Clutterbuck v The Queen
[2017] NZCA 361
•22 August 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA17/2017 [2017] NZCA 361 |
| BETWEEN | RICHIE STUART CLUTTERBUCK |
| AND | THE QUEEN |
| Hearing: | 24 July 2017 |
Court: | French, Simon France and Toogood JJ |
Counsel: | T W Fournier for Appellant |
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 keys which would, on the prosecution theory, open the padlock in Mr Clutterbuck’s possession. The case was really one of remarkable coincidences (location, signs on vehicle, padlock) versus some gaps — no confirmation the padlock pieces were from the same lock, no wood in the ute despite Mr Clutterbuck being stopped shortly after the theft and the police not locating the wood anywhere nearby, and no bolt cutters.
Mr Clutterbuck gave evidence. He said the truck belonged to a friend, Ms Mitchell. She had sold it but had not been paid so around 11.30 pm they went to retrieve it, and did so. They went in her car so he could drive the truck back. The truck overheated, so he rang Ms Mitchell to come with water.
Ms Mitchell walked with the water to where he had stopped. The truck restarted and they drove off, but they then had an argument. Ms Mitchell got out of the vehicle and walked off. Mr Clutterbuck drove away but then thought he should find her. He was endeavouring to do that when stopped by police. Mr Clutterbuck said he saw the sign on the driver’s door when he first took the truck but thought nothing of it; he also did not know it was displaying false plates. Concerning the bottom half of the padlock, the police witnesses had said it was in his jacket. Mr Clutterbuck disputed this and said it was on the floor of the truck and had been so prior to its sale. The purchasers must presumably have left it there.
Appeal
The appeal focuses on whether other evidence should have been presented that would have assisted Mr Clutterbuck’s defence. The evidence takes three forms:
(a)testimony from Ms Mitchell which, if accepted, would confirm how he came to be driving the truck, who else might have put the signs on the door, and how it could not have been Mr Clutterbuck who visited the timber yard on the earlier occasions in the evening (or at least in that truck);
(b)evidence that Mr Clutterbuck was not wearing clothing of the same colour as that described by the neighbour who observed the thief. This would have been done by obtaining either the property sheet created when Mr Clutterbuck was taken into custody, or CCTV footage of him in the holding cell; and
(c)evidence confirming that Mr Clutterbuck had located at his house the matching shackle for the padlock bottom he had in his possession. This would have been done by getting testing done on the shackle Mr Clutterbuck had located at his house and the two pieces that were in evidence.
The failure to present this evidence is laid at the door of trial counsel, Ms Linda Drummond. It is said Ms Drummond failed to follow instructions about calling the witness, and failed to take the necessary steps to secure the latter two items of evidence. This Court heard evidence from Mr Clutterbuck, Ms Mitchell and Ms Drummond.
Relevant principles
Before considering the evidence, brief comment on the relevant law will assist.
The starting point is R v Sungsuwan where the Supreme Court emphasised that the focus must always be on whether there has been a miscarriage of justice.[1] Counsel’s decisions may be relevant to that, but radical error by trial counsel is not required to establish a miscarriage has occurred. More recently this Court in R v Hall reviewed the topic of alleged counsel error.[2] The Court identified three fundamental matters over which a defendant had the absolute right to decide and concerning which counsel must follow or not act — the plea, the focus of the defence and the decision to testify.[3]
[1]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [69]–[70].
[2]R v Hall [2015] NZCA 403.
[3]At [65].
The emphasis in R v Sungsuwan on whether there has been a miscarriage had the effect of reducing the emphasis or focus on the nature of counsel’s error, and the then test of whether it was a “radical” error. The consequence of any errors was more important than assessing their gravity. R v Hall is consistent with this, but clarifies that some matters are so fundamentally tied to a defendant’s rights that errors in relation to them will almost always constitute a miscarriage.
With other alleged errors, it remains necessary to show a miscarriage has resulted. This imposes requirements for an appellant. If it is said a witness has not been called, it is not only relevant why they were not called, but what evidence they would have given. This should normally be provided by the witness who confirms they were available, and what evidence they were willing to give then and now. Likewise with absent real evidence, efforts should be made prior to the hearing of the appeal to produce that evidence for the appeal so that its potential impact can be assessed. For example, it is seldom of use to allege inquiries that could have been made unless evidence is now provided as to what information would thereby have become available. Otherwise the potential consequence of not making the inquiry remains speculative.[4]
[4]R v Hall, above n 2, at [144].
Against that background we turn to the alleged counsel errors. It is convenient to analyse the evidence given on appeal under each of the topics. We observe for completeness that no complaint is made about how Mr Clutterbuck’s evidence was led at trial.
Issue one — the failure to call Ms Mitchell
Ms Mitchell made a statement to police on the night. Ms Mitchell said to police:
(a)she had sold the truck a few days earlier for $500 but had not been paid;
(b)she decided she wanted it back so around 11 pm that night she took Mr Clutterbuck and went looking for it. The purchaser said to take it so she and Mr Clutterbuck left. Mr Clutterbuck drove the truck, Ms Mitchell drove another vehicle;
(c)around 12.30 am she rang him to inquire where the truck was. Mr Clutterbuck said the truck had overheated, so Ms Mitchell would walk from her house to find him, which she did; and
(d)she got in the truck and they drove off, but shortly thereafter she got out again. She did not hear from him again until he rang her having been stopped by police.
Relevant to the prosecution case, the evidence would confirm how Mr Clutterbuck came to be in the truck, and would exclude it being Mr Clutterbuck in that truck on the earlier visits to the ITM yard seen by the neighbour.
There was a conflict in evidence between trial counsel, Ms Drummond, on the one hand, and Ms Mitchell and Mr Clutterbuck on the other. It is common ground that Ms Mitchell was kept outside the courtroom for the prosecution case to preserve her availability as a witness. The record then shows that whilst leading Mr Clutterbuck’s evidence, Ms Drummond in the presence of the jury cautioned him about hearsay because Ms Mitchell was not going to be a witness.
The starkest contrast in recall concerns pre‑trial events. Ms Mitchell and Mr Clutterbuck say Ms Mitchell was willing to give evidence and Ms Drummond failed to brief her. Ms Drummond disputes this. She says Ms Mitchell was always reluctant, and said she would need to get permission from her boss. Ms Mitchell also said to Ms Drummond she was unsure about the timings. When directly asked, Ms Mitchell would not confirm to Ms Drummond the timings contained in her statement to police. Ms Drummond says she tried to formally brief Ms Mitchell at the same time as she briefed Mr Clutterbuck (shortly before trial) but Ms Drummond encountered the same continuing reluctance from Ms Mitchell.
Ms Drummond says that prior to his giving evidence, Mr Clutterbuck agreed with her advice not to call Ms Mitchell because of her reluctance and her vagueness on timings. That recall of Ms Drummond is consistent with the comment she made during Mr Clutterbuck’s evidence to the effect that Ms Mitchell was not giving evidence. Mr Clutterbuck does not seem to dispute this. He says, however, that following his evidence, which had not gone well, he changed his mind and wanted Ms Mitchell called.
Ms Drummond agrees the issue came up again. Ms Drummond says she repeated her advice against it, but also said to Mr Clutterbuck it was too late because Ms Mitchell had sat in on some of Mr Clutterbuck’s evidence. We accept Ms Drummond believed this was the case, but it was incorrect. Ms Mitchell had not gone into the Court. Ms Drummond says Mr Clutterbuck accepted her repeated advice against Ms Mitchell testifying and the defence case was closed.
Where there is a conflict of evidence, except as mentioned above regarding Ms Mitchell being in the Court, we prefer Ms Drummond’s recollection which affords a sensible and credible narrative. We conclude there was no failure to follow instructions in that Mr Clutterbuck accepted the advice about Ms Mitchell prior to his giving evidence, and then was persuaded after giving evidence that it was too late to change. However, we also accept the advice at that stage was based in part on an error of fact, namely that Ms Mitchell had disqualified herself by sitting in on Mr Clutterbuck’s evidence.
The situation identified in R v Sungsuwan therefore comes into play. Despite the absence of a serious error on counsel’s part, has nevertheless a miscarriage occurred through the failure to call Ms Mitchell? We are satisfied the answer is no.
First, having had the opportunity to observe Ms Mitchell give evidence, we consider Ms Drummond’s consistent advice against calling her was sound. We note that when in evidence before us Ms Mitchell was asked about the prospect of being cross-examined, she exclaimed how timings were a difficulty for her. More generally, it does not appear to us Ms Mitchell would have been an impressive witness.
Further, we accept Ms Drummond’s evidence that Ms Mitchell was consistently reluctant to testify and refused to confirm her police statement. We note that despite her absence as a witness being proffered on appeal as a source of miscarriage, Ms Mitchell still has not confirmed her police brief nor set out otherwise what evidence she would actually have given. We accordingly conclude no miscarriage has arisen from the fact Ms Mitchell was not called at trial.
Issue two — the property sheet
Counsel did, following Mr Clutterbuck’s instructions, obtain property sheets but it seems not the ones Mr Clutterbuck was seeking. He wanted the one he is sure exists that sets out an inventory of the clothing he wore when first arrested. The important process point noted earlier arises here — the property sheet has still not been obtained for the purposes of the appeal and it seems no effort has been made to do so. This means the Court is not in a position to assess whether the absence of the correct document may have contributed to a miscarriage. We note, however, at issue is a witness’s description of clothing seen at night from a distance, and whether the clothing was dark as the witness said. Mr Clutterbuck says his clothing was white, grey and red. We do not consider it a trial matter of significance given the difficult circumstances in which the witness made her general identification of dark clothing, and the lack of any evidence the property sheet would help.
The related aspect was the CCTV footage of the holding cell. This matter was more emphasised by Mr Clutterbuck in his evidence than by his appellate counsel in submissions. The purpose of the footage would again be to show the clothes Mr Clutterbuck was wearing. Again it appears no inquiries have been made as to its availability. We decline to speculate as to whether it would assist.
Issue three — the padlock top
It is common ground that prior to trial Mr Clutterbuck presented Ms Drummond with a top of a padlock (a cut‑off U‑shaped shackle) which he said was the other half of the base he had on him at the time of the arrest. He asked Ms Drummond to take it and get it tested. That would have required applications to legal aid for funding, and to the Court to have the bottom half (now an exhibit) released for the testing. Ms Drummond declined to take from Mr Clutterbuck the proffered part. She said she wanted to take advice from more experienced counsel as to what to do, and in the interim Mr Clutterbuck should keep it and bring it to court. However, it seems Mr Clutterbuck misplaced or lost it prior to trial.
Ms Drummond says at a meeting on the Sunday prior to the Wednesday trial she asked Mr Clutterbuck about the top part of the padlock. He said to her he had lost it. Mr Clutterbuck denies that he was asked about it then.
On the issue of the padlock Mr Clutterbuck’s evidence kept changing. He appeared to suggest he chose not to bring it to trial because it had not been tested, then he said he could not find it, and then he said it had been in the side pouch of a car door but had gone missing. Mr Clutterbuck denied he had been told to keep it for court but then said that a couple of days before court he was looking for it, seemingly without having been prompted to do so by any request from his lawyer. It remains surprising, to say the least, that if the piece of padlock was as pivotal as Mr Clutterbuck claims, better care was not taken of it. Mr Clutterbuck knew the significance of it. This lack of care tells against attributing any significance to its absence.
That said, we consider Ms Drummond erred in not seeking testing and not ensuring better preservation. It seems a relatively low risk strategy to have sought to have the part proffered by Mr Clutterbuck tested. If it turned out to be a match, the defence would be strengthened. If not, it is by no means likely that evidence of the unsuccessful test would emerge during the trial, and even if it did, it would still not make the untested Crown piece any more probative. By contrast, taking the piece untested to Court and inviting the jury to compare it would seem to carry much greater risk if the confidence of Mr Clutterbuck that he had located the correct piece proved misplaced.
Although we consider counsel erred in her assessment, we do not consider it has occasioned a miscarriage. Without the piece being available it is impossible to say it was the other half or not. No application to have the two pieces that are held by the police tested subsequent to trial has been made, and we repeat the point the lack of care in relation to the item tells against its probative value.
Conclusion
We do not consider individually, or cumulatively, there has been shown to be a miscarriage of justice. There was no failure to follow instructions, and any debateable assessments, and that is the highest one would label them, fall far short of the necessary level of significance.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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