Clutterbuck v The Queen
[2013] NZCA 373
•15 August 2013 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA854/2012 [2013] NZCA 373 |
| BETWEEN | RICHIE STUART CLUTTERBUCK |
| AND | THE QUEEN |
| Hearing: | 29 July 2013 |
Court: | French, Goddard and Simon France JJ |
Counsel: | T W Fournier (for part of appeal) and Appellant in person |
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.
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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 of the Crown case applications under s 347 of the Crimes Act 1961 were intimated. The Judge agreed to hear full argument on the applications. However, to assist with timing issues, he first sought indications as to whether any of the defendants were going to call evidence.
None were. We observe at this stage that Mr Green was following written instructions to this effect. Mr Clutterbuck does not dispute that, but says he had been pressured into a decision not to give evidence by counsel for all the defendants. Mr Green testified before us that if that occurred, he was not present.
It then appears, for reasons which are not entirely clear to us, that the indications of whether evidence would be called became formal elections made in front of the jury. This occurred prior to the s 347 applications being heard. The jury were then sent home late afternoon, and the Judge proceeded to hear the s 347 applications.
Although on most occasions the order in which s 347 applications are heard and defence elections are made will be of no moment, we observe that this sequence is contrary to our collective experience. Normally the s 347 applications would come first, and then informed decisions as to whether to testify would be made in light of the outcome of the applications. However, all defendants faced only a single charge, so in this case the results of the s 347 applications were unlikely to affect the elections – either a defendant would be discharged, or his or her jeopardy would remain unchanged. But, as will be seen, the sequence did unexpectedly have an effect.
As noted, the Judge commenced hearing the s 347 applications late afternoon. Defence counsel went first. The exact timing of this is not clear, but either during or at the end of Mr Green’s submissions on his behalf, Mr Clutterbuck indicated he wished to change his election and give evidence.
The Judge deferred a decision on Mr Clutterbuck’s application until hearing from the Crown on the s 347 applications the following morning. Following those submissions, Dobson J declined the s 347 applications[3] and turned to consider Mr Clutterbuck’s application.[4]
Decision declining application to change election
[3]R v Jones [2012] NZHC 2601.
[4]R v Jones HC Christchurch CRI-2012-009-238, 8 October 2012.
Dobson J was initially inclined to allow Mr Clutterbuck to change his election. However, having heard from Mr Clutterbuck, the prosecution and other defence counsel, he changed his mind. In terms of why he heard directly from Mr Clutterbuck, it is necessary to observe that Mr Green had advised the Court that he would need to withdraw rather than lead Mr Clutterbuck’s evidence. The Judge indicated that would be allowed, but that Mr Green would remain as amicus to provide assistance to the extent he was able.
The Judge’s reasons for declining Mr Clutterbuck’s request are best captured by his own words:[5]
[5] Mr Clutterbuck gave various indications of the matters he wished to traverse in evidence. A number of them raised issues as to admissibility, and the potential for objections on behalf of the Crown as to relevance, and that and other grounds for the co‑accused. Mr Clutterbuck was insistent that all co‑accused were “his friends” and that he could only say things which would help them.
[6] After numerous exchanges, it became apparent that that was not the case. Ms Bell invited me to revisit the decision I had made to grant Mr Clutterbuck leave to vacate the election conveyed to the Court. Her application was supported by Messrs Sandston and Rapley on behalf of, respectively, Ms Horgan and Mr Jones. Mr Norcross indicated that his instructions from Mr Turner were to say nothing on the point.
[7] Whilst my initial decision was made focusing on Mr Clutterbuck’s concerns at perceived inadequacies in the presentation of his defence, the prospect of the Court not being able to control the content of what he would say in evidence when Mr Green was not in a position to lead him in a detailed way was such that the risk of inappropriate evidence leading to a mistrial created a different balance of interests. Ultimately, I accepted the invitation that I reconsider the decision I had made. I reversed that decision, and indicated to Mr Clutterbuck that the exchanges with him about the range of evidence which he considered to be relevant so intruded on the interests of a fair trial for other participants that it overrode the considerations I had relied on originally in indicating I would allow him to make the election again.
Decision
[5]R v Jones, above n 4.
We consider the Judge erred in his conclusion, and Mr Clutterbuck should have been allowed to give evidence.
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.
The circumstances here were that the Crown case had finished only one hour earlier and, apart from the fact of election, nothing had happened subsequently. Arguments under s 347 had begun in the absence of the jury, but there was no impediment to allowing Mr Clutterbuck to commence evidence the following day.
Turning to the reasons identified, we have considerable sympathy with the Judge’s concern about a mistrial. He obviously thought that Mr Clutterbuck would be difficult to control, especially without counsel leading him. The Judge was well placed to make that assessment and we do not doubt it. But that situation would have existed if Mr Clutterbuck had, an hour earlier, exercised his absolute right to testify, or alternatively if the elections had occurred in the normal way after the s 347 applications.
As for prejudice to co-defendants, we consider it is important to identify what the prejudice is, and whether it could have been remedied by other means, such as allowing them to revise their elections. We do not accept, issues of inadmissibility aside, that the likely content of Mr Clutterbuck’s evidence was a basis for declining leave. That Mr Clutterbuck’s evidence might be inconvenient, or might disturb a united front, cannot be relevant to whether he is permitted to testify.
We recognise a concern was that Mr Clutterbuck might raise matters that had not been put to prosecution witnesses. However, that is something that the Judge has a discretion to address. Section 92(2) of the Evidence Act allows the Judge to exclude the contradictory evidence, allow rebuttal, give a direction concerning weight or make any order considered just. That would include recalling witnesses if needed.
Finally, we do not accept the relevance of the Crown’s submission that giving evidence would not have aided Mr Clutterbuck. That is speculative, and even if true, cannot undermine the importance of a defendant being allowed to present his or her defence.
We wish to stress any analysis under s 98 of the Evidence Act as to where the interests of justice lie is case specific. Here we are particularly influenced by the timing of Mr Clutterbuck’s change of mind. It was sufficiently speedy to mean that nothing had changed from the situation which would have existed had Mr Clutterbuck elected to give evidence in the first place. The concerns which motivated opposition from counsel, and the change of heart from the Judge, would have arisen an hour earlier with no capacity to do anything to prevent Mr Clutterbuck testifying. We are also influenced by the fact that in the normal course of events Mr Clutterbuck’s change of heart would have occurred before he was required to elect, and again he would have had an absolute right to testify with all the attendant difficulties that might create. Finally we note, again as a result of the speed with which a change in position was notified, the absence of any prejudice to co‑defendants or the Crown. No prejudice arose as a result of the application to change his election that would not have existed had Mr Clutterbuck an hour earlier elected to testify.
Conclusion
For these reasons we are of the view that a miscarriage of justice was occasioned by the rejection of Mr Clutterbuck’s application to change his election. The appeal is allowed and his conviction quashed.
At the conclusion of the hearing we asked the Crown to file a memorandum concerning whether it sought a retrial. This was because we were advised Mr Clutterbuck had served two years of a two year nine month sentence, and his co‑offenders had served their sentences and been released. The Crown has subsequently indicated that should the appeal be allowed a retrial is not sought.
Solicitors:
Crown Law Office, Wellington for Respondent
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