Gruenwald v The Queen
[2004] NZCA 176
•9 August 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA99/04
THE QUEEN
v
GAYNE LEVI NOAH GRUENWALD
Hearing:19 July 2004
Coram:McGrath J
Goddard J
Heath JAppearances: J H M Eaton for Appellant
A Markham for Crown
Judgment:9 August 2004
JUDGMENT OF THE COURT DELIVERED BY GODDARD J
Introduction
[1] The appellant was tried with two others on an indictment containing six counts. All of the charges arose from a single episode of offending, which involved unlawful entry into a private dwelling house, a serious assault on the occupier, and the removal of a number of items from the house. The appellant was charged with breaking and entering the dwelling house with intent to commit a crime therein; together with his co-accused robbing the occupier of a television set and an X-Box game console; injuring the occupier with intent to injure him; and wilfully damaging a window. His co-accused, Messrs Kennedy and Hogg, were also charged with breaking and entering and with robbery of the television set and X-box. In the alternative, Mr Kennedy was charged with theft of the X-Box and Mr Hogg with theft of the television set. Mr Kennedy was also charged with injuring the occupier with intent to injure him.
[2] Prior to trial commencing the appellant pleaded guilty to the charge of wilful damage and Mr Kennedy pleaded guilty to breaking and entering, aggravated robbery of the X-Box and injuring with intent. At the conclusion of the Crown’s case Mr Hogg pleaded guilty to breaking and entering and to the alternative charge of theft of the television set. He was discharged pursuant to s347 of the Crimes Act 1961 on the charge of aggravated robbery.
[3] The appellant was convicted by the jury of breaking and entering, aggravated robbery and injuring with intent. He now appeals against those convictions. Notwithstanding his appeal against the conviction for injuring, Mr Eaton advised that the appellant had in fact intended to plead guilty to the injury charge although he did not do so. It is clear however that he acknowledged culpability in relation to the assault at trial and no defence was advanced in relation to it.
Background facts
[4] The complainant and his 11 year old daughter had been in a flatting situation with the appellant’s mother, Norine Gruenwald, in a farm cottage about 3km north of Fairlie. This was the dwelling house where the subject offending took place. During the period they were flatting together the complainant entered into a hire purchase agreement with Bond & Bond for the purchase of the X-Box and television set. The items were purchased in the name of the appellant’s sister Lydia Gruenwald with her consent because the complainant was unable to obtain credit in his own name. In addition, Mrs Gruenwald lent the complainant $200 for the deposit on the goods.
[5] After about 3-4 weeks Mrs Gruenwald moved out of the cottage, leaving behind her a number of household items, including a lounge suite, a couple of mattresses and a bed base. At the time she moved out the complainant still owed her $100 for the deposit and there was also outstanding a rental bond of $200 which she had paid.
[6] After Mrs Gruenwald moved out the complainant sent her a letter (not produced in evidence) in which he said:
Norine
Ryan has stolen stuff from my house thanks to you. If they are not returned don’t bother showing your face on my property as from this point you get fucking nothing!
You remind me why not to trust anyone.
[7] A short time afterward, the complainant received a text message from Lydia Gruenwald, in which she asked “Why are you hassling my mother, what did she do to deserve this, or what did she ever do to you”. The complainant acknowledged that he responded to that message with a text message to the appellant containing the threat “Keep your nose out of my business or I will come looking for you”.
[8] On the evening of 1 August 2003 the appellant and Mr Hogg were drinking together and decided to pay the complainant a visit late that night, give him a beating and retrieve Mrs Gruenwald’s property. The aid of Mr Kennedy was enlisted for this venture and the three drove to Mrs Gruenwald’s new address in Fairlie in Mr Hogg’s vehicle with a trailer. More alcohol was consumed at Mrs Gruenwald’s address and the plan was further discussed. Mrs Gruenwald suggested that the complainant may have a weapon at the farm cottage so it was decided that the appellant would enter through the back door of the cottage while Mr Kennedy entered through the front door. At about 11.00pm the three men and Mrs Gruenwald drove out to the farm cottage. On arrival the appellant walked in the back door without knocking and confronted the complainant in the lounge. His 11 year old daughter was sitting on the couch. The complainant repeatedly asked the appellant to leave but the appellant pushed him forcefully into the fireplace whereupon the complainant hit back at him. The appellant then began punching the complainant repeatedly in the face. At one point the complainant got a hold on the appellant, at which point the appellant called for his co-accused who then each held the complainant while the appellant continued punching him in the face, including after he had fallen to the ground and was unable to move. Mr Kennedy also punched the complainant a number of times. In evidence the complainant said that the appellant then told Mr Kennedy “or whoever was there” to “grab the TV and the X-Box”. He remembered four people being present: the appellant, Mr Kennedy, Mr Hogg and Mrs Gruenwald. He said that while these items were being taken the appellant continued to hold him down on the ground by the throat and to beat him. After the others left the room he started kicking the complainant in the head and jumping on him. Throughout the complainant could hear his daughter screaming in the background. At one stage Mr Hogg told the appellant that the complainant had had enough and tried to pull him off but was unsuccessful.
[9] The appellant appears to have desisted from the assault when he went to help Mrs Gruenwald carry one of her beds out of the house. A short time later the complainant heard the appellant breaking windows before the party departed from the address in Mr Hogg’s vehicle.
[10] The television set was later recovered from the basement at Mr Hogg’s address and the X-Box was found at Mr Kennedy’s address. The Crown suggested that this constituted payment for assisting the appellant.
[11] The complainant sustained multiple facial and skull haematomas, welts around his neck and shoulders consistent with being held by the throat, bruising to the upper left cheek, blood in his nostrils and a mild head injury. He also suffered a broken thumb and back pain consistent with a soft tissue injury. He was admitted to hospital overnight with follow-up appointments with an oral surgeon and an orthopaedic surgeon.
[12] The following morning the appellant was interviewed by a police constable. The interview focussed on the assault and at the conclusion the appellant was arrested and charged with injuring with intent to injure. No further charges were laid at that stage. The next day he was reinterviewed by a detective to whom he gave the following explanation:
Q.Why did you go out there?
A.To get the stuff for mum.
Q.And?
A.I knew we would probably have a fight but didn’t think it would get as bad as it did.
Q.Tell me about the TV and X-Box?
A.What about them.
Q.Why did you take them?
A.Because they under Lydia’s name, and Richard had text’d Lydia threatening, so I said while I was getting Mum’s stuff, I would get these things too.
Q.[They] were in Lydia’s name to help Richard buy them is that right?
A.Yes.
Q.So even though they were in Lydia’s name, it was Richard who was paying for them?
A.Yes, I don’t know if he had been paying for the last couple of weeks or not.
Q.So they were Richard’s TV and X-Box?
A.From the text it didn’t seem like he was going to pay for it.
Q.But he had paid some payments mustn’t he?
A.Yeah, I guess because Lydia hadn’t had any phone calls.
Q.So you had no right to take the items did you if he has made at least one payment?
A.Yes, that’s a good argument.
Q.So you were taking them to teach him a lesson, weren’t you?
A.I was getting them back for Lydia.
Q.This was talked about between you and Chris [Kennedy] and Paul [Hogg] before you went to Richard’s house that night?
A.Yes.
Q.So all 3 of you talked about getting the TV and X-Box off Richard in the car?
A.I said that I wanted to get mum’s stuff and would get the TV and X-Box while we were there because they were in Lydia’s name and he wasn’t paying for them.
Q.Why did you ask Paul to hide the TV?
A.I said I would get it off him in a couple of days, when I was sober.
Q.You didn’t just ask him to hold it, you asked him to hide?
A.I can’t remember saying those exact words, I was pretty drunk.
Q.If it was to get Lydia’s stuff back for her, why did Chris keep the X-Box and Paul hide the TV?
A.I don’t know, it’s their choice I suppose. I would have got it back off both of them, I’m not worried.
Q.Both of them have admitted hiding them from the Police.
A.Well that’s their choice.
Q.Is the bruise on your right thumb as a result of the assault on Richard?
A.It could be, I injured my hand later that night on a broke bottle I don’t know.
Q.Do you have anything else to add?
A. No
Defence advanced at trial
[13] The primary defence advanced on behalf of the appellant in relation to the burglary and aggravated robbery charges was that of colour of right. A secondary defence was that, due to the history of violence between the complainant and the appellant, there was an expectation that a further violent episode could erupt during the visit and that any violence that did in fact take place was both incidental and unrelated to the removal of any property from the complainant’s address.
[14] The appellant gave evidence at trial but neither Mrs Gruenwald or Lydia Gruenwald were called to give evidence. Both had been interviewed by the police, Mrs Gruenwald on the day after the incident and Lydia two days later. Mrs Gruenwald had also met with trial counsel some weeks in advance of the trial and expected to be called as a witness. She was present at court during the trial but remained out of court whilst the trial proceeded. In the event she was not called to give evidence and went into court to hear the trial Judge’s summing up.
Grounds of appeal
[15] The following grounds were advanced in support of the appeal:
(i)The learned trial judge misdirected the jury as to the law of aggravated robbery
(ii) Trial counsel made a radical error in:
(a)failing to call the appellant’s mother and/or sister as defence witnesses at trial
(b)failing to lead relevant and admissible evidence from the appellant
(iii)The learned trial judge:
(a)wrongly extracted from trial counsel an undertaking to address the issue of fabrication and consistency in the evidence of [the complainant’s daughter] in his closing address on behalf of the appellant
(b)wrongly allowed unfair and inappropriate cross examination of the appellant and an unfair and inappropriate closing submission by Crown counsel
Alleged misdirection in relation to aggravated robbery
[16] Much of the argument in support of this ground of appeal focused on the Crown’s reliance on the same assault as constituting the element of violence in the charge of aggravated robbery as well as the actus reus in the count of assault with intent to injure. An intent to commit the same assault had also been relied on as one of two unlawful intents harboured by the appellant at the time he broke into the farm cottage, the other being an intent to steal the television set and X-Box.
[17] The evidence against the appellant clearly supported the charges of breaking and entering with intent to assault the complainant and of assaulting the complainant with intent to injure him, the separate elements of those charges being mutually supportive but not duplicitous. There was also evidence to support his conviction on the aggravated robbery charge, if the jury was satisfied that he had, as at least a secondary intent, a shared intention to take the television set and X-Box and the jury were satisfied that he did so without colour of right. The addition of the charge of aggravated robbery added little, if anything, to the case against the appellant although it reflected the essential case against each of his co-accused. The elements of the aggravated robbery as alleged by the Crown were that the appellant together with his co-accused (Mr Kennedy as a principal and Mr Hogg as a party) assaulted the complainant with the intention of robbing him of the television set and X-Box. The element of theft in the charge had necessarily to be confined to the television set and X-Box, as the other property taken belonged to Mrs Gruenwald.
[18] The direction given by the trial Judge in relation to the charge of aggravated robbery was as follows:
[30] The first of the three elements which the Crown must prove in relation to count 2 is that the accused was acting together with at least one other person. The Crown says that you will have little difficulty in this case in finding that the accused was acting together with at least Mr Kennedy. The Crown must prove that the accused, and at least one other person, were acting with a joint purpose. They may have played different parts or different roles but the Crown has to satisfy you that there were two or more people actively involved in some way.
[31] Secondly, the Crown must prove that as part of the joint purpose one or more of those involved assaulted the complainant, Mr McLaren. An assault is the deliberate application or attempted application of force to another person’s body. The kind or degree of force does not matter. The Crown’s case here is that there is simply no doubt that Mr McLaren was assaulted by the accused, Mr Gruenwald, and also by the man who the Crown says Mr Gruenwald was acting together with, namely Christopher Kennedy.
[32] The Crown must also prove beyond reasonable doubt that the joint intention or purpose in assaulting Mr McLaren was to rob him of these two items. There does not have to be an express demand for the complainant to hand over property or particular items of property. That intention may be inferred from all of the evidence. Indeed in some cases it is not necessary for the Crown to prove that the object has in fact been carried out and that there has been a successful theft, although in this case the Crown says that there was in fact a theft of these two items. It is the intention at the time of the assault that is the key issue.
[33] The expression “robbery” essentially means theft accompanied by violence. Theft is the taking of somebody else’s property fraudulently, which means dishonestly, and without colour of right, with the intention of permanently depriving the owner of the item or items. This means therefore that there must be a taking of the property, a deliberate physical moving or removing of it; that the taking must be dishonest and without a genuine, even if mistaken belief, that there was a right to take it, and that there was an intention to deprive the owner permanently of the items, not just a borrowing of the items.
[34] A theft becomes robbery if at the time the property was taken the offender used violence to either achieve the taking or to prevent or overcome resistance to the property being stolen. There must be a direct connection between the taking of the property and the use of violence.
[35] To summarise in relation to count 2, the Crown must prove, first, that the accused was acting together with at least one other person, that is with a joint purpose. Secondly, that as part of the joint purpose the accused or both the accused and the other person, Mr Kennedy, assaulted Mr McLaren, and thirdly that the joint intention or purpose was to commit a robbery, that is to commit theft accompanied by violence.
[19] The criticism of the Judge’s direction on the elements of aggravated robbery, as advanced by Mr Eaton, centred on the order in which the Judge dealt with each of the elements of the charge. Mr Eaton submitted that the Judge should have commenced by directing the jury to first consider proof of theft as the first essential element of the offence of aggravated robbery. He said the Judge should next have directed the jury as to how that theft might become a robbery. Following that he should have directed the jury as to how that robbery might become an aggravated robbery. His argument was that the Judge failed to articulate to the jury that they had to be satisfied that the joint purpose of the co-accused was a robbery in which the appellant and at least one other had knowingly and intentionally participated. Instead, he had directed the jury that the Crown must prove as part of the joint purpose that one or more of those involved had assaulted the complainant. In adopting this approach, he said, the direction failed to adequately convey the concept of combined force to achieve the joint purpose of theft. Expressly, he submitted:
… at no time did the Crown or the trial Judge attempt to identify the assault relied upon to prove the aggravated robbery distinct from the assault relied upon for the charge of injuring with intent to injury.
A critical limb of the defence case was that the assault on the complainant was quite distinct from and incidental to the taking of property. It follows that it was implicit that the trial judge clearly direct the jury regarding this defence and explain clearly what was meant by the direction at paragraph [34] that “there must be a direct connection between the taking of the property and the use of violence”. His Honour does not address this matter further at all. In the context of the present case this matter required a full and clear direction.
[20] The elements of the crime of aggravated robbery, as set out in s235(1)(b) of the Crimes Act 1961 under which the appellant was charged, are that an accused “being together with any other person or persons, robs any person”. This requires proof that an accused was part of a joint enterprise of robbery by two or more persons, the essence being a common intention to use combined force in carrying out the robbery. The elements of robbery are “theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen”.
[21] The criticism of the Judge’s direction centred on the order in which he directed the jury about each of the elements they were required to find proved. However, the analysis conducted by Mr Eaton involved a comparison of the accepted form of direction for a charge of aggravated robbery under s235(1(a) rather than for a charge under s235(1)(b). The elements of the different offences under s235(1)(a) and s235(1)(b) require different treatment, the essence of s235(1)(a) being the infliction of grievous bodily harm at the time or immediately after robbery and the essence of s235(1)(b) being a “common intention” on the part of the robbers “to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime”: see R v Galey [1985] 1 NZLR 230 (CA) at 234 lines 4-6.
[22] The accepted approach when directing a jury about the elements of aggravated robbery under s235(1)(a) is to advise the jury to consider the elements as a series of stages or layers: first, whether the Crown has proved there was a theft; if so, whether at the time the property was taken the offender or offenders used violence or threats of violence; and third, whether the robbery was aggravated (that is, made worse) by the offender or offenders causing grievous bodily harm to the victim.
[23] In contradistinction, however, under s235(1)(b), which is essentially an assault by two or more persons with intent to rob, the accepted form of direction is somewhat different. The jury are to be directed that, to succeed on this kind of charge, the Crown has to prove beyond reasonable doubt: first, that an accused was acting “together with” at least one other person (that is, with a joint purpose); second, that as part of the joint purpose the accused, or one of them, assaulted the complainant or threatened to assault the complainant; third, that the joint intention or purpose in assaulting the complainant was robbery. Then follows a direction about the elements of robbery; that is, that a “robbery” is theft accompanied by violence or threat of violence, followed by an explanation as to how a theft becomes a robbery. In summary, therefore the jury is to be directed on a charge of aggravated robbery under s235(1)(a) that the Crown must prove:
1.That the accused was acting together with at least one other person, that is, with a joint purpose;
2.That, as part of the joint purpose, they, or one of them, assaulted the complainant;
3.That the joint intention or purpose was to commit a robbery.
[24] When the accepted direction for a charge of aggravated robbery under s235(1)(b), as outlined above, is compared with the directions given by the trial Judge in the appellant’s case it can immediately be seen that the Judge’s approach was correct.
[25] In conclusion therefore, although the introduction of a charge of aggravated robbery in addition to the charges of burglary and assault with intent to injure rendered the trial Judge’s task in summing up the case for the appellant more onerous, the charge was not of itself duplicitous and the directions that the Judge gave to the jury on the approach they should take to their task were entirely correct.
[26] This ground of appeal must fail.
Alleged error by trial counsel
[27] The two radical errors alleged on the part of trial counsel concerned the defence of colour of right as first raised by the appellant in his police interview and set out in para [12] above. The essence of the defence was the appellant’s asserted belief that he was entitled to remove the television set and X-Box, on the basis that the complainant was or was about to default on the hire purchase instalments and the items were in his sister’s name. The errors alleged on the part of defence counsel in conducting this defence were alleged failure to elicit in evidence the basis of the appellant’s honest belief and failure to call evidence from Mrs Gruenwald and Lydia Gruenwald as to what belief they had induced in the appellant about their entitlement to the television set and X-Box.
[28] We deal first with the alleged failure by counsel to elicit from the appellant a foundation for any honest belief he held about ownership of the television set and X-Box. The trial transcript records the following two passages from his evidence in chief:
Q.What was your purpose of going to that address this evening?
A.To collect my mother’s goods.
Q.You can’t tell us if anyone told you something, but were you aware there were goods there that belonged to your mother?
A.Yes Mum asked if I could bring a trailer out and help her.
Q.What goods did you know were there?
A.Mattresses, the washing machine which we ended up leaving behind, a few little things, ornaments and things, I am not 100% correct on what was there.
Q.What about the X-Box and television set we have heard about, what did you know about those?
A.Mum told us when we got [OBJECTION – hearsay]
Q.You can’t tell us what your Mum told you. You were aware there was an X-Box and television set there?
A.Correct, once I got to my Mum’s place.
Q.Were you aware of the way in which those items had been purchased?
A.Yes.
Q.Were you, what was your intention in relation to those items, the X-Box and television set?
A.Stopping them from getting repossessed.
Q.Did you think you had the right to do that?
A.I still think I do, I don’t like the way it happened.
…
Q.What about the X-Box and television, did you think you were doing anything wrong in picking up those?
A.No I still don’t.
Q.Why don’t you think?
A.Because I believe he wouldn’t have continued paying because he couldn’t afford to. I have known him for years, and my sister couldn’t have them repossessed, so take them so they will be paid for and not repossessed.
Q.You know because of the evidence presented in this court today that the payments to Bond & Bond were up to date at the time?
A.I found out yes.
Q.Did you know that at the time?
A.No.
Q.What did you believe the position to be?
A.He owed my Mum money for the bond and I believed he couldn’t afford future payments. I don’t know if he is up to date at the moment.
[29] Mr Eaton’s criticism of the above evidence was that defence counsel, the Crown prosecutor and the trial Judge had all erred by not permitting the appellant the opportunity to explain what he had been told by his mother and his sister about the television set and X-Box. In the Judge’s case this was said to have manifested in a failure to intervene and allow the evidence, or to rule against the Crown prosecutor’s objection. The above passages of evidence do however contain an adequate foundation for the appellant’s colour of right defence, based on a claimed belief that the complainant had not repaid his mother for the deposit on the hire purchase goods and a further claimed belief that the complainant would be unable or unwilling to meet future instalments under the hire purchase agreement. Even if that were not so, the trial Judge clarified the matter at a later point of the appellant’s evidence in chief, by asking the following questions in order to elicit whether there had been any discussion beforehand about entitlement to the television set and X-Box:
Q.Do I understand that at that point, you said ‘go ahead and take what Mum tells you to take’?
A.Pretty much.
Q.There had been no discussion about the X-Box and television beforehand?
A.Not that I know of, except for Mum saying he owed for the deposit and he might not be able to pay for it in the future but I didn’t say we were going there to grab the stuff.
[30] We are satisfied there is nothing in this alleged failure by defence counsel and the trial Judge.
[31] The second limb of the alleged radical error by defence counsel was an alleged failure to call either Mrs Gruenwald or Lydia Gruenwald to give evidence at the trial in support of the colour of right defence. Affidavits have been filed in this Court by both women and received. Annexed to the affidavit of each is the statement each made to the police soon after the incident. Lydia Gruenwald’s affidavit is extremely brief and simply confirms that she was always willing and available to give evidence in accordance with her police statement, and contrary to evidence called by the Crown at trial she was in no doubt that she had received notice from Bond & Bond that the complainant had missed payments. Unfortunately, however, her baby daughter had destroyed that notice.
[32] In her statement to the police, annexed to her affidavit, Lydia had said:
[The complainant] still owes my mother money for the bond he was supposed to pay her.
…
The goods [were] bought in my name but [the complainant] paid the deposit & was going to pay $20.00 a week.
He borrowed the deposit off mum.
We took the goods away from the shop that day, he dropped me off at home & then drove to Fairlie.
I had a verbal argument with him, that if he stuffed up one payment, I would take the stuff off him & pay him whatever he had already paid & finish the payments myself.
He agreed to this. I told him that was the deal before I would agree to put it in my name.
As far as I know he started making payments.
About 2 weeks ago, I got a letter from Bond & Bond say that, I think about 3 or 4 payments had been missed.
…
I live at home with Gayne, my brother. I showed him the letter. He already knew about the agreement I had with [the complainant]. I’m pretty sure I showed him the letter. He said he would go & talk to him & try & get the property back for me.
He also talked about getting some of mum’s property back, as she still has stuff at the house.
I last spoke to him about 2 or 3 weeks ago.
[33] Evidence was however called by the Crown in rebuttal of this intimated defence of colour of right. This evidence came from the manager of Bond & Bond, Timaru. The manager advised the Court that Bond & Bond’s hire purchase records recorded purchase of the television set and X-Box in the name of “Lydia Gruenwald”, and recorded that an automatic payment had been set up to pay regular instalments in payment of the purchase price. The records further showed that the payments were up-to-date and that no arrears notice had been sent. The manager’s evidence was that if there had been any problems with the payments, an arrears notice would have been sent and this would have been recorded. His evidence was read by consent at the trial and it is difficult to see how it could credibly have been the subject of any challenge. What it renders immediately apparent is the difficulty for the defence in presenting Lydia Gruenwald as a reliable witness. Although her credibility was not the central issue and it was the appellant’s honest acceptance of what she might have told him that was important, her evidence about that was entirely equivocal, as was the appellant's statement to the police explaining why he took the items. In this regard, Lydia’s proposed evidence had also to be measured against the appellant’s acknowledgement to the police that there was a “good argument” against his alleged right to take the items.
[34] We come then to the situation of Mrs Gruenwald. In her affidavit filed in support of the appeal, she said, inter alia:
Although no brief of evidence was ever prepared for me recording the evidence that I was able to give on behalf of the appellant, I had confirmed to Mr Radford that the statement I made to the police was the truth, that it was my decision as to what property was taken and that from my discussions with the appellant I believed he would have known and believed that the X-Box and TV were in my daughter Lydia’s name, that Mr McLaren had defaulted on the payments he was supposed to be making for those items, and that those items were to be collect along with my person property that was still in Mr McLaren’s possession.
Annexed hereto and marked with the letter “B” is a letter that I received from Mr McLaren a few weeks before 1 August 2003. From this letter I understood that Mr McLaren was not going to return my property that was still in his house or pay me the money he owed me.
The letter annexed marked “B” was given to Mr Radford for use at trial.
I understood that I was to be called as a witness and I was told that because I was a defence witness I was not allowed to go into the courtroom during the trial.
[35] The letter marked “B” referred to by Mrs Gruenwald is the letter described in para [6] above.
[36] In somewhat of a contrast to the above affidavit evidence, all that Mrs Gruenwald had to say about the television set and X-Box in her eight page statement to the police, made shortly after the incident, was:
Q.What other property did you take?
A.Just the bed base and one [mattress] oh and the TV and X-Box.
Q.Why did you take them?
A.They were in Lydia’s (daughter) name and he wasn’t paying for them.
[37] When the calibre of the evidence led by the Crown from the manager of Bond & Bond, Timaru is measured against the paucity of Mrs Gruenwald’s statement to the police, the vagueness of her now proposed evidence as to what she says she “believed” the appellant “would have known and believed”, and her situation of potential jeopardy if she had given evidence at the trial, renders defence counsel’s decision not to call her as a witness understandable. Mr Radford, who appeared as defence counsel at trial, was not able to provide an affidavit to the Court in the time available to him prior to the hearing of this appeal. He did however supply the Court with a letter, in which he advised as follows:
(a)We did not call Mrs Gruenwald because it seemed rather doubtful that she would be able to offer anything that might assist. In addition she was of course present and arguably would have been able to claim privilege from self incrimination. As to the letter, since the complainant accepted it, there seemed no point in running the risks of putting another witness in the stand to make a point that was already established.
(b)Lydia. I don’t know why she is persisting that she received an arrears notice. The evidence seemed absolutely clear that payments were up to date. Calling her to say she had a letter in the form of evidence to the contrary would seem like setting up a straw man.
[38] The “letter” referred to by Mr Radford is the threatening letter from the complainant, annexed to Mrs Gruenwald’s affidavit as exhibit “B” and set out in para [6] above.
[39] We have no difficulty in accepting Mr Radford’s explanation as to why he made the tactical decision that he did at trial. There is nothing before the Court to indicate that his decisions not to call upon either Lydia Gruenwald or Mrs Gruenwald as witnesses were the result of either a failure to follow instructions or amounted to a radical or fundamental error: R v S [1998] 2 NZLR 392 and R v Quinn [1991] 3 NZLR 146.
Undertaking given by trial counsel as to witness consistency
[40] Towards the end of the cross-examination of the complainant’s daughter by trial counsel she was asked about the footwear the appellant was wearing at the time of the incident. It was put to her by Mr Radford that the appellant had been wearing sneakers at the time and she agreed that his shoes could have been sneakers. This was in contrast with her evidence in chief where she had said that the appellant had been wearing hard black boots. Following this concession Mr Radford put the following to her:
You want to help your Dad in this case? Yes.
And you and your Dad have discussed what you were going to say? No we haven’t.
[41] During re-examination of the daughter the Crown prosecutor sought to refer her to the statement she had made to the police immediately after the incident.
Mr Radford objected to this. However, the Judge granted leave on the basis that no such allegation had first been put to the complainant when he was cross-examined and it ought to have been. The Crown prosecutor then referred the daughter to the relevant part of her statement and she confirmed that she had described the appellant as wearing hard black boots at the time her statement was made. The trial was then adjourned and in the absence of the jury the Crown sought leave to produce the whole of the daughter’s statement as an exhibit, on the grounds that the defence had raised an issue of recent fabrication involving collusion with the appellant. The trial Judge was not inclined to allow the statement to be produced as an exhibit, and took the view that the issue ought to be decided on the evidence as given in the witness box. He suggested that it be agreed as a fact that the daughter’s evidence in the witness box was broadly consistent with her statement to the police and there was no evidence that the complainant and his daughter had put their heads together.
Mr Radford agreed to state “clearly” to the jury in closing that the daughter had not resiled from her police statement. This exchange was recorded in a note taken by junior counsel for the defence.[42] When summing up to the jury the Judge referred to the matter in the following way:
[57] Mr Radford in his address acknowledged that what Christine told the police in her statement made the next morning is consistent with the evidence she gave in Court yesterday. There is an aspect which Mr Radford has highlighted and I will mention that in just a moment but he has acknowledged that Christine’s statement to the police made the next morning is broadly consistent with what she told you from the witness box yesterday and the Crown puts to you that that is really the answer to the suggestion that the two of them have got their heads together to concoct an account which is in some respects false or manufactured.
…
[70] I mentioned that I would say something about one aspect of Christine’s evidence which Mr Radford has focused upon. That is her evidence that the accused was wearing hard black boots. You know, ladies and gentlemen, that that was the description she gave in relation to the footwear sometime after about 10.30 the following day when she was being interviewed by the police. In her statement she described the footwear as being hard black boots, but in cross-examination during the course of her evidence she conceded that the footwear may have been black sneakers. Mr Radford submits to you that it is very odd in the light of that acknowledgement that they may have been black sneakers that were being worn by the accused, that it is very odd that she should have describe them as hard black boots and that you should reflect very carefully on that aspect of her evidence, in particular whether there may have been some influence there from her father in her description of them as hard black boots. That is a matter for you, ladies and gentlemen, to consider and to weight up.
[43] Mr Eaton’s criticism on appeal was that the trial Judge had extracted an undertaking from Mr Radford to concede in closing that the evidence of the complainant’s daughter was consistent with her statement to the police against an indication that, if he did not do so, the Judge would permit the Crown to produce the whole of the statement in evidence. Mr Eaton submitted that counsel should never have been asked to give such an undertaking and had little option in the circumstances but to reluctantly give the undertaking. He further submitted that the debate about this issue had been “played out in front of the jury” and this was prejudicial to the defence. He further submitted that, as a prior consistent statement, the daughter’s police statement was not properly admissible in any case.
[44] It is clear from the trial transcript and from junior counsel’s note however that the debate was not “played out in front of the jury”. Although Mr Radford’s objection to the Crown re-examining on the daughter’s police statement was the subject of a brief ruling in the presence of the jury, discussion on the issue of admissibility of the statement took place in the absence of the jury. It is also clear from a reading of junior counsel’s note that the Judge did not “extract” an undertaking from Mr Radford but simply observed that if the defence agreed that the daughter’s evidence was broadly consistent with her statement that much could be put before the jury as an agreed fact. His proposition was accepted and agreed to by Mr Radford.
[45] Finally, it is well established that a trial judge has a discretion to admit a prior consistent statement to demonstrate consistency, where there has been an allegation of recent fabrication.
Unfair and inappropriate cross-examination and closing submission
[46] In support of this final ground of appeal Mr Eaton submitted that the trial Judge had erred in allowing unfair and inappropriate cross-examination of the appellant by the Crown prosecutor, and allowing an unfair and inappropriate closing submission to be made by the prosecutor without correction. At issue was the following passage in the cross-examination of the appellant, in which reference was made to Mr Kennedy’s guilty pleas:
Q.Mr Kennedy has acknowledged his actions were wrong and pleaded guilty. Given now you conceded you weren’t thinking correct, I give you the opportunity to acknowledge that what you did was wrong?
A.What I did was wrong but I did what at the time I thought I was honestly entitled to do.
[47] Mr Eaton submitted that either Mr Radford or the trial Judge should have intervened when the above was put to the appellant and said the “trial Judge should have taken the opportunity to shut down Crown counsel and direct the jury that the plea was irrelevant”. He further submitted that the failure of the Judge to intervene appeared to have been regarded by Crown counsel as an endorsement of his cross-examination because at the very conclusion of his closing address the prosecutor had again emphasised the guilty pleas of the appellant’s co-accused as relevant. The conclusion to the prosecutor’s address was recorded at the end of the Judge’s summing up as a matter of concern raised by Mr Radford after the jury had retired to the jury room. The record is as follows:
In the absence of the jury counsel were asked if there are any matters arising. Mr Radford is concerned about Mr Gresson saying to the jury, at the very end of his address, that the verdicts ought to be the same as Kennedy and Hogg “who had properly pleaded guilty”.
I do not think I will revisit that in view of the directions I gave about the jury disregarding the guilty pleas entered by Messrs Hogg and Kennedy.
[48] The direction referred to by the trial Judge during his summing up was as follows:
Before I turn to summarise the Crown case and the defence case can I mention one other aspect of this case namely, the pleas of guilty entered by Christopher Kennedy and ultimately by Paul Hogg at the close of the Crown case. Those are matters that you should completely put out of your minds when you come to consider the case against Mr Gruenwald. Simply because Mr Kennedy and Mr Hogg pleaded guilty is of no relevance. That is not in any way evidence against Mr Gruenwald so please disregard the pleas entered by the other two accused.
[49] While the proper course would have been for the Crown prosecutor to have refrained from making reference to the guilty pleas of the appellant’s co-accused, either in cross-examination or in his closing address, the reality was that these pleas had been entered on arraignment at the commencement of the trial and at the close of the Crown’s case, so that the jury was well aware of them. The Judge dealt with the issue of those guilty pleas in the clear and emphatic direction he gave to the jury, as set out above. We agree with his decision not to revisit the topic by reiterating those directions after he had concluded his summing up. To have done so would only have served to highlight the fact of the pleas and discretion was the preferable course.
[50] Mr Eaton also levelled criticism at a question by the prosecutor to the appellant as to why he would not tell the truth about strangling the complainant while he was holding him down on the floor. This was also said to be unfair and that the trial Judge should have intervened to correct the situation because earlier the appellant had conceded that he may have strangled the complainant while holding him on the floor, although his acceptance of that was equivocal.
[51] The exhortation by the Crown prosecutor for the appellant to tell the truth about strangling the complainant, when he had already conceded that he may have been strangling the complainant, cannot be seen as anything more than a robust pressing of the appellant for a less equivocal response. There was nothing unduly oppressive about the questioning and no reason for the trial Judge to have intervened to prevent such a question.
Conclusion
[52] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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