Clutterbuck v The Queen - [2017] NZCA 361

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2017
[2017] NZCA 361

BETWEEN	RICHIE STUART CLUTTERBUCK Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2017
Court:	French, Simon France and Toogood JJ
Counsel:	T W Fournier for Appellant I R Murray for Respondent
Judgment:	22 August 2017 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Following a trial by jury, Mr Clutterbuck was convicted of the sole charge of burglary. He appeals the conviction on the basis that his trial counsel failed to follow instructions, which led to a miscarriage.

Facts

In the early hours of 21 January 2016, a timber yard (ITM Building Products) was broken into, and timber was stolen. Access was by way of a padlocked gate. Police found on the ground at the scene the top portion of a U-shaped shackle padlock, suggesting the application of bolt cutters to the padlock.
A neighbour living near the yard observed the theft occurring. The neighbour testified that earlier that night on two occasions — 10.00 pm and 11.45 pm — she had seen a truck stopped near the yard. On the first occasion the truck was just parked there for 15 minutes; on the second occasion the driver left the vehicle, crossed the road and shook the padlocked gates.
On the third occasion, that of the burglary, what the neighbour believes was the same truck was again stopped on the road. A man got out with a “big long set of bolt cutters” and approached the gate. The truck was then backed in and she saw the man loading wood onto the back of the truck. The neighbour noted no signage on the truck.
The neighbour had rung the police when she saw the man with the bolt cutters. However, by the time they arrived the truck had left. Mr Clutterbuck was located shortly after (around 1.20 am) in the vicinity driving a small truck/flat deck ute. Affixed by masking tape to each door of the vehicle was a large handmade paper sign with the letters “ITM” written on them in masking tape (recalling the timber yard is ITM Building Products). There was no timber on the vehicle, nor were bolt cutters located. There were some smaller snips. The truck had false plates, with further plates stored underneath the ones showing. The general description given by the neighbour of the man’s build was consistent with Mr Clutterbuck (and many others of course).
Mr Clutterbuck had in his possession the bottom half of a padlock from which the top half, the U-shaped shackle, had been cut off. The proposition advanced at trial was that the piece found on the ground at the timber yard, and the part in Mr Clutterbuck’s possession, were two halves of the same lock.
The police did not have the padlock tested, relying on the jury to match the pieces. Nor did they have the timber yard produce its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clutterbuck v The Queen

Details

AGLC: Clutterbuck v The Queen [2017] NZCA 361
Case: [2017] NZCA 361
Decision Date: 22 August 2017 at 3.00 pm

CaseChat Overview and Summary

Richie Stuart Clutterbuck appeals against his conviction for burglary, contending that his trial counsel's failure to follow instructions resulted in a miscarriage of justice. The Court of Appeal of New Zealand considered whether the counsel's decisions constituted a miscarriage of justice, particularly focusing on three areas where evidence could have been presented to assist Mr Clutterbuck's defence. These included testimony from a witness, evidence regarding the colour of his clothing, and evidence about a padlock.

The court began by noting the principle that the focus must be on whether there has been a miscarriage of justice, rather than the gravity of the counsel's error. The court emphasized that the appellant must show what evidence was omitted and its potential impact. The court analyzed each piece of evidence in turn. Regarding the potential testimony from Ms Mitchell, the court found that the counsel's advice not to call her was sound, and that no miscarriage had arisen from her non-testimony. As for the property sheet and CCTV footage, the court observed that these had not been obtained for the appeal, and it was speculative to assess their potential impact. Finally, the court found that while the counsel erred in not seeking testing on the padlock piece, this did not occasion a miscarriage of justice, especially given the lack of care in preserving the piece.

The Court of Appeal concluded that no miscarriage of justice had occurred, and the appeal was dismissed. The court emphasized that the errors, while debatable, did not reach the level of significance required to constitute a miscarriage of justice.

Orders