F v Police HC Nelson Cri-2007-442-7
[2007] NZHC 2028
•23 August 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2007-442-000007
BETWEEN F
Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 22 August 2007
Counsel: S J Zindel for the Appellant
H J Boyd-Wilson for the Respondent
Judgment: 23 August 2007
JUDGMENT OF WILD J
Introduction
[1] Mr F appeals against a finding by Judge Zohrab in the Youth Court that a charge of arson was proved against him. Mr Zindel condensed the seven grounds set out in the notice of appeal to two:
• The Judge erred in finding the key Crown witness, Mr Micah Dennison, to be a credible witness.
• The Judge’s finding must be set aside because it is inconsistent with the jury’s subsequent verdict finding Mr F ’s co-accused, Mr Conor Ruddock, not guilty.
[2] Mr F was jointly charged with Messrs Ruddock and Hippolite with arson, in that they recklessly damaged by fire a vacant residential property in Nelson.
F V NEW ZEALAND POLICE HC NEL CRI-2007-442-000007 23 August 2007
All three were charged as parties to the arson: the Crown’s evidence did not enable it to nominate a principal offender.
[3] Mr F admitted he went with Messrs Ruddock, Hippolite and Dennison to the empty house. The Crown case was that Mr Dennison left the house when Mr Ruddock started trying to set fire to curtains in the house. When Mr Dennison returned about 10 minutes later he saw the other three standing around a fire burning on the floor of the house. As the fire was already burning when he returned, Mr Dennison did not know who had lit it. It was for that reason that the Crown was unable to nominate a principal offender. While Mr Dennison was watching through a window, he saw Mr F lift some curtains off the fire, and then put them back onto it. The Crown submitted that act comprised active participation by Mr F in the arson.
Crown evidence
[4] Mr Dennison’s evidence-in-chief as to what Mr F did, and some necessary context, was as follows:
Did you see anyone inside the room … Yes. Who was that. … Jacob and Kane.
See anyone else in the house at all while you were at that window. … Not until a few moments later when Conor came back.
Which direction did he come back from. … He came from south of the house, but away from the front door.
Did he have anything with him. … Yeah, curtains. What did he do with those. … He put them on the fire.
Know what Kane was doing at this time. … Ah, standing around the fire.
Was he standing there the whole time you were watching. … Um, no later he went into the room that we had first gone into and got a box that was in the corner.
Can you describe the box. … Cardboard, like the banana box. What did he do with that box. … He put that on the fire.
What happened when he did that. … Ah, the flames went down and then the box caught on fire and they went back up again.
Describe how big the fire was. … Um, probably a metre or metre and a half off the ground and a metre and a half wide. (END OF TAPE)
Before the break you were telling the Court that you were outside the window that you had originally entered the house and were looking in towards the fire. What was Jacob doing around the fire. … Taking curtains off and putting them back on.
When you saying them off. Taking them off the fire. What would he do with them after that. … Um, put them back on.
(inaudible). … Nah.
[5] And under cross-examination from Mr Zindel:
You have said that Jacob took curtain material – you took it to be curtain material did you. … Yes.
Off the fire. Was that curtain material burning, I take it. … Yes. He put that curtain material back on the fire. … Yes.
If he put that burning curtain material elsewhere on the carpet he would have started another fire, would he. So all that Jacob was doing was pretty neutral because the stuff was burning anyway wasn’t it. … Yes.
And in fact your own interpretation of it was that Jacob was just being stupid. … I didn’t know what his intentions were.
You remember being asked by Detective Brunning whether Jacob was putting the fire out, or was he encouraging the fire and your response was “oh just being silly”. Got an agreed transcript from the video you gave the Detective. I can just show you the portion. You recall that answer I have just mentioned. Is that the situation that Jacob wasn’t a part of the encouragement of the fire, what he was doing was just neutral. … Yes.
[6] The Judge’s findings were these:
[69] When Mr Dennison returned to the house he saw both Mr F and Mr Hippolite present and he saw Conor return. Mr Dennison saw Mr F at one point pick up a curtain and then return it to the fire. In my view that is not a neutral action. He has been present throughout and by picking up the curtain, holding it up, and then reintroducing it to the fire he has aided, abetted and encouraged Conor. He has clearly exposed the curtains to the air and then reintroduced them to the fire.
[70] If Mr F had tried to then stomp on the curtain to put it out, then arguably he would have been attempting to disassociate himself from the fire. However, there is no evidence for that. The only reasonable inference that can be drawn from the proven facts is that his actions would
have not only encouraged the fire, but also Conor, the fire lighter. Accordingly, I also find the arson charge under s267(1)(b) and s66(1) proven against Mr F .
First ground – Judge erred in finding Mr Dennison to be a credible witness
[7] Mr Zindel submitted Mr Dennison was patently an unreliable witness. The nub of his submission was that Mr Ruddock was found not guilty by a jury at his trial in Blenheim on 15-16 August. Mr Dennison was again the key Crown witness and he gave the same evidence, save that he made a greater acknowledgment that he had been drinking beforehand, and he accepted that at one point Mr Ruddock was standing behind rather than to the side of the fire burning on the floor of the house.
[8] Mr Zindel acknowledged that Mr Ruddock, unlike Mr F , had given evidence, but sought to minimise the possible impact of that by pointing out that Mr Ruddock had made two, inconsistent statements to the Police in short order, confronting him with a credibility difficulty. At 2.33 pm on 15 October (the day following the arson) Mr Ruddock had told Constable Collins he did not know about the fire until he saw it raging in the house. Then, at 4.53 pm, he told the Police that he had gone to the house but had not entered it. He had asserted that it must have been either Mr F or Mr Hippolite who started the fire. His evidence at his trial was consistent with the second of those statements.
[9] The difficulty of challenging findings of credibility and reliability on appeal are well known. The leading case is generally accepted to be the Court of Appeal’s decision in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998]
3 NZLR 190. Although that is a case in civil law, it is equally applicable in criminal law, appropriately adjusted for the higher standard of proof: Gorrie v Police HC TIM AP3/02 William Young J, 31 October 2002.
[10] One of the cases cited in Rae is the Court of Appeal’s earlier decision in
Hutton v Palmer [1990] 2 NZLR 260 where, at 268, Somers J said:
Thus an appellate Court will interfere where the evidence accepted by the trial Judge is inconsistent with facts incontrovertibly established by other evidence or is patently improbable …
[11] The evidence of Mr Dennison here comes nowhere near fitting the category identified by Somers J. In fact, having read through it, I consider it well justifies the Judge’s finding that Mr Dennison is a reliable and credible witness. But I repeat that those are very much findings for the Judge and not for me, as only he had the benefit of hearing and observing Mr Dennison, particularly under cross-examination by defence counsel.
[12] Although the jury may well not have entirely accepted Mr Ruddock’s evidence, it may have left the jury in reasonable doubt as to whether Mr Ruddock was involved at all in lighting the fire. That does not indicate that the jury discarded Mr Dennison as an unreliable witness. The point is that the jury had the benefit of Mr Ruddock’s version of events, whereas Judge Zohrab did not.
[13] The first ground of appeal fails.
Second ground: Judge’s finding against Mr F inconsistent with jury’s verdict finding Mr Ruddock not guilty
[14] Mr Zindel submitted:
• Mr Ruddock, the alleged principal offender, was acquitted. There is no other candidate(s) for principal offender here. Certainly, it appears that the crime of arson was committed, but no principal offender has been convicted of that crime and there is no possibility of one being convicted. Judge Zohrab’s finding that Mr F was a party to Mr Ruddock’s arson, or to arson by anyone, therefore cannot stand.
• The Judge’s finding against Mr F and the jury’s verdict that Mr Ruddock is not guilty are “unjustly inconsistent”: Sweetman v Industrial and Commerce Department [1970] NZLR 139, 147-149. The former cannot stand.
[15] I do not accept either of these propositions. Upon Mr Dennison’s evidence, Judge Zohrab was satisfied that Mr F was a party to the arson. I accept that
several parts of the Judge’s decision indicate that he viewed Mr Ruddock as the principal offender. Examples are:
[11] … In relation to Mr F , the Crown allege that he was a party because of his presence when Conor Ruddock lit various fires …
…
[17] It is accepted on behalf of both Mr F and Mr Hippolite that they were present at the alleged offence, but they contend that mere presence is not enough. They deny they did anything to aid or abet Conor Ruddock in lighting the fires.
…
[70] … The only reasonable inference that can be drawn from the proven facts is that (Mr F ’s) actions would have not only have encouraged the fire, but also Conor, the fire lighter. …
[16] However, it was not the Crown case that Mr Ruddock was the principal offender. I have already pointed out that Mr Dennison’s evidence did not establish who had lit the fire, so the Crown could not and did not nominate any one of the three accused as the principal offender.
[17] It follows that this is not a case “where the only possible perpetrator has been acquitted”. That distinguishes this case from R v Waaka HC HAM T010076 9 July
2001 Hammond J where the rapist (Mr Tauroa) allegedly aided by Mr Waaka was acquitted; he was discharged under s347 Crimes Act 1961 as there was no admissible evidence against him. Waaka was the case Mr Zindel primarily relied on to support the second ground of appeal.
[18] I agree with Mr Boyd-Wilson for the Crown that this case is much closer to R v Reweti CA 234/94 16 February 1995. Mr Reweti was convicted as party to aggravated robbery of a PostBank and of car conversion. The Crown case was that Mr Mahaki and Ms Te Paki were the robbers and Mr Reweti was the driver of the recently converted car used to take them to the bank and later to make a getaway with the robbery proceeds.
[19] At the trial in the Wellington High Court Ms Te Paki did not appear and the
Crown proceeded only against Messrs Mahaki and Reweti. The jury found Mr
Reweti guilty on both counts but were unable to agree on Mr Mahaki and a retrial was ordered. The jury in that retrial found both Ms Te Paki and Mr Mahaki not guilty, apparently because the jury were not satisfied with the Crown’s identification evidence.
[20] Delivering the Court’s judgment in Reweti, Casey J said this at pp 2-3:
… Accordingly Reweti stands convicted for helping unidentified principals in an aggravated robbery, because there can be no doubt that the bank was robbed by two people and that they were driven away by an accomplice. There was sufficient evidence identifying Reweti in that role to establish his guilt as a party in particular the testimony of those who associated him with the Honda.
If the indictment had simply charged him with robbery with persons unknown the conviction could not be assailed. Mr Yeoman accepted this, but submitted that because three accused were named as parties to the robbery, his conviction could not stand in the light of the acquittal of the other two. We are unable to accept this reasoning. Reweti’s conviction did not depend on the identify of the others named in the count. …
[21] Here, the charge of encouraging/assisting the unidentified perpetrator of the arson (i.e. the lighter of the fire) has been proved against Mr F . That finding did not depend on the Crown identifying the principal arsonist.
[22] Nor do I see anything “unjustly inconsistent” as between the charge proved against Mr F , and the charge not proved against Mr Ruddock. There were two quite separate trials with different evidence. In particular, the jury in Mr Ruddock’s trial heard evidence from Mr Ruddock, whereas Judge Zohrab did not hear evidence from any of the alleged offenders.
[23] The second ground of appeal also fails.
Result
[24] As neither ground of appeal has succeeded, the appeal is dismissed. The consequence is that the Judge’s finding that the charge was proved against Mr F stands.
Solicitors:
Zindels, Nelson for the Appellant
Crown Solicitor, Nelson for the Respondent
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