Dooley v The Queen
[2013] NZCA 534
•1 November 2013 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA107/2013 [2013] NZCA 534 |
| BETWEEN | DAVID ALAN DOOLEY |
| AND | THE QUEEN |
| Hearing: | 22 October 2013 |
Court: | Miller, Venning and Andrews JJ |
Counsel: | L L Heah for Appellant |
Judgment: | 1 November 2013 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe application for leave to adduce fresh evidence is declined.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
Introduction
Mr Dooley has applied for leave to appeal against his conviction on charges of injuring with intent to injure, and burglary. Those convictions followed his having been found guilty on those charges after a trial before Judge Garland and a jury in the District Court at Christchurch on 6 March 2012. Mr Dooley was also found guilty on one charge of assault and one charge of assault with intent to injure. Mr Dooley has not sought to appeal against those two convictions.
The grounds on which Mr Dooley seeks to appeal against the convictions for injuring with intent, and burglary, are:
(a)the verdicts are unreasonable and not supported by evidence; and
(b)there was a miscarriage of justice because of his trial counsel’s error in failing to call certain evidence.
Leave is required for Mr Dooley’s appeal because it was filed some eight months out of time. He has applied for an extension of time to appeal. The delay in filing the appeal has been explained, and an extension of time is not opposed by the Crown.
Background
All four charges arose out of three incidents that occurred in Christchurch on 24 September 2010, involving Mr Dooley and two associates, Mr Holmes and Mr Peck. The incidents occurred while Mr Dooley, Mr Holmes, and Mr Peck, together with a group of associates, were walking along Riccarton Road towards the centre of Christchurch, at about 10 pm that night.
The first two charges (assault and assault with intent to injure) related to an attack on two Taiwanese teenagers. The police case was that Mr Dooley saw the victims on the other side of the road and ran towards them yelling “Asians”, then swung his arm at the first victim’s neck, forcing him to the ground. As the first victim got to his feet, Mr Holmes punched him on the side of his head, causing him to fall down again. The Crown case was that Mr Dooley and Mr Holmes then turned to the second victim, and that Mr Dooley punched and kicked him before Mr Holmes joined in kicking him.
The third charge (injuring with intent to injure) arose out of a second incident shortly after the first. The Crown case was that an older Chinese man was riding his bike home from work, and was chased by Mr Peck and Mr Holmes, at the intersection of Riccarton Rd and Middleton Rd. Mr Peck, Mr Holmes, and Mr Dooley then forced the victim off his bike, and punched and kicked him, causing extensive bruising and swelling, a cut above his left eye, and a fractured jaw. Mr Dooley was charged on this count as a principal, or party.
The fourth charge (burglary) arose out of a third incident the same night. The Crown case was that two Japanese students were verbally abused then followed onto their property by Mr Dooley, Mr Peck, and Mr Holmes. The male victim was punched.
District Court trial
The principal issue at trial was identity; that is, whether the Crown had proved that Mr Dooley was one of the three people involved in each of the three incidents. Evidence was called from the victims, members of the public, Mr Holmes, and associates of the offenders who had been with them on the night. The Crown also called evidence from two former flatmates of Mr Dooley, who said he had admitted (or bragged about) being involved in the attacks on “the Asians”.
Mr Dooley accepted that he was present in the group, but his case was that he did not participate in the attacks on either of the third or fourth victims. Then counsel for Mr Dooley, Mr Davis, put to the jury that Mr Dooley’s height, build, and appearance on the night (long red hair and a ginger beard) were sufficiently distinctive, and different from that of Mr Holmes and Mr Peck (both of whom were taller and were described as skinheads) that he would have been easily identified. Mr Davis also put to the jury that the evidence of Mr Dooley’s co-offender and associates that he was involved in the attacks was neither credible nor reliable because they were drunk and/or affected by drugs, or were motivated by a wish to shift blame to him.
Counsel for the Crown and Mr Dooley provided the jury with typed summaries of the circumstances and evidence relied on by each of them in relation to the identification evidence. The summaries included references to the notes of evidence. The Judge provided the jury with a question trail for each charge, in which one of the questions (for each charge) was directed at whether Mr Dooley had been identified as the offender, or one of the offenders.
In his summing up, the Judge said that it would have been “abundantly obvious to you that the main issue for you to decide in relation to count one, two, three and four is whether or not … Mr Dooley was the offender or one of the offenders”. The Judge directed the jury as to assessment of witnesses’ evidence. the special need for caution before finding Mr Dooley guilty on the basis of visual identification evidence, and the possibility of an honest witness being mistaken about identification. The Judge suggested a number of factors the jury should keep in mind when considering identification evidence, and referred them to the matters set out by counsel for the Crown and Mr Dooley in their summaries.
The Judge also directed the jury as to the need for special care in relation to the evidence given by Mr Holmes and his and Mr Dooley’s associates, in particular as to whether they had had a purpose to serve in giving evidence – referring to Mr Davis’ suggestion to the jury that Mr Holmes and another witness had attempted to pass blame on to Mr Dooley.
The Judge then addressed the jury in detail as to the evidence relating to each charge, and the arguments made by counsel for the Crown and Mr Davis in relation to each charge. In so doing, the Judge made detailed reference to each of the typed summaries given by counsel to the jury.
After their deliberations, the jury found Mr Dooley guilty on all four charges. On the charge of injuring with intent to injure, the jury found Mr Dooley guilty as a secondary party.
Were the verdicts unreasonable?
Introduction
Under s 385(1)(a) of the Crimes Act 1961, this Court must allow an appeal against conviction if it is of the opinion “that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”.
In its judgment in R v Owen, the Supreme Court said of s 385(1)(a):[1]
Section 385(1)(a) contains two distinct, albeit overlapping, concepts. The first concerns a verdict which is unreasonable. 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. The second concept concerns a verdict which cannot be supported having regard to the evidence. That will be so when there is no evidence capable of supporting it. This can arise particularly when a specific factual ingredient of the offence lacks evidentiary support. It is unlikely that a case will have reached the point of a verdict of guilty if that is so, but this ground is contained in para (a) both for historical reasons … and because it must have been thought necessary to cater for that kind of case. Although they are distinct, the two limbs of s 385(1)(a) overlap because a verdict of guilty based on no evidence must necessarily be an unreasonable verdict. On the other hand, a verdict of guilty based on some evidence is not necessarily a reasonable verdict.
(Footnote omitted.)
[1]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37, at [5].
The Court went on to say:[2]
It is now appropriate to recognise that the “cannot be supported” limb of s 385(1)(a) has no practical significance. An “unsupported” verdict must necessarily be an unreasonable verdict. An unreasonable verdict has insufficient evidence to support it. A verdict with no evidence to support it is simply at the outer end of a continuum. Henceforth it will suffice simply to apply the unreasonableness limb.
[2]At [12].
It is necessary to set out the evidence relating to the third and fourth charges.
Evidence relating to the third charge
The jury heard evidence from eight witnesses. The victim said in a statement read to the jury that:
23.The man who punched me was coloured like you, not like me. His skin was white like yours. He was about 170-180cm tall. He had very short hair, it was not completely bald, he had some hair. He was of medium build and really strong. He did not have facial hair as he was clean shaven. He was wearing a jersey as I could not see his arms. It kind of looked yellowish in colour. I know he was wearing trousers but I do not know what they looked like.
24.I can not recall what the second person looked like. Nor the third person.
The jury also heard from three members of the public. The first of these lived close to where the victim was attacked. In a statement read to the jury she said she was woken by a scream and when she looked out her bedroom window she saw the victim lying on the ground, about 5 metres from the window. She said that she saw three males standing around the head of the person lying on the ground and then saw the three males kicking the person on the ground in the head. As to the attackers’ appearances, she described “three pakehas with shaved heads kicking the Asian male in the head”. She said she was focused more on the person being beaten on the ground, so did not notice the clothing that the group were wearing.
The next members of the public were the driver and passenger in a car on Riccarton Road. The passenger said she saw the attack on the victim. She described the attackers as “obviously a group of skinheads” and said that two of them were bald, and that there was a “ginga fella who was the watcher”, who was standing in the middle of a traffic island in the intersection. She described this man as being “kind of scraggy looking”, with reddish hair and a beard. She said this man was the “look out”. She said that “when everything had happened” this man had run over to his friends and then the three men took off down the road laughing.
In answer to a question from Mr Dooley’s counsel, this witness agreed that she did not see “the ginga” inflict either punches or kicks on the victim. It was put to her that all she saw was “the ginga” standing on the traffic island and then, later, with the two skinheads. She agreed that she could not discount the possibility that “the ginga” may have stopped the attack.
The driver of the car said that the first thing she noticed, was “two skinheads and a bearded man with hair looking rugged”. She said that this man had “orange hair”, and a beard. She thought he was possibly wearing sandals and baggy clothes. The witness said that she saw all three men on the traffic island. She went on to say that they all got “hyped up, the two skinheads more so than the bearded man”, and the two skinheads started running towards the Asian man on the bike. She said the bearded man was “absolutely laughing and loving what he saw, like, getting off on it, pretty much”.
In cross-examination, the witness was asked about her evidence that the skinheads and the bearded man were “hyping themselves up”. She said that “they were all definitely involved” and that “the bearded man was having an awesome time on the island”.
Mr Holmes said that he and Mr Peck chased the victim, who stopped and jumped off his bike, then Mr Dooley “just flew in and punched him over”. He said that he and Mr Peck kicked the victim, then left with the victim’s bike. He said Mr Dooley “stayed and was kicking” the victim.
Three people who were in the group which included Mr Dooley also gave evidence. None of them saw the victim being attacked.
Evidence relating to the fourth charge
The fourth victim said that the three men kicked open the gate to his house and ran towards him, as he and one of his flatmates were returning home. The men ran towards him as he was getting his key to open the door. The men verbally abused them, then one of the three punched the victim. He described this man as being the shortest of the three, and said that his hair “was not skinhead, rather short hair”, and that he had “many piercing on his ear”. The victim said that this person “appeared to be different” from the other two.
The victim said that a second man grabbed his chest and pushed his head against the entrance door. He said that the two taller men were taller than him, and that one was more strongly built than the other. He recalled that all three men were wearing black or dark clothing. He said that the man who was the shortest of the three had curly hair, shaved on the sides.
One of the victim’s flatmates said that the man who attacked the victim “had a short height and might be wearing white or black clothing”. She agreed in cross-examination that this man “had many piercings in his left ear”, but did not remember his hair. The other flatmate said that the three men “looked very hyped up”. In cross-examination he said that “two or all of them had piercing” and that he thought “one of them had skinhead and maybe another one had short hair and maybe the last one might be Mohican.
Mr Holmes said that he, Mr Peck, and Mr Dooley all went onto the victim’s property and that Mr Dooley had punched the victim. A member of the group with Mr Holmes, Mr Peck, and Mr Dooley gave evidence of seeing Mr Dooley “swinging the gates” and trying to break them open. She also said in evidence-in-chief that Mr Dooley had “stepped over the gates” and gone onto the property. She accepted in cross-examination that she had not seen Mr Dooley step over the gate. She also accepted that Mr Dooley had not been dressed in black clothing.
Evidence as to Mr Dooley’s comment to associates
Two witnesses, Mr Ruki and Ms Williams, gave evidence of a statement made to them by Mr Dooley. Mr Ruki said that Mr Dooley was his flatmate in September 2010. He said that one night late in September, Mr Dooley had told him that he had been in a bar in Riccarton and had “put the boot in, and stomped some Asians”, and had “got away scot free”. In cross-examination, he accepted that Mr Dooley had been a flatmate in mid-2010, not September. In re-examination, Mr Ruki said that the conversation with Mr Dooley was between 18 and 30 September 2010.
Ms Williams said in evidence-in-chief that Mr Dooley lived with Mr Ruki and herself for about a month around September 2010. She gave evidence of a conversation with Mr Dooley in which he said he had “gone out and smacked over some Asians and then how he got arrested and then managed to talk his way out”. Ms Williams said that Mr Dooley had a few grazes or cuts on his hands, and may have “had something on his face”. In cross-examination, Ms Williams accepted that she had earlier told the Police that Mr Dooley had moved in with herself and Mr Ruki in the mid to end of winter 2010.
In evidence in this Court, Mr Dooley said that he had spoken to Mr Ruki and Ms Williams about a fight he had had with some Asians (which left him with some cuts on his face) at a bar in Hereford St in Christchurch, and that he was relieved that he had not been arrested, because he had another person’s drugs in his pocket at the time. However, he said, those discussions were on 27 September 2010, and related to an incident the same evening, and had nothing to do with the evening of 24 September 2010.
Discussion
Ms Heah submitted for Mr Dooley that the evidence of the victim and the three members of the public was not sufficient to support a guilty verdict. This was, first, because their evidence was inconsistent as to their description of the man on the traffic island, and secondly, none of them described the man as actually participating in the attack. She submitted that, even if Mr Dooley were correctly identified as this man, his being there, even laughing at the attack, was insufficient for a finding of guilt as a party.
Ms Heah further submitted that the jury could not reasonably have accepted the evidence of Mr Holmes, and the associates; first because Mr Holmes was attempting to overstate Mr Dooley’s role, and secondly because they were all influenced by drugs and alcohol.
We are not persuaded that that there was insufficient evidence as to identification and participation on which the jury could reasonably conclude that Mr Dooley was guilty as a secondary party on the third charge, and guilty on the fourth charge. The evidence provided a plausible basis for concluding both that Mr Dooley was present with the two co-offenders at each attack and, in respect of the third charge, that he was guilty as a party by actively encouraging or assisting the assault committed by Mr Holmes and Mr Peck. Whether the jury were able to conclude that they were sure of Mr Dooley’s guilt was a matter for them.
Regarding the evidence of Mr Ruki and Ms Williams, we note that in the summary of evidence relied on by the Crown provided to the jury at trial, there was no reference to this evidence as supporting the Crown case on the third and fourth charges. In the defence summary provided to the jury, the inconsistencies between their evidence were highlighted, and the reliability of the evidence was questioned.
Further, in his summing-up, the Judge cautioned the jury as to assessing the credibility and reliability of the witnesses, noting in particular the need to check consistency with the evidence of other witnesses, and to consider the witnesses’ opportunity to see or hear, whether the witness had minimised or exaggerated, whether there was a possibility of collusion or contamination of evidence, and whether a witness had an interest in the outcome or a motive to lie. The Judge also directed the jury on the special need for caution before finding Mr Dooley guilty on the basis of visual identification evidence, and the need to be careful in deciding whether the evidence was good enough to be relied on.
We are not persuaded that, having regard to all the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that Mr Dooley was guilty on the third and fourth charges.
Was there a miscarriage of justice arising out of trial counsel error?
Introduction
In this ground of appeal it was alleged that trial counsel, Mr Davis, failed to call evidence to establish that Mr Dooley was not living with Mr Ruki and Ms Williams in September 2010, leading to a miscarriage of justice.
The approach to be taken in appeals against conviction raising an alleged counsel error was summarised in the judgment of the Supreme Court in
R v Sungsuwan.[3][65] Where error or irregularity is alleged and attributed to counsel, but that would not have affected the outcome … there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel’s conduct was such as to effectively deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found – and in extreme cases may need no inquiry.
[66] There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly have affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced – only to complain after the conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment by trial counsel which could well be made by another competent counsel in the course of a new trial.
Evidence
[3]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.
In his evidence in this Court, Mr Dooley said that his defence in the District Court was that he was present during the attacks, but not involved in them – that he had actually stopped a couple of them. He said that in a lengthy set of notes to Mr Davis he had set out the conversation with Mr Ruki and Ms Williams on 27 September 2010, referred to at [33], above. Mr Dooley’s notes included his having told Mr Ruki and Ms Williams he was “lucky because a heap of gooks got bashed up and the pigs had me cuffed up and I was covered in drugs”. The purpose of telling Mr Davis this was to show that Mr Ruki and Ms Williams were lying in their formal written statements (in which they said the conversation related to the events of 24 September).
Mr Dooley said that he gave Mr Davis the names and telephone numbers of several people who could give evidence that he was not living with Mr Ruki and Ms Williams in September 2010, but Mr Davis did not call them to give evidence.
Mr Davis agreed that he had received Mr Dooley’s notes, and said he had attempted to contact some of the persons named. Two of those he contacted were not prepared to assist. A third person did not respond to a message to call him. Mr Davis formed the view that calling a witness to establish that Mr Dooley was not living with Mr Ruki and Ms Williams in September 2010 was not important to the defence case, given that there were substantial problems with Mr Ruki’s evidence: as set out in the formal statement, Mr Dooley told them about the assaults on the Asians some two weeks after he started living with them, in either June or July – well before the assaults occurred in September.
Mr Davis also said that he explained to Mr Dooley that he was having difficulty contacting witnesses and/or persuading them to give evidence, and that Mr Dooley agreed that the witnesses were not essential, and need not be called. Matters were left on that basis. Mr Dooley did not expressly instruct Mr Davis to call evidence as to where he was living in September 2010.
Discussion
We observe, first, that Mr Dooley agreed, after receiving advice from Mr Davis, that it was not necessary to call evidence as to where he was living in September 2010. We are not persuaded that Mr Davis’s advice was, in the circumstances, unreasonable.
Further, we are not persuaded that any miscarriage of justice has occurred as a result of this evidence not being called. Mr Davis brought out the inconsistencies in Mr Ruki’s evidence as to the timing of the conversation in his cross-examination, and established that Ms Williams had thought Mr Dooley was “full of bravado”, and she did not believe him. Accordingly, he concluded that the evidence had little probative value. We accept that there would have been little utility in calling evidence as to where Mr Dooley was living.
Ms Leah also sought leave to adduce the evidence of Craig Singleton to contradict the evidence of Mr Ruki and Ms Williams. For the reasons just canvassed we do not consider it helpful. Accordingly, we decline leave to adduce that evidence.
Result
Time is extended for Mr Dooley’s appeal to be filed. The appeal against conviction is dismissed.
Solicitors:
Crown Solicitor’s Office, Auckland for Respondent
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