Flavell v The Queen
[2016] NZCA 58
•10 March 2016 at 10:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA481/2015 [2016] NZCA 58 |
| BETWEEN | PETER JAMES FLAVELL |
| AND | THE QUEEN |
| Hearing: | 2 March 2016 |
Court: | Randerson, Peters and Collins JJ |
Counsel: | M B Meyrick for Appellant |
Judgment: | 10 March 2016 at 10:30 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT
(Given by Collins J)
Background
Mr Flavell was convicted on one charge of kidnapping and one charge of injuring with intent to injure following a jury trial in the Manukau District Court presided over by Judge Andrée Wiltens.[1]
[1]Under ss 209(b) and 189(2) of the Crimes Act 1961.
Mr Flavell filed a notice of appeal against the kidnapping charge and the sentence of three years and eight months imprisonment imposed on both charges.[2] Ultimately, he did not pursue the sentence appeal.
[2]R v Flavell [2015] NZDC 16499.
The events giving rise to Mr Flavell’s convictions occurred after his friend, Ms Nukunuku, arranged to purchase a television through a company called Dream Shop. Dream Shop’s business involves selling household items on a rent‑to‑buy basis. The amounts paid by Dream Shop’s customers are significantly higher than normal retail prices.
Mr Flavell became angry when he learnt of the terms upon which Ms Nukunuku had agreed to purchase the television from Dream Shop.
Mr Flavell arranged for Mr Singh, the sales manager of Dream Shop, to go to an address in Clendon Park on the pretext Mr Flavell would purchase items from Dream Shop.
Mr Singh went to the address where Mr Flavell was waiting. The Crown case was that Mr Flavell became aggressive and locked the door and started punching Mr Singh in the head. Mr Singh was too frightened and intimidated to try to leave. At one point Mr Flavell showed Mr Singh a Nomads Gang patch on the back of the jacket Mr Flavell was wearing. This was designed to intimidate Mr Flavell. Mr Singh told the jury Mr Flavell also told him that to become a member of the Nomads Gang you have to murder someone, and that he, Mr Flavell, had spent 10 years in jail for murder.
Approximately 15 to 30 minutes later Ms Nukunuku and two men entered the room. Ms Nukunuku punched Mr Singh while one of the men, Mr Thomas, held Mr Singh by his shoulders and warned him not to go to the police. Mr Singh was allowed to leave after he gave an assurance he would make Dream Shop refund the money paid by Ms Nukunuku.
Ms Nukunuku and Mr Thomas pleaded guilty to kidnapping and injuring Mr Singh with intent to injure him.
At his trial, Mr Flavell acknowledged striking Mr Singh three times about his face and said he was trying to assist Ms Nukunuku to recover the money she had paid Dream Shop. Mr Flavell acknowledged showing Mr Singh his gang insignia and that he was a member of the Nomads Gang at the time, but denied saying that he had been convicted of murder. Mr Flavell also said that in any event he had never been convicted of murder. Mr Flavell acknowledged, however, that he had intimidated Mr Singh.
The essence of Mr Flavell’s defence was that he did not intend to detain Mr Singh against his will.
The jury convicted Mr Flavell of both kidnapping and injuring Mr Singh.
Grounds of appeal
The grounds of appeal have been distilled to two points:
(a)During the trial the jury were told Ms Nukunuku and Mr Thomas had pleaded guilty to kidnapping and injuring Mr Singh. Mr Flavell appeals on the basis that the convictions of his co-accused should have been excluded as evidence and that the trial Judge’s summing-up on this point was prejudicial to Mr Flavell.
(b)The officer in charge said in his evidence Mr Flavell was known to the police by another name. Mr Flavell’s second ground of appeal is that this evidence was prejudicial and led to a miscarriage of justice.
First ground of appeal
The trial Judge permitted the introduction of the evidence about Ms Nukunuku’s and Mr Thomas’s convictions pursuant to s 49 of the Evidence Act 2006. The relevant parts of that section provide:
49 Conviction as evidence in criminal proceedings
(1)Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.
…
(3)A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.
Mr Flavell’s counsel opposed the Crown’s application to adduce the evidence of Ms Nukunuku’s and Mr Thomas’s convictions. However, the trial Judge accepted the Crown’s submission that the evidence in question was relevant to establishing whether or not Mr Singh had in fact been kidnapped.
Having allowed the jury to be told of the conviction of Mr Flavell’s co‑accused, it was incumbent upon the trial Judge to ensure the jury knew they had to focus upon the charge against Mr Flavell and not place undue weight on the convictions of Ms Nukunuku and Mr Thomas.
In his closing address, counsel for the Crown said:
… Of course, you shouldn’t reason that just because they were convicted of those offences it means that Mr Flavell is automatically guilty because he was associating with them earlier at the time. You still need to consider Mr Flavell’s role independently of the fact of those convictions and to just reason to that conclusion would be quite wrong. But what the Crown says is is that you can take it from those convictions as conclusive proof that Mr Singh was detained in the room by those two people …
Defence counsel also pointed out that the guilty pleas by Ms Nukunuku and Mr Thomas were from their “perspective” and that the jury needed to focus on Mr Flavell’s role in the events in question.
In summing up, the trial Judge said:
[22]You know from the evidence that both Ms Nukunuku and Mr Thomas have been convicted of these offences. What that means is that that is absolute proof that they committed the offences. What you are now looking at is to see whether Mr Flavell also committed those offences, so you can take those convictions into account insofar as they apply against Ms Nukunuku and Mr Thomas.
The trial Judge explained to the jury it needed to be sure Mr Flavell detained Mr Singh in the bedroom, that the detention was intentional, that the detention was unlawful, that Mr Singh did not consent to being detained, that Mr Flavell knew Mr Singh did not consent to being detained, and that Mr Flavell intended to confine Mr Singh.
While it would have been desirable for the trial Judge to have given a more explicit direction similar to the statement made by counsel for the Crown, we are satisfied the jury were adequately instructed.
This Court has previously held in R v Taniwha:[3]
... unfair prejudice will not necessarily result from allowing the conviction of a co-accused to be adduced where the effect is to close off some live issue that might otherwise have been relied on as part of a defence.
[3]R v Taniwha [2012] NZCA 605, [2011] 2 NZLR 771 at [44]; leave to appeal declined in Taniwha v R [2013] NZSC 10. See also Goffe v R [2011] NZCA 186; Morton v R [2015] NZCA 322.
In our assessment, the evidence that Ms Nukunuku and Mr Thomas had pleaded guilty to kidnapping was probative of an element of the charge of kidnapping, namely, whether Mr Singh had in fact been detained without his consent.
While the evidence of Ms Nukunuku and Mr Thomas’s conviction may have been prejudicial, we are not satisfied the probative value of that evidence was outweighed by the risk that it would have had an unfairly prejudicial effect on the trial.[4] The evidence that Ms Nukunuku and Mr Thomas had pleaded guilty did not prevent Mr Flavell from defending the kidnapping charge. In particular, the evidence of the convictions of Ms Nukunuku and Mr Thomas did not impact upon Mr Flavell’s ability to advance his defence that he had no intention of detaining Mr Singh against his will.
Second ground of appeal
[4]Evidence Act 2006, s 8.
During his evidence-in-chief the officer in charge said:
The details he gave me are surname, Flavell. I – before this, I’ll just mention that I understood that the defendant’s name was William Maihi because he goes by two names but he confirmed for me that that was just an incorrect name that he gave to the police earlier on and so we got that changed so that his name comes up as Peter James Flavell in our system now …
No issue was taken with this evidence at trial.
The Crown acknowledges it was unwise for the officer in charge to have given this evidence.
We are, however, not satisfied this evidence was so unfairly prejudicial that a miscarriage of justice occurred. There are two reasons why we have reached this conclusion.
First, evidence that a defendant is known to the police and goes by more than one name is not in itself inherently prejudicial. The evidence in question could not be equated with a statement to the effect Mr Flavell had previous convictions. It was evidence that he was known by two names.
Second, when the evidence in question is viewed in context it is clear it is unlikely to have had much impact. This was a trial in which the jury had been told, without objection from Mr Flavell, that he was a member of a gang. This evidence was admissible because it supported the Crown theory that Mr Flavell had engaged in intimidatory tactics, which included making Mr Singh aware of his gang affiliations.
When viewed in this context, the evidence to which Mr Flavell now takes objection was not significant and is unlikely to have influenced the jury. We are satisfied there was no real risk that the outcome of the trial would have been different if this evidence had not been given.
Conclusion
Neither ground of appeal succeeds. The appeal against Mr Flavell’s conviction is therefore dismissed as is his appeal against sentence.
Solicitors:
Berman & Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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