Clutterbuck v The Queen - [2013] NZCA 373

IN THE COURT OF APPEAL OF NEW ZEALAND

CA854/2012
[2013] NZCA 373

BETWEEN	RICHIE STUART CLUTTERBUCK Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2013
Court:	French, Goddard and Simon France JJ
Counsel:	T W Fournier (for part of appeal) and Appellant in person S B Edwards and M L Wong for Respondent
Judgment:	15 August 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed.
BThere is no order for a retrial.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Clutterbuck was convicted following a jury trial on one count of blackmail.[1] He appeals on numerous grounds but it is necessary for us to consider only one, which concerns the circumstances in which Mr Clutterbuck’s request to revisit his election and give evidence was denied.

Brief description of facts

[1]The indictment charged that: TERRY JONES, RITCHIE STUART CLUTTERBUCK, [and others] on 30 November 2011 at Christchurch threatened to endanger the safety of Barry James Pascoe and/or his family with intent to cause Barry James Pascoe to act in accordance with their will so as to obtain a benefit.

The complainant, a Mr Barry Pascoe, had been hiding money on his property. The money belonged to one of Mr Clutterbuck’s three co-defendants, Mr Jones. The circumstances of storage raised strong suspicions about the illicit nature of the money.
The money went missing. Mr Jones held Mr Pascoe accountable for its loss. Mr Jones was in prison at the time, and he was frustrated in his efforts to address the situation. The Crown case was that he tasked Mr Clutterbuck, also in prison but imminently to be released, with sorting it out.
Mr Clutterbuck met with Mr Pascoe. A consequence of the meeting was that Mr Pascoe agreed to register a caveat to the value of $100,000 over his property. The idea seemingly was that when the property was sold, the loss would be remedied. The sum of $100,000 was more than the amount that went missing.
Messrs Clutterbuck and Jones, and two others, were charged with blackmail. It was alleged that the actions of Mr Pascoe in providing security for the lost money were the product of an implicit threat made by Mr Clutterbuck at the meeting, the threat being against either Mr Pascoe or his family. Mr Clutterbuck denied that what he said was a threat.

Mr Clutterbuck’s election

Mr Clutterbuck’s original counsel died before the trial. Mr Green took the brief. It is fair to say it was a difficult one, an observation reflected in a minute issued by the trial Judge, Dobson J, prior to sentencing:[2]
[1] Mr Green, counsel for Mr Clutterbuck, had a somewhat tenuous hold on his instructions during the trial. He foreshadowed applications for leave to withdraw on a number of occasions, but ultimately presented the defence for Mr Clutterbuck throughout the trial, including making a closing address on Mr Clutterbuck’s behalf.
[2]R v Jones HC Christchurch CRI-2012-009-238, 23 November 2012.
At the end…

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 [2013] NZCA 373
Case: [2013] NZCA 373
Decision Date: 15 August 2013 at 10.00 am

CaseChat Overview and Summary

In the case of Clutterbuck v The Queen, the defendant, Clutterbuck, appealed against a decision to disallow him from presenting further evidence after electing not to call evidence during his criminal trial. The case was heard in the court of appeal, where the primary focus was on the interpretation and application of s 98 of the Evidence Act 2006. This section governs the admission of further evidence after the closure of a party's case, particularly in criminal proceedings. The legal issue before the court was whether the defendant's application to change his election and testify should be permitted under s 98(4) of the Evidence Act 2006, considering the interests of justice and the right to present a defence as guaranteed by s 25(e) of the New Zealand Bill of Rights Act 1990.

The court found that while the defendant's absolute right to testify had been lost by his initial election not to call evidence, the statutory discretion under s 98(4) should be exercised with consideration of the interests of justice. The court acknowledged that the defendant's decision to testify was influenced by the way his case was being presented during the s 347 application and the Crown's characterisation of its case. The defendant believed that he needed to give evidence to present his version of events and challenge the Crown's rejection of his story through cross-examination. The court concluded that the decision to disallow the defendant from testifying was appropriate, as the defendant's reasons for wanting to change his election were not compelling enough to warrant a departure from the statutory provisions.

The court of appeal upheld the decision to disallow the defendant from presenting further evidence. The court emphasised the importance of adhering to the statutory framework provided by s 98 of the Evidence Act 2006 while also considering the interests of justice and the defendant's right to present a defence under s 25(e) of the New Zealand Bill of Rights Act 1990. The appeal was dismissed, and the decision of the lower court was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Because the defendant had made his election not to call evidence, the situation was governed by s 98 of the Evidence Act 2006 which provides:98 Further evidence after closure of case (1)In any proceeding, a party may not offer further evidence after closing that party's case, except with the permission of the Judge. (2)In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both. (3)In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if— (a) the further evidence relates to a purely formal matter; or (b)the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or (c)the further evidence was not available or admissible before the prosecution's case was closed; or (d)for any other reason the interests of justice require the further evidence to be admitted. (4)In a criminal proceeding, the Judge may grant permission to a defendant under subsection (1) if the interests of justice require the further evidence to be admitted. (5) The Judge may grant permission under subsection (1),— (a)if there is a jury, at any time until the jury retires to consider its verdict: (b)in any other proceeding, at any time until judgment is delivered. It is plain from the internal context that the concept in subs (1) of “closing the case” is a reference to the conclusion of evidence rather than the making of final addresses. Subsection (3)(b), for example, refers to a Crown application to call more evidence based on the conduct of the defence. This indicates the section is referring to a matter arising after the Crown has concluded its evidence but before it has addressed. This is how the section was interpreted in R v Bain.[6][6]R v Bain [2009] NZCA 1. It follows that consequent upon an election not to call evidence being made on the Thursday afternoon, Mr Clutterbuck’s application to change his election and testify was governed by s 98(4) and its test of the “interests of justice”. We do consider, however, that the exercise of that statutory discretion is influenced by s 25(e) of the New Zealand Bill of Rights Act 1990 and its guarantee of the right for an accused to present a defence. Thus although the absolute right to testify had been lost, we are of the view that very good reasons should exist before the change in election is declined. Mr Clutterbuck advised us that he had changed his mind when hearing how his case was otherwise being presented on the s 347 application. This change of heart became reinforced when he heard the Crown characterisation of its case the next morning. Mr Clutterbuck considered he needed to give evidence to put his view. His version of events had been articulated by him in a pre‑trial statement, but Mr Clutterbuck says that during the s 347 applications he reached the revised view that the Crown should be made to test its rejection of his story by cross‑examination. We do not consider it necessary to assess how much of this thinking was present at the time and how much has emerged subsequently.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.