Harvey v The Queen
[2011] NZCA 643
•14 December 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA76/2009 [2011] NZCA 643 |
| BETWEEN AARON JAMES HARVEY |
| AND THE QUEEN |
| Hearing: 8 November 2011 |
| Court: Ellen France, Miller and Asher JJ |
| Counsel: J H M Eaton for Appellant |
| Judgment: 14 December 2011 at 11.30 a.m. |
JUDGMENT OF THE COURT
A Order made extending the time for appeal.
B Leave to adduce new evidence is declined and the appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No
Introduction [1]
The factual background [2]
The appeal [10]
Developments in relation to the ballistics evidence[14]
The impact of the trial dynamics [35]
The effect of the new evidence [42]
Mr Boyce’s evidence [43]
The relevant principles [47]
Discussion [49]
Result [59]
Introduction
Carl MacDonald died in hospital on 15 September 2007 a few hours after having been shot through the stomach by a single .22 calibre bullet. The appellant was convicted after a jury trial of Mr MacDonald’s murder and was sentenced to life imprisonment by the trial Judge, Wild J.[1] He appeals against his conviction. The primary focus on the appeal is on the ballistics evidence at trial and on new ballistics evidence which, the appellant says, if led at trial might have led the jury to reach a different verdict.
The factual background
[1] R v Harvey HC Blenheim CRI-2007-006-1849, 19 December 2008.
The appellant was a member of the Lone Legion Motorcycle Club (the Lone Legion). On 15 September 2007 he, along with other members of the Lone Legion, was involved in a confrontation outside their clubrooms in Blenheim with a number of local residents and their supporters. The appellant and others eventually retreated inside the fortifications around their clubrooms. The confrontation continued with bricks, rocks and abuse exchanged between the two groups. Soon after the appellant and the others had gone inside, Mr MacDonald, one of those outside in the street, was shot and fatally wounded.
The events leading up to Mr MacDonald’s death were captured on the video surveillance system installed in the Lone Legion clubrooms. The video footage showed the appellant presenting a cut-down .22 calibre rifle through the grille on the gate. The appellant then took the rifle down and appeared to be trying to un-jam it. Eventually he is seen to put the rifle back up to the grille and fire it down the street. At the same time, footage from one of the other (of four) cameras appears to show Mr MacDonald coming along the footpath, stopping and doubling over as if hit.
The police arrived at the clubrooms very shortly after the shooting. They conducted an extensive search. The appellant’s rifle, a sawn-off .22 calibre Ruger, was found hidden in a wall cavity. Two live rounds were jammed in, one partly chambered, the other protruding from the ejector. No other firearm was located. Nor was any cartridge not associated with the Ruger found.
The appellant when spoken to by the police admitted to the shooting.
The appellant was charged with murder, along with three others charged as parties. The Crown case was that the appellant fired the fatal shot but that the other three encouraged him. The Crown relied on eye-witness accounts of the circumstances, the video footage, and tool marking evidence as to the proposition the bullet was fired by the appellant.
The appellant ran two defences at trial. He accepted that he had fired a shot but said, first, that the Crown had not proved beyond reasonable doubt that there was not a second, fatal, shot fired by another man from an upstairs window in the clubrooms. The defence case relied in part on expert evidence about the likely trajectory of the bullet fired by the appellant. The general import of this evidence was that it was unlikely the fatal shot was fired from the gate given the likely trajectories of a bullet shot from that location. This defence also drew on the evidence of three Crown witnesses who said that they heard two shots. (Ten other Crown witnesses said they heard a single shot.) Finally, the defence also relied on the fact the Crown could not completely exclude the possibility the fatal bullet had been fired from a second rifle.
Secondly, the defence said that if the appellant’s shot had killed Mr MacDonald, the killing was manslaughter because the shot was simply a warning shot. This defence was based in part on evidence from one of those out in the street who referred to a “fellow pop[ping] up with a rifle, just an air rifle, just to scare us” whilst warning them off. In addition, this defence relied on evidence that the appellant’s gun was shooting high and slightly wide.
The other three defendants were acquitted.
The appeal
The grounds of appeal can be dealt with by considering the two key propositions which can be drawn from the appellant’s submissions.
The first proposition is that the way in which the Crown expert ballistics evidence emerged at trial altered the trial dynamics to such an extent as to give rise to a miscarriage. It is argued that manslaughter was treated as the less important defence through the trial, with the primary focus being on the defence that there was a second shooter. The effect of the Crown’s expert ballistics evidence, as it finally emerged, was to effectively rule out the second shooter. This, it was argued, meant that there was a miscarriage of justice because the trial was run on the basis that manslaughter was the secondary defence, when all the effort should have gone into the manslaughter defence.
The second proposition relates to the defence based on the fatal shot being fired by a second shooter using another firearm. The argument is that, given more time, the defence could have called expert ballistics evidence to rebut that of the relevant Crown witnesses. The trial was therefore unfair. In this context, the appellant seeks leave to adduce new evidence from Philip Boyce about the tool marks on the bullet that killed Mr MacDonald. This part of the appeal also requires consideration of Wild J’s refusal to abort the trial part way through the trial.[2] As an alternative, the appellant says that if the Judge was right not to abort the trial, trial counsel error has given rise to a miscarriage.
[2]R v Harvey HC Blenheim CRI-2007-006-1849, trial ruling (no 5), 2 October 2008; see also trial ruling (no 4), 1 October 2008.
In order to address these propositions we need to set out in more detail how matters developed prior to and throughout the course of the trial with particular reference to the ballistics evidence.
Developments in relation to the ballistics evidence
The description of the way in which events unfolded which follows is largely taken from Wild J’s ruling on his decision not to abort the trial.[3] As the Judge explained, initially the Crown retained Gerhard Wevers, a forensic scientist with the ESR with special expertise in ballistics. Mr Wevers gave evidence at depositions. The Judge summarised his deposition evidence as follows:[4]
· First, that the fired cartridge case found by the Police lying on the concrete inside the Lone Legion gate came from the Ruger.
· Secondly, that differences between the fatal bullet and the rounds test fired by Mr Wevers from the Ruger suggested either modification of the barrel post fatal shot, or that another firearm had been used to shoot Mr MacDonald.
[3] Trial ruling (no 4), 1 October 2008.
[4] Trial ruling (no 5) at [15].
Depositions occurred in early February 2008. Subsequently, the Crown obtained advice from Sergeant Gerard Dutton, a ballistics expert with the Tasmanian police. Sergeant Dutton examined and tested the relevant exhibits in mid-June 2008. Sergeant Dutton reported to the Crown on 24 June 2008 and it was accepted that his report was promptly disclosed to the defence. Sergeant Dutton’s complete working file was also subsequently disclosed to the defence, on or about 30 July 2008.
The Judge records that, in the meantime, the defence had retained Nicholas Powell, an Auckland based forensic scientist, to provide advice on the ballistics aspects of the trial.[5] The Judge noted that he used the word “ballistics” in the broad sense encompassing tool and rifling marks, and the science of the flight of the bullet once it leaves the muzzle of the firearm, including its trajectory.[6]
[5] See trial ruling (no 3), 29 September 2008, in which Wild J ruled that Mr Powell qualified as an expert witness.
[6]Trial ruling (no 5) at [17]. Wild J explained tool marks meant the marks made on a bullet and/or on its cartridge case by the gun’s loading or firing mechanism. Rifling marks, he said, are those made on the bullet as it is fired down the barrel.
Sergeant Dutton’s report became his statement of evidence provided to the defence for the trial. Wild J summarised the statement in this way:[7]
[7] Trial ruling (no 5) at [18].
· The Butler Creek magazine, when fitted to the Ruger rifle and loaded with two or more rounds, often jammed. Sergeant Dutton then explained why that was occurring.
· The fired cartridge case, that is the case found by the Police inside the Lone Legion gate, was formerly discharged in the Ruger rifle.
· The fatal and test fired bullets had similar class rifling characteristics.
· They also had some similar individual rifling characteristics, but insufficient for a conclusive opinion, i.e. for a conclusive match or, conversely, a conclusive non-match.
· The fatal and test fired bullets had a prominent double scratch, more than would be expected from a Ruger barrel in good condition such as the exhibited Ruger rifle was. The most likely cause was a tiny burr at the muzzle where the barrel had been sawn off.
· The fatal bullet had two unusual marks:
-Firstly, an impressed linear mark across the hollow point on the nose of the bullet. That was repeated on test fires and was caused by a ridge on the Butler Creek magazine. But this mark on the fatal bullet was of poor quality because of the impact damage to the nose of that bullet.
-Striated marks at 12 o’clock and 6 o’clock, i.e. top and bottom, on the test fires, caused by the nose up attitude when rounds were chambered from the Butler Creek magazine. The same 12 o’clock mark could be positively identified on the fatal bullet. The 6 o’clock mark could not be, because it was in an area damaged with bone chips adhering.
Conclusion: the fatal bullet was therefore fitted to a cartridge case that had been fed into the chamber of Ruger.
As Wild J noted, Sergeant Dutton then concluded:[8]
The prominent double striated mark along the bullet, the linear nose impression and the identifiable chamber mouth feed mark at 12 o’clock are at the same orientation and relative position on the exhibit bullet as the bullets I prepared for comparison using the sawn off Ruger rifle and Butler Creek magazine.
[8] Trial ruling (no 5) at [19].
The trial began on 22 September 2008. The Crown opened on the basis that it would be calling Sergeant Dutton as its ballistics expert. The Judge declined a defence application to direct the Crown to call Mr Wevers.[9]
[9] Trial ruling (no 1), 22 September 2008.
The Crown ultimately, it appears, yielded to defence pressure to call Mr Wevers and he commenced giving his evidence on 29 September.
As Wild J noted, Mr Wevers’ evidence in chief and in cross-examination did not materially differ from his deposition. The two key points were therefore, first, that the fired cartridge case found inside the Lone Legion gate had been fired in the Ruger. Secondly, the differences between the fatal bullet and rounds subsequently test fired by Mr Wevers from the Ruger suggested either modification of the barrel of the firearm or that another firearm had been used to shoot Mr MacDonald. In his evidence in chief, Mr Wevers said that given the differences in microscopic detail as seen between the fatal bullet and bullets test fired in the Ruger, he was “unable to exclude the possibility” that another firearm with the same rifling characteristics as the Ruger was used to shoot Mr MacDonald.
In cross-examination, he was tested about what might be involved in modification of the firearm. He accepted that one possible means of modification, cutting down the barrel after the shooting, was unlikely given the time between the incident and the exhibiting of the rifle. The other possibility of modification of the firearm was debris in the barrel. He was further cross-examined about possible types of debris, namely corrosion, dust, defects and burrs. There were no obvious signs of corrosion. As to the possibility of a burr, Mr Wevers explained that when a firearm is cut, small burrs can result from the cutting action across the muzzle. Some of these can be very fine and possibly even removed after a bullet has passed through the muzzle.
In re-examination, as Wild J said, Mr Wevers perhaps departed from his earlier evidence to an extent, in the exchange which we now reproduce:
QWhat’s the sort of chances of being able to replicate that feature of double stria in another firearm?
AIt’d be very rare, I would’ve thought because it would have to appear in exactly the same landmark with a firearm of exactly the same rifling characteristics.
QHave two present at the same time, able to impart those same features, double stria?
AIt’s very unlikely.
...
A(In answer to a question from the Bench) Using the alignment mark I can look at the two test fired projectiles side by side. Looking at each landmark groove impression to see what kind of correspondence we see between test fired bullets. In this case the most prominent mark was the deep stria in what I described as landmark 1 so I just called it landmark 1 because it was a good orientation point to start off with.
Q(Crown Prosecutor:) And that same landmark on corresponding test fires what did you observe?
AThat deep stria occurred in the same position on all the test fired bullets, indicating it was part of the barrel and not something that was moveable within the barrel. So for another firearm to have that same mark, it would have to occur, have the same defect, in exactly the same position as the Ruger rifle.
QIs that a common occurrence?
ATo see a defect like that?
QLeaving those type of marks?
ANot a prominent feature like that no.
In the course of Mr Wevers’ evidence, the defence disclosed for the first time to the Crown Mr Powell’s identity and qualifications, although not the substance of his proposed evidence. That led to a voir dire about Mr Powell’s expertise. The Judge ruled that Mr Powell could give evidence as an expert on ballistics.[10] In the voir dire, Mr Powell said that his evidence would not be about tool marks but there was no restriction placed on the scope of Mr Powell’s evidence.
[10] Trial ruling (no 3), 29 September 2008.
Sergeant Dutton began giving his evidence on 30 September 2008. He had not completed his evidence when the Court rose that day. The following day, the prosecutor informed the Judge in the absence of the jury that Sergeant Dutton was to say that the probability of the combination of tool mark and ballistic similarities he had found upon examination and testing in a rifle other than the Ruger was so remote as to be impossible. At that point, all defence counsel asked the Judge to abort the trial and discharge the jury. The Judge declined to do so.[11]
[11] Trial ruling (no 4), 1 October 2008.
Sergeant Dutton resumed giving his evidence in the early afternoon of 1 October 2008. Apart from some additional explanation and elaboration, his evidence followed his statement. Sergeant Dutton then said this:
So I have to clarify something further with you. I mentioned earlier that I could not identify the bore marks on the fatal bullet to the exhibit rifle. However there was the prominent double striated mark and in a comparison around the circumference of my test and exhibit bullet I could find consistencies in the striations. That was when my test and exhibit bullet were indexed using that double striated mark. If I turned one of those bullets, rotated one [one-sixth] of its revolution and then aligned the next land and groove impressions and compared those marks I could find no consistencies. Similarly, if I then turned it again and worked my way around in all possible matching positions except for that point where the prominent double striated part was present and aligned there were no consistencies. [B]ecause I couldn’t positively identify the bullet using bore marks I have to ask myself the question could another firearm be responsible. Taking into consideration the totality of the evidence in the bullet, not just bore marks, that is, the crease in the nose, the identifiable mark on the ogive which proved it was in that chamber, I have to ask myself the possibility of another firearm being responsible.
Sergeant Dutton then dealt with what would be necessary for a second firearm to be the weapon used to shoot Mr MacDonald. He said:
If another firearm was responsible firstly that cartridge would [have] had to have been chambered at one stage in the exhibit rifle using the Butler Creek magazine then withdrawn, placed in a separate firearm with identical class characteristics as the Ruger and then fired and that particular firearm would have to have a very bland bore that marked the bullet in the same fashion and it would have to have a defect leaving a prominent double striated mark in the exact same position in that land impression. In addition to that that cartridge being chambered in that second firearm would have to be orientated correctly in a 360 degree sense so that the various other marks during orientation [being orientated]. My opinion is that the possibility of this happening is extremely remote as to be virtually impossible.
It will be seen that the factor which rendered Sergeant Dutton’s opinion so conclusive was the orientation of the cartridge in the Ruger when coupled with the double striation.
The defence declined to cross-examine Sergeant Dutton at this point. They sought more time and then renewed the application to abort the trial. Three reasons were advanced in support of the application. First, the defence said that they had been taken by surprise by Sergeant Dutton’s evidence. Secondly, armed with the knowledge that the evidence of a ballistics expert is that expert’s subjective assessment and not a statistically based one, the defence said they may be able to obtain an expert opinion differing from that expressed by Sergeant Dutton. Finally, it was submitted that the other three defendants had joined in a defence that had become untenable.
The Crown in response suggested that if the defence had engaged a proper expert initially, this difficulty would not have occurred. The Crown prosecutor acknowledged “some unfairness – some embarrassment” to the defence, particularly given counsel for the appellant’s acknowledgement that the defence did not have a proper expert.[12]
[12] Trial ruling (no 5) at [30].
In dismissing the application, Wild J rejected the submission that the defence had been taken by surprise. His Honour said that on a fair layman’s reading of Sergeant Dutton’s statement as disclosed before trial, the evidence given at trial would have been apparent and comprised little more than a drawing together of the material in the statement.
The second ground was not seen as adding anything to the first. As to the third, the Judge said that the “two rifles two shots” defence and the party defence were not alternatives. The latter remained fully open to the other three defendants even if the former was not pursued.
Finally, the Judge noted that the first two grounds on which the accused sought to abort the trial could only be successful appeal grounds where the accused could demonstrate to this Court that an expert opinion contrary to that of Sergeant Dutton would have been available. The Judge said he was not attracted to the request to abort the trial against the prospect, “entirely untested and therefore unknown”, that contrary expert opinion would have been available.[13]
[13] Trial ruling (no 5) at [36].
The trial continued but other witnesses were interposed prior to the recall of Sergeant Dutton for cross-examination on 2 October 2008. In cross-examination, Sergeant Dutton accepted that he could not say that the bullet was definitely fired from the appellant’s rifle but he saw the possibility of another gun being involved, on the totality of evidence, as remote and impracticable.
The impact of the trial dynamics
The gravamen of the submission on this point relates to the effect of developments at trial on the alternative manslaughter defence. The argument is that the defence was put off the scent by Mr Wevers’ evidence, which left open the possibility of a second shooter using a second firearm. Mr Eaton says that the case would have been run differently if counsel had been aware of the way in which the expert ballistics evidence would ultimately emerge. The end result, it is submitted, has prejudiced the defence of manslaughter.
As an initial comment, we observe that there are some difficulties with the assertion that the defence would have run the case differently. Mr Eaton based this argument in part on the notion that this case was different from those where a defendant knows he or she has committed the offending alleged; that is, the appellant assumed he was responsible but at the point he made this admission he was unaware of the ballistics evidence. However, the appellant had fired the gun and the various actions were captured on video. The appellant knew the police had not found another gun. And, if there was another gun, the circumstances suggest the appellant would likely have known of its existence. It is certainly not suggested there was any other evidence that could have been advanced to support the manslaughter defence. The available evidence was before the jury.
It does appear that matters seemed to have gathered momentum at trial somewhat. Sergeant Dutton could have expressed his opinion in a less trenchant manner. As the trial developed, that may have been the better course. That said, we do not consider Sergeant Dutton overstepped the mark. The point made by Mr Pike for the Crown in this respect is important. As he notes, Sergeant Dutton was not talking about matching general microscopic striae, which some commentators have seen as problematic.[14] Rather, these double striae were deeper and were reproducible on test-firing at, and only at, the identified cartridge orientation in the firearm chambers.
[14]Adina Schwartz “Challenging Firearms and Toolmark Identification” (2008) The Champion, at 10 and 44.
We turn then to the key argument, namely, that the focus on the ballistics evidence and so on the second shooter theory has prejudiced the alternative manslaughter defence. We see no reason for concern in this respect. It was perfectly possible to run the two defences together. In relation to the manslaughter defence, it appears that counsel for the defence made all of the points that could be made. The defence emphasised the warnings that Thomas MacDonald said he heard being shouted out from the Lone Legion clubrooms and the inconsistency between those warnings and a murderous intent. In addition, the defence referred to the evidence of the way in which the Ruger was firing the effect of which was to suggest that if the appellant had aimed at the deceased at the range he was at, the shot would have gone over his head. The Judge summarised the two way the two defences sat together in this way:
[79] To summarise, the defence says that the Crown has not excluded the reasonable possibility that the fatal shot was fired [by a second man] with another firearm, so that [the appellant] is not guilty of murder or manslaughter, and if you don’t accept that and find that [the appellant] did fire the fatal shot, then the defence says that it could only be manslaughter.
The Judge directed the jury properly on both defences. It is speculative to suggest that the jury ignored those directions.
We also take some comfort from the fact that the defence of the other three defendants was not prejudiced in the way suggested. They too all embraced the second shooter scenario but were acquitted. Presumably, this was on the basis of their other defences.
Finally, we need to address an associated complaint about Wild J’s summary of the Crown and defence positions at the outset of the summing up. At that point, the Judge referred only to the second shooter theory and not to the manslaughter defence. However, the Judge puts that defence squarely in the body of the summing up and there is no complaint as to the fairness or adequacy of that summary. There is no merit in this part of the appeal.
The effect of the new evidence
We turn then to the second part of the appeal which is directed to the defence based on the possible presence of a second shooter using a second firearm.
Mr Boyce’s evidence
As we have indicated, the new evidence comes from Mr Boyce, who is a self-employed forensic firearms consultant. Mr Boyce has examined various items, including the rifle, the spent cartridge and the fatal bullet. His evidence is in the form of two statements. The second of these statements responds to affidavit evidence which the Crown seeks leave to adduce from Mr Wevers and Sergeant Dutton.
Mr Boyce agrees with Mr Wevers and Sergeant Dutton that it is not possible to match the bullet to the rifle in the usual way relying on matters such as lands and grooves on the bullet against the weapon’s rifling marks.
Mr Boyce also agrees with Mr Wevers and Sergeant Dutton that the indications are that the fatal bullet has been chambered at some point in the Ruger.
He says it is “quite possible” that the bullet was fired from the Ruger. However, his conclusion is there was not enough detail available “to exclude or include the possibility that this bullet had been discharged from another firearm with [the] same rifling characteristics”. In his second statement, Mr Boyce puts it in this way:
I cannot say that [Sergeant] Dutton’s opinion is unfounded, nevertheless having conducted my testing, and purely from a ballistics and tool marking analysis the possibility that another firearm had been used does exist and this cannot be totally disregarded (however remote this possibility is).
Therefore the possibility that another firearm with the same rifling characteristics had been used cannot be completely excluded.
The relevant principles
There is no dispute as to the principles applicable to the admission of the new evidence. An appellant who wishes the Court to consider new evidence has to demonstrate that the evidence is sufficiently fresh and sufficiently credible.[15] Ultimately, the discretion as to whether to admit new evidence “must be exercised in whatever manner the Court considers will further the overall interests of justice”.[16] Finally, as this Court in R v Bain said:
[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have lead the jury to return a verdict of not guilty.
[15]Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25] per Blanchard J for Elias CJ, Blanchard, Tipping and McGrath JJ, citing R v Bain [2004] 1 NZLR 638 (CA) and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
[16] R v Bain [2004] 1 NZLR 638 (CA) at [23].
Here, because of the alternative thread based on alleged trial counsel error, it is also helpful to note this passage from the judgment for Gault J (for Gault, Keith and Blanchard JJ) in Sungsuwanv R:[17]
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
Discussion
[17] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
The argument is that, with more time, the appellant could have called Mr Boyce to give evidence relevant to the defence based on the possibility of a second shooter using a second firearm and that would have made a difference to the verdict. Accordingly, it is submitted that the Judge was wrong to decline to abort the trial. Alternatively, it is argued that counsel erred in their assessment of Sergeant Dutton’s statement. On this approach, the requirement for the evidence to be fresh need not be met.
The argument based on counsel error relies solely on the Judge’s comments that counsel should have worked out the impact of Sergeant Dutton’s statement. There is accordingly no evidence from either the appellant or trial counsel about relevant trial decisions made by counsel. The defence had expert assistance from Mr Powell. The Crown’s ballistics evidence must have been referred by the accused to Mr Powell. That is apparent from Mr Powell’s evidence in the voir dire. He said that he did not challenge Sergeant Dutton’s evidence that the spent cartridge case had been fired from the Ruger. Nor did he challenge Sergeant Dutton’s statement that the fatal bullet had been chambered in the Ruger. Mr Powell’s evidence was directed at an analysis of the bullet’s likely trajectory. The defence can be seen as having made a tactical decision as to how to meet the ballistics challenge, namely, by following the trajectory analysis.
Mr Eaton relies in this respect on the Judge’s view that counsel should have worked out the impact of Sergeant Dutton’s statement. That does not necessarily detract from the fact a particular tactical course was adopted. That said, the high point of Mr Eaton’s argument is that the strength of Sergeant Dutton’s written statement was misjudged and because of that the Judge was wrong to conclude that the trial could continue.
We are satisfied that what has occurred, even if characterised as counsel error, has not given rise to a miscarriage. That is because, on analysis, it cannot be said that Mr Boyce’s evidence might reasonably have led to a return of a verdict of not guilty.
The only point of difference between Mr Boyce and the two Crown experts is one as to degree. None of the experts exclude the possibility that the bullet had been fired from a different gun. Sergeant Dutton certainly puts that possibility at the extreme end of the scale. However, that is a distinction without a great deal of difference given Mr Boyce agrees the double striae are present and that this “indeed could be used as an indexing point”. Further, Mr Boyce does not address the evidence of Sergeant Dutton at trial that the double striae are reproduced at, and only at, the identified cartridge orientation in the firearm chambers.
We should also at this stage address the submission that the Judge gave insufficient weight to fair trial rights and proceeded on the basis that errors could be corrected on appeal. We consider that mischaracterises the Judge’s approach, which was, rather, to make the obvious point that fair trial rights did not appear to be an issue given no other analysis of this point was advanced by the defence.
The end point is that the new evidence is not cogent. That outcome is perhaps not surprising given the characteristics and use which any other rifle fired at the scene would have to possess. As Mr Pike for the Crown explains it, the characteristics are as follows:
(a)a barrel anomaly that produced the double striae at the same orientation as the Ruger;
(b)chambering at the same orientation as the bullet fired from the Ruger due to the constant alignment of the tool mark on the nose of the [fatal bullet] and the double striae;
(c)the bore characteristics of the second rifle would have to be identical as to the class characteristics of the Ruger, manufactured at about the same time using the same tooling, or rifles from other manufacturers using the same rifling class characteristics; and
(d)the second rifle chambering and firing did not leave any distinctive traces such that a bullet discharged from that rifle could not be distinguished from a bullet fired from the Ruger.
In addition of course, there is the coincidence seen on the video footage between the discharge of the appellant’s firearm and the impact on the deceased. There is also the absence of any other firearm or cartridge case associated with the upstairs window.
Finally, we need to address the appellant’s criticisms of the directions in the summing up on the expert witnesses. That criticism relates to the following passage:
[41] When you come to assess the evidence of the expert witnesses, may I suggest that you consider:
·Their qualifications and their experience.
·The clarity and the authority of the opinion or explanation or demonstration that they gave you in the course of their evidence.
·The extent to which the views the expert expressed were challenged in cross-examination or conversely the extent to which they were not challenged. And, of course, if they were challenged the outcome of that challenge.
Mr Eaton says that in the second bullet point the Judge was effectively endorsing Sergeant Dutton’s evidence given he apparently presented as an eloquent and forceful witness. We see nothing in this point. The Judge made it clear this was but one matter the jury could consider in a context where they were directed that they were the triers of fact and that this was not trial by the experts. In addition, Wild J later in the summing up discussed at some length the points made by the defence in relation to the expert evidence.
Result
For these reasons, leave to adduce the new evidence is declined and the appeal is dismissed. The notice of appeal was filed out of time but the delay is explained. An order is made extending the time for appealing.
Solicitors:
Crown Law Office, Wellington for Respondent
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