Deo v R
[2012] NZCA 484
•23 October 2012
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA4/2012 [2012] NZCA 484 |
| BETWEEN KAARTIK DEO |
| AND THE QUEEN |
| Hearing: 11 September 2012 |
| Court: Arnold, Priestley and Ronald Young JJ |
| Counsel: A G Speed and S T Clark for Appellant |
| Judgment: 23 October 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Introduction
Following a jury trial before Judge Bouchier, the appellant, Mr Deo, and two co-offenders, Joshua and Daniel Tai, were convicted of one count of aggravated burglary. In addition, Mr Deo and his brother, Kushant Deo, were convicted of conspiring to pervert the course of justice. Judge Bouchier sentenced Mr Deo to a term of imprisonment of four years.[1] Mr Deo now appeals against conviction and sentence.
Background
[1] R v Tai DC Auckland CRI-2010-090-8436, 19 December 2011.
While her parents were away, a teenage girl, Audrey, had a small party at her house to which she invited a small group of friends. Her older brother, Cedric, was present. Mr Deo and the Tai brothers turned up at the party, although they did not know Audrey and were not invited. They arrived in Mr Deo’s white van with several others, including Monica Tai (the Tai brothers’ sister) and another female friend who had a baby with her and had been invited to the party by a friend of Audrey’s. Audrey asked the group to leave. They did so but, as they were leaving, Daniel Tai said something like “We’ll be seeing you later then”.
The Crown alleged that around 1.40 am, when about eight people remained at the party, Mr Deo, the Tai brothers, Monica Tai and one or two unknown associates returned to the address in Mr Deo’s white van. Mr Deo was the driver and waited in the van at the end of the driveway while the Tai brothers and an unknown associate approached the house. They were wearing hoodies and had bandannas over the lower part of their faces. They broke several large ranch slider doors to get into the house, where they were confronted by Cedric. One of the intruders had a large knife and threatened to stab him, while another attacked him with a large metal bar or pipe, which was aimed at his head. He managed to deflect the bar with his arm, which left a large gash requiring several stitches. The intruders ultimately took a number of items from the house including a guitar, laptop computers, iPods, iPod speakers and a camera.
When they saw the men smashing the ranch slider doors, two of the party-goers, Mr Khanthee and Mr Williams-Spiers, ran out the front door of the house and down the driveway. Both said in evidence that they saw a white van parked in the entrance to the driveway, which they thought was the same white van that the group had arrived in earlier. Mr Khanthee hid in a bush; Mr Williams-Spiers tried to walk past the van to get help. A male got out of the driver’s seat and blocked his way. Mr Williams-Spiers described the man as being in his late 20s or early 30s, of Fijian, Indian or Pacific Island descent, quite muscular and taller than him (he was five feet, 11 inches or around 180 cms tall). The Crown said that this man was Mr Deo. A woman then exited the van and, with the male, pushed Mr Williams-Spiers, held him against the van and searched his pockets, taking two lighters. Mr Williams-Spiers said that he recognised the woman as the person without the baby who was part of the group that visited the house earlier (that is, Monica Tai). Shortly after, the intruders left in the van.
The following day, Kushant Deo sent text messages to Mr Deo telling him that the police had searched the Tais’ house and asking whether the party was a big one. Mr Deo sent a reply saying “No” and then “Don’t say anything to them, act like you don’t know what happened”.[2] A day or two later, Kushant sent a further text message to Mr Deo, telling him that the police had taken the Tais in for questioning and asking him to delete all text messages that Kushant had sent him so they could not be traced. He also said “the cops already know we know them they got proof and they got your van registration”. Kushant later sent a message saying “And you gotta tell them that you went out the same night. Because they already know. I got an idea you tell them that you guys went in the van just for a cruise that’s all and you dropped them after maybe? What you think bro? Don’t tell them you went to party or anything. But you can’t deny to them that you were with Mon, Josh, and Dan ok they already know”. Mr Deo responded “K yes I’ll just say we went for a cruise thanks a lot … so is the house all messed up?”. As part of his response Kushant told Mr Deo to check his van and remove any evidence.
[2]This and the other text messages quoted in this paragraph were written in abbreviated text. The quotes given change the abbreviations to full words for ease of understanding.
Only one of the accused gave evidence at trial, Joshua Tai. He said that he, his brother and Monica had gone to the wedding of Mr Deo’s sister in the afternoon prior to Audrey’s party. After the wedding they were at the house of Mr Deo’s parents when Monica received a text about the party. A group of them, including Joshua, Daniel, Monica and Mr Deo, decided that they would go to it. It was around 10 pm. They went in Mr Deo’s white van. They stayed for less than half an hour because they were asked to leave. They then decided to go to the place of a friend of Daniel’s who lived on West Coast Road. They drove there but did not get out of the van and went back to town, where Joshua and Monica were dropped off by Mr Deo. They then went to several clubs before going home. Joshua denied having anything to do with the burglary.
In his video interviews, Mr Deo gave a similar account, except that he said that he left the others and went home around 12.30 or 1 am to go to bed. He denied any part in the subsequent events.
Basis for appeal
For Mr Deo, Mr Speed focussed on two grounds in relation to the conviction appeal. The first was that there were significant problems with identification and the second was that the verdicts were unreasonable having regard to the evidence.
In relation to identification, Mr Speed submitted that Mr Williams-Spiers’ evidence was unreliable and any probative value it had was outweighed by its prejudicial effect. The evidence was, he submitted, inadmissible as a consequence of the provisions of s 45 of the Evidence Act 2006: a formal identification procedure should have been followed and the Crown had not established beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification. Moreover, the problem was compounded because the Judge erroneously referred to the driver as “Indian” in her summing up and failed to give a full s 126 warning.
In relation to the unreasonable verdict ground, Mr Speed submitted that the evidence against Mr Deo was too circumstantial and equivocal to support the verdict on the aggravated burglary charge. He particularly noted difficulties with the identification of the white van. In relation to the attempting to pervert the course of justice count, Mr Speed argued that on an objective reading of the text messages they disclosed no criminal intent. The Crown had essentially invited the jury to speculate concerning Mr Deo’s intention.
In relation to the sentence appeal, Mr Speed argued that the Judge had adopted too high a starting point given Mr Deo’s lesser role in the offending, did not take sufficient account of Mr Deo’s personal circumstances and erred in failing to give Mr Deo credit for time spent on restrictive bail conditions.
Discussion: conviction appeal
We will address each of the grounds of appeal in turn.
Identification
Mr Speed pointed to inconsistencies between Mr Williams-Spiers’ written statement and his oral evidence about the driver of the van. In his statement, Mr Williams-Spiers had described the driver as a “Fijian/Islander”, whereas in his examination-in-chief he said he was a “Fijian Indian”. He was cross-examined about his statement to the police as follows:
Q. Okay you didn’t describe him as Fijian Indian or an Indian did you?
A. No.
Q. No. Is that because you weren’t sure what his ethnicity was?
A. Well, yes. Because I mean it was dark and raining.
Mr Speed submitted that there were clear discrepancies between Mr Williams-Spiers’ description of the driver of the van and Mr Deo’s appearance. Mr Speed summarised these as follows:
| Mr Williams-Spiers’ description | Mr Deo in fact | |
| Age | Late 20s or early 30s | 23 |
| Facial hair | “Very, very short” | Clean shaven |
| Height | Taller than him (ie, over 180 cms) | Shorter than 180 cms |
| Build | Muscular | Slim |
| Ethnicity | Possibly a Fijian or an Islander, although not sure | Fijian Indian |
| Hair | Very dark, very short, about 5–6 cms long | Dark, shorter than 5–6 cms |
Mr Speed said that, given these discrepancies and given also the fact that it was dark and raining when Mr Williams-Spiers made his observations, his evidence was inadmissible under s 45.
Section 45 applies to “visual identification evidence of a person alleged to have committed an offence”. “Visual identification evidence” is defined in s 4 to mean:
... evidence that is—
(a)an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b)an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)
In Harney v Police the Supreme Court said:[3]
Identification evidence is a species of opinion evidence. The witness is offering an opinion that the alleged offender was the person the witness saw in circumstances related to the offending. Such evidence has, however, inherent and well-known dangers which the requirements of s 45 are designed to mitigate so far as possible. As defence counsel often say to juries, there have been famous miscarriages of justice arising from mis-identification by an honest, and therefore apparently believable, eyewitness.
[3] Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [15]. (Footnotes omitted.)
The difficulty facing Mr Speed on this aspect of the case is that Mr Williams-Spiers did not purport to identify Mr Deo at any stage. Rather, he described the driver of the van as best he could. The Crown submitted that the description that Mr Williams-Spiers gave was consistent with the driver being Mr Deo. Accordingly, as Mr Speed acknowledged, Mr Williams-Spiers’ evidence was description or resemblance evidence and was circumstantial evidence of identification rather than direct visual identification evidence. This Court held in R v Turaki that such description or resemblance evidence did not fall within the definition of “visual identification evidence” in s 4 and that s 126 had no direct application to it, although in some cases it might be appropriate for the judge to direct the jury on matters typically covered in s 126 warnings.[4]
[4]R v Turaki [2009] NZCA 310 at [58] and [94]. See also R v Adams [2008] NZCA 171 at [19]–[20].
Mr Speed referred to this Court’s decision in Peato v R.[5] In Turaki, the Court had, in addition to distinguishing between visual identification evidence and resemblance evidence, drawn a distinction between visual identification evidence and observation evidence, describing observation evidence as arising where there is no dispute about a person’s presence at the scene of the offence and the evidence goes to whether he or she was involved in the offending.[6] As in the case of resemblance evidence, the Court said that s 126 had no application to observation evidence, although it may be appropriate for a judge to direct the jury in relation to matters that would normally be covered in a s 126 warning.[7] The Court in Peato did not agree with the reasoning in Turaki in relation to observation evidence.[8] However, nothing in Peato suggests that the Court did not accept the distinction between visual identification and resemblance evidence, or what the Court said in Turaki about that.
[5] Peato v R [2009] NZCA 333, [2010] 1 NZLR 788.
[6] At [92].
[7] At [93].
[8] At [18]–[31].
Section 126 applies where “the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person”. In the present case, the similarities between the description given by Mr Williams-Spiers and Mr Deo’s appearance were part of the Crown’s circumstantial case against Mr Deo, to be assessed alongside a range of other circumstantial evidence. In these circumstances, the Crown case did not depend “wholly or substantially” on the correctness of a visual identification by Mr Williams-Spiers.
In her summing up, Judge Bouchier gave a s 126 warning in relation to identification evidence given in respect of Daniel Tai by Audrey, who had identified him from a photo montage. She noted that Mr Williams-Spiers had been unable to identify any of the suspects from photo montages. Later, when summarising the Crown case in terms of 14 specific points emphasised by the prosecutor, the Judge said:
[51] The ninth point: the descriptions that were given by the other people there. [Mr] Williams-Spiers and [Mr] Khanthee. Clear, the Crown says to you, it was the same van, the same group of people in the van and this person, Mr Williams-Spiers, says he recognises Monica Tai as being at the party, and the driver of the van was an Indian.
[52] The 10th point: the Crown says: [Mr] Williams-Spiers says that driver was an Indian male.
Then, when summarising the defence case for Mr Deo, she said:
[64] ... What the defence says is that in respect of count 1, Mr ... Williams-Spiers is the only person who purports to identify [Mr] Deo, but the defence says, you know what he looked [like] at the time, because there was a photograph submitted in evidence of him taken at his sister’s wedding that day, and compare the way he looks in that photograph to the description that [Mr] Williams-Spiers makes. In particular, it is highlighted, the inconsistencies with his appearance in what is said as to the male in the driver’s seat. Late 20’s, early 30’s – well, he was 23 at the time in June 2010, the defence says, because there’s evidence of that. He gave his date of birth to the police. Jeans, black jacket, dark skin, very, very short facial hair. The defence point out that no facial hair can be seen in the photos. In respect of the description by [Mr] Williams-Spiers, “Taller than me” – well, in the submission of the defence, it appears that Mr Williams-Spiers was in fact taller than [Mr] Deo. The description that he then gave of being muscular; the defence say, well, that is hardly so.
[65] So, also consider when that purported identification is to be looked at, that it was dark on that night. It was raining. So, therefore, in the submission of the defence, when that aggravated burglary occurred, it cannot be [Mr] Deo at that site.
The Judge later referred to the defence submission that Mr Williams-Spiers’ evidence was unreliable as he had not been able to identify Monica Tai from a photo montage.
As we have said, Mr Williams-Spiers did not purport to identify Mr Deo as the person he saw from the driver’s seat of the van.[9] Rather, he gave a description of the driver and the Crown invited the jury to conclude that it was Mr Deo on the basis of that and other circumstantial evidence. The jury was told that Mr Williams-Spiers had been unable to identify Mr Deo from a photo montage, and defence counsel made much in his cross-examination and closing address of the discrepancies between Mr Williams-Spiers’ description and the appearance of Mr Deo and of the limited opportunity for observation that Mr Williams-Spiers had, given the circumstances. This, combined with the s 126 warning that the Judge gave in relation to Audrey’s identification of Daniel Tai, can have left the jury in no doubt about the care that they had to take in considering Mr Williams-Spiers’ evidence along with the other circumstantial evidence relied on by the Crown.
[9]In using the words “identify” and “identification” in [64] and [65] of her summing up the Judge seems to have adopted the language used in closing by Mr Speed. It is not an accurate portrayal of the way the Crown used Mr Williams-Spiers’ evidence, however.
Mr Speed argued that the Judge’s reference to the driver of the van being an “Indian” was wrong, and may have misled the jury. But in the relevant passage the Judge was simply summarising the Crown case.[10] In his closing, prosecuting counsel had referred to the driver as being “possibly Indian” and later referred to Mr Williams-Spiers’ evidence-in-chief, where he had described the driver as “Fijian Indian”, and to his cross-examination, where Mr Williams-Spiers accepted that he was not sure about the driver’s ethnicity.[11] The prosecutor put the matter to the jury very fairly. We do not consider that there was any likelihood that the jury might have been misled as to the position as a result of the Judge’s reference.
[10] See the extracts at [21] above.
[11] See [13] above.
Mr Speed also submitted that the Judge should have given a s 126 warning in relation to Mr Williams-Spiers’ statement that he thought the woman in the van was Monica Tai. However, as we have said, immediately after giving the s 126 warning in relation to Audrey’s identification of Daniel Tai, the Judge noted that Mr Williams-Spiers had not been able to identify any of the accused from photo montages. She also later referred to the defence submission that Mr Williams-Spiers’ evidence was unreliable as he was not able to identify Monica Tai from the photo montages either. Again, we do not see how the jury could have been in any doubt about the need to take care in considering Mr Williams-Spiers’ evidence in relation to Monica Tai.
Finally, we note that at the conclusion of her summing up, the Judge asked counsel whether they had anything to raise. Mr Speed said that he had nothing to raise. Presumably what concerns him now did not concern him then.
We see no possibility of a miscarriage of justice and accordingly reject this ground of appeal.
Unreasonable verdict
Mr Speed submitted that the evidence against Mr Deo was circumstantial and equivocal, consisting simply of a description of the driver of the van, which did not resemble Mr Deo, a description of the white van, which was generic and did not resemble Mr Deo’s van, the identification of Monica Tai as one of the people at the address earlier, which was equivocal, and the text messages between Mr Deo and his brother, Kushant, which did not establish that Mr Deo was present at the time of the offending. Accordingly, the jury’s verdict was unreasonable.
In R v Owen the Supreme Court said that a verdict will be unreasonable “if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty”.[12]
[12] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5]. See also [15].
As we have said, the case against Mr Deo was largely circumstantial. Accordingly, the Crown case must be assessed as a whole rather than simply in terms of particular elements. That said, we will address the matters that Mr Speed has raised. Before doing so, however, we note that Mr Deo’s pre-trial s 347 application for discharge was dismissed.[13]
[13] Deo v R DC Auckland CRI-2010-090-7529, 4 May 2011.
As previously noted, Mr Williams-Spiers did not purport to identify Mr Deo as the driver. However, the description he gave was broadly consistent with Mr Deo’s appearance. When the circumstances in which Mr Williams-Spiers saw the driver of the van are taken into account (dark, raining, briefly and in stressful circumstances), it is not surprising that his description was not entirely accurate.
In relation to the white van, it was not disputed that Mr Deo owned a white van and that he was out in it that evening. Rather, Mr Speed’s argument was that the description of the white van given by Mr Khanthee and Mr Williams-Spiers was very general and that one detail given by Mr Khanthee was inconsistent with the van being Mr Deo’s. That detail was that Mr Khanthee said the van had a sliding door on the right-hand side, whereas the evidence was that the sliding door on Mr Deo’s van was on the left-hand side. This submission is based on the following exchange between Mr Speed and Mr Khanthee:
Q.Okay. Now – and so it [the van] was parked in such a position, you’re telling the jury today, that you couldn’t run past it, is that right?
A.At the time I was just in such a – I was in such a state that I, you know, I was just thinking about, um, getting to somewhere safe and I wasn’t, um.
Q.Sure. So the closest you got was 10 metres and then you branched off to the right, is that what you’re telling the jury today?
A.And into some shrubbery, yeah.
Q.So how could you see whether it had sliding doors or not?
A.Because as I – assuming – I think it most likely it would’ve been parked with its back to me so I would’ve gone to the right and seen the sliding doors on the side of it.
Q.Okay, in the dark, though the shrubbery which was scratching you?
A.No I jumped into the – the shrubbery was on the side of a road.
It is not entirely clear that Mr Khanthee was saying that the sliding door was on the right-hand side of the van. But assuming that is what he thought and that he was wrong about it, the mistake is understandable given the circumstances on the night in question and the fact that the trial took place a year later. Mr Khanthee was clear in his evidence that he thought the van was the same van that he had seen earlier in the evening.
In relation to Monica Tai, Mr Williams-Spiers’ evidence was that he thought the woman in the van was the same woman who had visited the party earlier in the evening, in company with the woman with the baby. However, he was unable to identify her from a photo montage. The jury was well aware of this, the Judge having referred to it in her summing up. Again, this was a piece of circumstantial evidence, to be weighed with the other evidence.
Finally, there is the evidence of the text messages. Mr Speed submitted that these showed nothing more than that Kushant had advised Mr Deo to tell the police the truth or remain silent. However, when the relevant text messages are viewed in their entirety, they indicate that the brothers discussed the police inquiry and how they should respond to it and agreed on a story to tell the police (that they had been driving around before dropping the others off and going home). The content of the text messages supports the Crown case that Mr Deo was involved in the aggravated burglary and that he and his brother anticipated the possibility of a prosecution and sought to head that possibility off by agreeing on a story.
Looking at the evidence as a whole, and the evidence of the text messages in particular, we are satisfied that the jury could reasonably be satisfied beyond a reasonable doubt that Mr Deo committed the offences of which he was found guilty. Accordingly, we reject this ground of appeal.
Discussion: sentence appeal
In relation to each of the Tai brothers, Judge Bouchier adopted a starting point of seven years’ imprisonment. As to Mr Deo, the Judge adopted a lower starting point of four years, six months’ imprisonment, on the basis that he played a lesser role in the offending. She then gave him a discount of six months for his previous good character, leaving an end sentence of four years’ imprisonment. No additional penalty was imposed for the conviction on the attempting to pervert the course of justice count.
Mr Speed argued that the starting point for Mr Deo was too high, on the basis that in other similar cases lower starting points had been adopted. Mr Speed referred to R v Patrick,[14] R v Shirley,[15] R v Horrie[16] and Pani v R,[17] arguing that the starting point in the present case was not consistent with those adopted in these cases.
[14] R v Patrick [2008] NZCA 115.
[15] R v Shirley [2009] NZCA 509.
[16] R v Horrie [2010] NZCA 51.
[17] Pani v R [2011] NZCA 45.
As Mr Downs submitted, although it deals with aggravated robbery, this Court’s guideline judgment in R v Mako is relevant.[18] It identifies a starting point of ten years where a private house is entered forcibly by a group of people seeking goods or other items and weapons are brandished, even though no injuries are caused.[19] Although this was said when the home invasion legislation was in effect, the Court has held that this approach remains appropriate despite the repeal of that legislation.[20] Accordingly, the Judge adopted a lower starting point for the Tai brothers than she might have. In addition, the Crown acknowledged at sentencing that Mr Deo had played a lesser role in the aggravated burglary and the Judge accepted that assessment. Again, that might be regarded as generous because where there is a joint enterprise with assigned roles and all the participants have the requisite mental element, significant differences in starting points will only be justified if there are real differences in culpability.[21] In the result, then, we do not accept that the starting point was too high.
[18] R v Mako [2000] 2 NZLR 170 (CA) at [58].
[19] At [58].
[20]R v Fenton [2008] NZCA 379 at [9]–[12]; Manuel v R [2010] NZCA 285 at [23]–[29].
[21] R v Mako, above n 18, at [64].
As to mitigating factors, the Judge noted all that could be said in Mr Deo’s favour. She gave a discount of six months to reflect his personal characteristics: no previous convictions, stable work record, limited use of alcohol, no use of drugs, low risk of re-offending. We see no error in her approach, particularly when it is recalled that no additional penalty was imposed in relation to the attempting to pervert the course of justice conviction, even though it might have been.
Accordingly, we reject the sentence appeal.
Decision
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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