Christian v The Queen
[2017] NZCA 296
•11 July 2017 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA666/2016 [2017] NZCA 296 |
| BETWEEN | JORDAN ALEXANDER CHRISTIAN Appellant |
| AND | THE QUEEN |
| Hearing: | 20 June 2017 |
Court: | Asher, Venning and Dobson JJ |
Counsel: | M A Simpkins and G Oudyn for Appellant |
Judgment: | 11 July 2017 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is allowed and the conviction for theft is quashed.
BThere is no order for a retrial.
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REASONS OF THE COURT
(Given by Dobson J)
This appeal is brought from a conviction for theft of a motor vehicle that the Crown now accepts should not have been entered. The primary issue is what ought to occur as a consequence of that conviction being quashed. The appellant argued that no further action be taken. The Crown argued that the Court should substitute a conviction for receiving the vehicle in question.
For reasons explained below we quash the theft conviction, and decline to substitute it with a conviction for receiving the motor vehicle in question.
The factual background
The appellant (Mr Christian) and his eight co‑defendants were members or associates of the Head Hunters motorcycle club. The complainant in the case, Mr Perry, had a sexual encounter with the girlfriend of Mr Dwyer, one of the co‑defendants, leaving her with certain injuries which Mr Dwyer considered were the result of Mr Perry having raped her.
Mr Dwyer enlisted the help of his eight co‑defendants to pursue retribution which allegedly included extorting property from Mr Perry. The interactions of various of the defendants with Mr Perry involved their taking possession of three motor vehicles: an Audi; a Volkswagen; and the vehicle directly relevant to the charge in question, an Isuzu Elf truck.
The confrontations between the defendants and Mr Perry began at a house owned by Mr Perry at Lake Tarawera. Some of the defendants were driven there by Mr Maraffio, an employee of Mr Perry who was prevailed upon to take them to Lake Tarawera in the Isuzu Elf from another of Mr Perry’s homes in Mt Maunganui. Mr Perry was taken from his Lake Tarawera home in his Audi and was driven by one of the defendants to another of Mr Perry’s properties in Acacia Bay at Taupō. The Volkswagen was taken from the Lake Tarawera property at around the same time. Doubt was cast on Mr Perry’s identification of Mr Christian as the man who travelled in the back seat of his Audi on the journey from Lake Tarawera to Acacia Bay, when he was unable to confirm that in cross-examination.
It was clear that Mr Christian was at Mr Perry’s Acacia Bay property from his DNA being present and from other evidence. After some hours at the Acacia Bay property a number of the defendants drove Mr Perry in his Audi into central Taupō. There he withdrew $10,000 from a bank and handed $7,000 of this to one of Mr Christian’s co‑defendants. Mr Perry’s belief was that the co‑defendant who received the money and Mr Christian were due this cash as a consolation prize because they were not going to receive one of Mr Perry’s vehicles.
A number of the defendants continued with Mr Perry in his Audi towards Hamilton, but Mr Christian did not remain in that vehicle once it left Taupō. Mr Perry was able to escape from the Audi when it stopped at a petrol station in Ngongotaha and the Audi was later found with changed number plates at a house in Hamilton.
The Isuzu Elf was driven from Lake Tarawera after Mr Perry and some of the others had left in the Audi. The co‑defendant Mr McDonnell drove the vehicle taking Mr Maraffio with him. Mr McDonnell received a text from an unidentified person who requested that he go to a moto‑cross track near Mr Christian’s address. Mr Maraffio was transferred from the Isuzu Elf into another vehicle and later from that vehicle into the Volkswagen. Mr Maraffio was driven in the Volkswagen to a remote location where he was left alone in the vehicle and was able to drive to safety.
Some three weeks after these events the police found the Isuzu Elf parked in a shed at Mr Christian’s address in Matata. Items that had been on the truck had been moved on to the floor of the shed and there was some suggestion that portable scaffolding that had been on the truck, but was sitting next to it, had been used.
Mr McDonnell’s fingerprints were found on the Isuzu Elf, but not Mr Christian’s. He provided no comment to the police and did not give evidence at trial.
The outcome at trial
The charging document originally contained some 100 counts, but that number was substantially reduced by the time of closing arguments. The charges included kidnapping Mr Perry, extorting money from him and theft of his various vehicles. At the close of the Crown case Brewer J discharged Mr Christian on all of the alleged offending that preceded the events at Acacia Bay. He did so because of the uncertainty as to Mr Christian’s presence at the Lake Tarawera property and the further uncertainty as to when he joined any common purpose with the other defendants.
The jury returned guilty verdicts on only four of the less serious charges. The Crown accepted the pattern of acquittals raised doubts as to whether Mr Perry had been assaulted and held against his will and whether he handed the $7,000 over under pressure.
The Crown case put to the jury included the relevant charge against Mr Christian of his being a party to the theft of the Isuzu Elf under s 66(1) of the Crimes Act 1961. The Judge formulated questions for the jury in considering this charge in the following terms:
THEFT – ISUZU ELF
Charge 54 – Mr Christian
Are you sure that on or about 17 February 2015 at Rotorua:
(a) A person took Mr Perry’s Isuzu Elf;
(b) Dishonestly and without claim of right; and
(c) With intent to deprive Mr Perry of the Isuzu Elf permanently; and
(d)Mr Christian either was that person or aided or encouraged the person, knowing that the person was stealing the Isuzu Elf?
If your answer to ANY of (a), (b), (c) or (d) is “No”, then you must find Mr Christian “not guilty” on this charge.
If your answers to ALL of (a), (b), (c) and (d) are “Yes”, then you must find Mr Christian "guilty" on this charge.
Six co‑defendants were individually charged in the same terms with being parties to the unlawful taking of the Isuzu Elf under s 66(2) of the Crimes Act. An example of the terms of the Judge’s question trail on those charges were as follows:
Charge 58 – Mr McDonnell
Are you sure that on or about 17 February 2015 at Rotorua:
(a) A person took Mr Perry’s Isuzu Elf;
(b) Dishonestly and without claim of right; and
(c) With intent to deprive Mr Perry of the Isuzu Elf permanently; and
(d)Mr McDonnell either was that person or had formed a common intention with that person to extort property from Mr Perry using violence or threats of violence, and to assist each other in doing so; and
(e)Mr McDonnell knew that in carrying out the common intention it was a probable consequence that motor vehicles belonging to Mr Perry would be stolen, and that is what happened?
If your answer to ANY of (a), (b), (c), (d) or (e) is “No”, then you must find Mr McDonnell “not guilty” on this charge.
If your answers to All of (a), (b), (c), (d) and (e) are “Yes”, then you must find Mr McDonnell “guilty” on this charge.
No issue was taken with the accuracy of these questions as reflecting the issues required to be determined on the respective charges.
None of the co‑defendants who were charged with the theft of the Isuzu Elf under s 66(2), including Mr McDonnell, were convicted.
Brewer J entered a conviction on charge 54 promptly after delivery of the jury verdicts. On the following day, 8 December 2016, he issued a minute raising the question as to whether that conviction was necessarily inconsistent with the acquittals of the other defendants. The Judge invited a memorandum from the Crown setting out its position.
After receiving a joint memorandum on 9 December 2016 Brewer J issued a minute taking the view that he did not have jurisdiction to reverse the conviction, with only this Court having the jurisdiction to do so. The minute acknowledged the prospect of substituting a conviction for receiving the Isuzu Elf. The Judge indicated, bearing in mind the amount of time that Mr Christian had spent on restrictive bail conditions and the nearly seven weeks of remand in custody during the course of the trial, that the likely outcome would be for him to discharge Mr Christian without further penalty. That course subsequently ensued, leaving Mr Christian with a conviction and discharge for the theft.[1] As implicitly invited by the Judge, he has pursued this appeal to challenge the conviction.
[1]R v Christian [2016] NZHC 3051.
We are satisfied that Mr Christian’s theft conviction cannot stand. There is no evidence that he was either present at the time the vehicle was taken from Lake Tarawera, or that he aided, abetted, incited or counselled one of his co‑defendants to take the vehicle. Further, there has been no conviction of a principal party for the theft. On the Crown case, the principal would necessarily have been one of the co‑defendants, most likely Mr McDonnell, and their acquittals prevent the Crown proving Mr Christian’s involvement as a participant supporting such principal in one of the ways provided for in s 66(1) of the Crimes Act.
Mr Simpkins also advanced alternative grounds for challenging the conviction entered against Mr Christian for theft of the Isuzu Elf. These included errors Mr Simpkins contended had been made in the Judge’s summing-up, and in the Judge’s anticipatory reaction to an application under s 147 of the Criminal Procedure Act 2011 to discharge Mr Christian. Mr Simpkins had signalled such an application in respect of this charge after the Crown closing. At that point, the Judge had raised the prospect of granting the Crown permission to expand the party basis of liability alleged against Mr Christian to include s 66(2). Mr Simpkins’ response was to abandon the s 147 application.
It is unnecessary to consider these alternative grounds. They each go to the prospect of material error leading to the conviction that has been quashed. They do not assume relevance in analysing whether a substituted conviction should now be ordered.
Should a conviction for receiving the Isuzu Elf be substituted?
The Crown submitted that the appropriate outcome of the appeal was for this Court to substitute a conviction for receiving the Isuzu Elf as stolen property.
If a first appeal court allows a convicted person’s appeal against conviction on one offence (Offence A), then s 234 of the Criminal Procedure Act applies. Subsection (2) of that section provides:
(2) The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—
(a) the person could have been found guilty, at the person’s trial for offence A, of offence B; and
(b) the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.
Applying that provision to the present circumstances means that before the Court has a discretion to impose a conviction for receiving it must be satisfied that Mr Christian could have been found guilty at his trial of receiving the Isuzu Elf, and that the jury must have been satisfied of the facts that prove Mr Christian guilty of that offence.
In addition, the circumstances of the substitution of a charge for receiving must be such that, had the issue of an amended charge been raised during the trial, the requirements for amendment in s 136(1) of the Criminal Procedure Act would also have been satisfied. The relevant provisions of that section provide as follows:
136 Procedure if charge amended during trial
(1)Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—
(a)there appears to be a variance between the proof and the charge; and
(b)the amendment will make the charge fit with the proof.
In the present situation the s 136(1) requirements for variance between the proof and the charge, and that an amendment would make the charge fit with the proof raise similar considerations to those on which the Court must be satisfied under s 234(2).
Ms Ewing invited the Court to substitute a conviction for receiving, advancing the following propositions:
(a)there was evidence to support a conviction for receiving;
(b)the jury’s view of the facts as indicated by Mr Christian’s conviction for theft meant that they would have convicted him of receiving the Isuzu Elf; and
(c)Mr Christian could not identify prejudice arising from not being aware, throughout the trial, that he was facing the different charge of receiving instead of that of theft.
Ms Ewing’s argument was put in terms that there was evidence on which the jury could reasonably have found that the Isuzu Elf had been stolen, and could reasonably have found that Mr Christian received the truck either being aware that that was so, or being reckless as to whether the truck had been stolen or not.
The difficulty with each of those propositions on the state of the evidence is that it was equally open to the jury to find that they were not satisfied that the relevant factual propositions had been made out beyond reasonable doubt. Indeed the acquittals of all of Mr Christian’s co‑defendants charged with being parties to theft of the Isuzu Elf, and more generally the effect of the acquittals on the vast majority of the other charges, indicates that the jury did not accept at least some material parts of Mr Perry’s evidence as to what occurred.
Relevant to the charge of theft of the Isuzu Elf is the jury’s acquittal of Mr McDonnell as a party to that theft. Evidence was presented that Mr McDonnell drove the Isuzu Elf away from the Lake Tarawera property and that his fingerprints were found on the truck when discovered at Mr Christian’s property. That the jury acquitted Mr McDonnell in those circumstances, raises the reasonable prospect that the jury was not satisfied beyond reasonable doubt that he took it dishonestly, or that he intended to deprive Mr Perry of the Isuzu Elf permanently. The existence of a reasonable doubt on those elements is inherently more likely than the prospect that Mr McDonnell’s acquittal occurred because the jury was not satisfied that he shared with his co‑defendants a common intention which had the probable consequence that the Isuzu Elf would be stolen.[2] The existence of those reasonable doubts prevent the Crown bringing the prospect of a substituted conviction within s 234(2)(b) because it cannot establish that the jury must have been satisfied that Mr Christian was guilty of receiving.
[2]Per question (e) in the question trail quoted at [14] above.
In this evaluation, we put to one side the fact of the jury’s conviction on the charge of theft. In treating that conviction as one that cannot stand, it is implicit that it is unsafe in respects that include the jury’s analysis of the evidence relevant to the elements as identified in the Judge’s question trail for charge 54.
Given our analysis, it is unnecessary to comment on concerns about whether prejudice might arise from a potential substituted conviction. Section 234, while referring expressly to s 136(1), makes no reference to the concerns for prejudice to a defendant from an alteration to a charge that is raised in s 136(2). Nonetheless, prejudice remains of relevance. The power to substitute under s 234(2) is not mandatory and, as noted by the Court of Appeal in the context of earlier analogous provisions, such powers ought to be used sparingly.[3] Prejudice to the appellant, if proved, will point the Court away from s 234 and may lead to other outcomes which can include, in appropriate cases, directing a new trial under s 233(3)(b).
[3]Dixon v R [2014] NZCA 329, [2014] 3 NZLR 504 at [46].
We do, however, make the following observations regarding the argument that Mr Christian was relevantly misled or prejudiced in his defence by not knowing that he was vulnerable to a conviction for receiving rather than the theft of the Isuzu Elf. The Crown’s challenge to the existence of any prejudice depended on arguments that the scope of relevant evidence on each element was materially the same, so that Mr Christian could not claim that his defence would have been conducted any differently.
In contrast, Mr Simpkins argued that the offences of theft and receiving stolen property are distinct, and that the preparation of a defence would inevitably extend to consideration of different matters because the elements are themselves different. Mr Simpkins was reluctant to give any specific examples of how Mr Christian’s defence might have been conducted differently, had he been on notice, for example, from the outset that the charge was one of receiving the truck rather than of theft. Mr Simpkins indicated that he had not taken instructions from Mr Christian on how he might defend the alternative charge, and suggested he could not be expected to have done so.
We incline to the view that an appellant in Mr Christian’s position might need to do more than the stance adopted by Mr Simpkins to prevail on the assessment of prejudice. We do, however, accept that where the elements of the charges are different, the court will be reluctant to dismiss the prospect of prejudice without careful consideration.
Outcome
The appeal against conviction is allowed.
Accordingly, we quash the conviction for theft of the Isuzu Elf and decline to substitute a conviction for receiving it.
There is no order for a retrial.
Solicitors:
Lance Lawson, Rotorua for Appellant
Crown Law Office, Wellington for Respondent
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