  He drew attention to Mr Chin’s many previous convictions, including nine for burglary and another thirty for various dishonesty offences.  He made the point that this Court observed in R v Southon (2003) 20 CRNZ 104 para [13] p108 that Senior should be regarded as a helpful analysis of historic sentencing patterns but that, since it has been decided, “recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment”.

3.Discussion

[39]     Had the sentencing Judge identified his starting point and his adjustments for aggravating and mitigating features the manner in which he arrived at the sentence would have been more explicit.  But in this case what are said to have been the aggravating and mitigating features may simply be aspects of the underlying criminality so that, given that the case was defended, the starting point sentence was also the final sentence.  From his experience Judge Moran doubtless had cases such as Senior and Southon in mind when he imposed sentence.

[40]     Mr Chin was facing sentence having been convicted by jury on one count of burglary.  He had a number of previous convictions for the same offence.  He was also facing sentence for a number of dishonesty and drug offences.  Again, he had a large number of previous convictions in both areas.  All the offences for which he was sentenced on 18 December 2003 had been committed whilst Mr Chin was on parole or bail.  The mitigating features identified by the Judge were appropriate (although only modest credit could be given for his age since he was 24 at the time of sentence).  The prospect of his being dissuaded from reoffending was poor.  In those circumstances, it could not be said that the three year sentence imposed on Mr Chin for the burglary was manifestly excessive nor that the sentences imposed on the other offences fell into that category.

[41]     The appeal against sentence is accordingly also dismissed.

Solicitors:

Papprill Hadfield & Aldous, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch