Henare v Police
[2018] NZHC 65
•7 February 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2017-441-46 [2018] NZHC 65
MICHAEL CAMPBELL HENARE
v
NEW ZEALAND POLICE
Hearing: 7 February 2018 Appearances:
S Jefferson for Appellant
M Mitchell for CrownJudgment:
7 February 2018
ORAL JUDGMENT OF CHURCHMAN J
[1] This is an appeal by Michael Campbell Henare. Mr Henare was found guilty of burglary of a residential garage in Napier at a Judge alone trial before Judge A J Adeane at the Napier District Court on 5 September 2017.1 The charge was brought under s 231(1)(a) of the Crimes Act 1961. He was later sentenced to eight months of home detention with six months’ post-detention conditions and ordered to pay reparation of $2188.2
[2] Mr Henare now appeals his conviction on the basis that there was insufficient evidence to establish his guilt beyond reasonable doubt. Counsel for Mr Henare,
1 R v Henare [2017] NZDC 29004.
2 R v Henare [2017] NZDC 26514.
HENARE v NEW ZEALAND POLICE [2018] NZHC 65 [7 February 2018]
Mr Jefferson, submits that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.
[3] The Crown represented by Ms Mitchell opposes the appeal on the basis that faced with an incomplete alibi, DNA evidence placing Mr Henare at the scene during the relevant time period the burglary occurred and the absence of any plausible alternative explanation for his DNA being found on a cigarette butt located at the scene of the burglary, the conclusion of the District Court Judge was properly available to him on the evidence.
[4] By way of factual background the appellant, having recently returned from Australia, presented to mental health services with his mother on 4 May 2015. He was assessed and sent home only to return on 6 May 2015 when he was admitted to the crisis respite facility Te Whare Aronui in Hastings.
[5] The records of Te Whare Aronui show a note at 2.45pm on 7 May 2015 that the appellant had been out of the unit twice in the morning and that his health had deteriorated such that he was then placed under constant surveillance.
[6] On 8 May, the appellant attended a meeting with his family at the Napier Health Centre. As Ms Mitchell has noted in her oral submissions it is not clear exactly which family members attended the meeting neither is it clear who, if anyone, accompanied Mr Henare to and from the meeting. Te Whare Aronui’s notes record his return at 3pm on 8 May 2015. His condition further deteriorated. A compulsory inpatient treatment order was made and he was admitted to the mental health inpatient service, remaining in hospital until 27 May 2015.
[7] The complainant’s garage was burgled sometime between 4.30pm on Thursday
7 May 2015 and 2.20pm on Saturday 9 May 2015. The appellant’s DNA was on a cigarette butt located in the garage.
District Court decision
[8] There was only one piece of circumstantial evidence in issue in this case. A
tailor-made cigarette butt had been left on a bench in the garage and it had burnt out.
Photographs of the garage, including one of the bench with the cigarette butt on it were produced in the District Court hearing. The cigarette butt was examined by a scientist and DNA material was found which, on statistical analysis, was determined to render
it 6 x 1013 greater likelihood that this DNA originated from Mr Henare rather than
from another person selected at random from the general New Zealand population. The Judge found that this therefore constituted strong evidence to support the proposition that the DNA on the cigarette butt came from Mr Henare.
[9] Mr Henare’s defence was primarily one of alibi with evidence presented by
Mr Pearce, the psychiatric nurse responsible for Mr Henare’s care. His information regarding Mr Henare’s movements during the dates of 6 to 9 May 2015 came from mental health records.
[10] As noted in para [8] of the written submissions filed on behalf of the Police, under cross-examination, Mr Pearce accepted that he had no direct knowledge of the day to day procedures at the facility in question since he had last worked there in 2007. He acknowledged his evidence about Mr Henare’s movements was based solely off entry notes provided by the facility. He also acknowledged that those entry notes were not complete, for example, because they did not contain any record of Mr Henare leaving the facility on the morning of 8 May 2015, despite his own personal knowledge that Mr Henare did in fact do so to attend a medical appointment in Napier on that day.
[11] Mr Pearce also acknowledged that there was a gap of some three hours between the meeting at the Napier Health centre and Mr Henare’s return to the facility. Further
Mr Pearce acknowledged that Mr Henare had wandered off from the facility twice on
7 May 2015 after going outside for a cigarette.
[12] The Judge determined that the records of Te Whare Aronui had been imperfectly kept. While Mr Henare had been interviewed by a doctor at the Napier Health Centre on the morning of 8 May, there was no record of him being released to attend this medical meeting. The next record of his whereabouts was at 3.00pm, when he was readmitted. Although a decision had been made to place him under close
supervision, there is no evidence as to the quality of that supervision until the making of the compulsory treatment order and his return to Te Whare Aronui at 3.00pm 8 May.
[13] The Judge’s conclusion was that the evidence, therefore, pointed towards only one rational end conclusion: that Mr Henare was in that garage during the period within which the burglary was committed.
[14] In the absence of any evidence to the contrary, the Judge found that Mr Henare had been at least one of those who perpetrated the burglary.
Relevant law
[15] An appeal against conviction in a Judge-alone trial is governed by s 232(2)(b)
of the Criminal Procedure Act 2011. That provides:
232 First appeal court to determine appeal
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
[16] A “miscarriage of justice” is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that:3
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[17] An appeal against conviction proceeds by way of rehearing. While I must carefully consider all the matters that were before Judge Adeane, I must reach my own decision. If I conclude Judge Adeane was wrong, my decision must prevail.
[18] I must also be mindful of the limitations involved in not seeing or hearing directly from the witnesses,4 although I would note that in this case given the nature
3 Criminal Procedure Act 2011, s 232(4).
4 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].
of the trial that is not a matter of significance. I should only interfere with the factual findings of the trial judge “in exceptional circumstances”.5
Analysis
Alibi defence
[19] The appellant, through Mr Jefferson, submits firstly, that there was no basis on which to question the quality of the supervision at Te Whare Aronui. The fact that
Mr Henare had left the unit twice in the morning of 7 May 2015, before the offence was said to have been committed, was noted at 2.45pm and he was thereafter placed under constant surveillance. It was submitted that he only left the facility to attend an assessment in Napier.
[20] It was further submitted that there was little if any likelihood that during the afternoon and evening of 7 May, while under what was said to be constant surveillance, Mr Henare could have left Te Whare Aronui and not been missed. Furthermore, it was submitted that it was equally unlikely that during his absence from the facility, between attending the medical assessment and returning to the unit at
3.00pm, Mr Henare could have been involved in the burglary of the complainant’s garage which would have involved taking away a quantity of property.
[21] On the other hand, counsel for the Crown, Ms Mitchell, has submitted that
Mr Henare’s presence at Te Whare Aronui was not a complete alibi, given that there were clearly periods of time during the relevant date range when his whereabouts were unknown. The evidence of Mr Pearce could not exclude Mr Henare’s presence in the complainant’s garage at some time on 8 May.
[22] During the course of his oral argument Mr Jefferson acknowledged that the alibi put forward by Mr Pearce on behalf of Mr Henare was incomplete.
[23] I accept the submissions of the Crown. While Mr Henare had been placed under “constant surveillance” at Te Whare Aronui from 2.43pm on 7 May, there is no
5 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017] NZHC 3127 at [10].
record of his leaving the facility for his medical meeting on the morning of 8 May. We do not know at what time he left the facility and, while his family attended the meeting, there is nothing to indicate who, if anyone, accompanied him to and from the meeting. There is also a period of three hours between the completion of the meeting at noon and his recorded return to Te Whare Aronui which is unaccounted for. Therefore,
Mr Henare has not established an alibi for the relevant time period.
DNA evidence
[24] The appellant submits that the presence of Mr Henare’s DNA on the cigarette butt does not necessarily lead to only one rational end conclusion, that Mr Henare was in that garage during the period within which the burglary was committed.
Mr Jefferson submitted that cigarettes are often shared or discarded cigarettes picked up and smoked by others and therefore submitted that Mr Henare’s presence in the garage is not necessarily proved.
[25] Mr Jefferson acknowledged however, that the cigarette was not found in a public place, but on private property and inside the garage which was burgled. The Crown argued that while there may be other possible explanations for the presence of the cigarette in the garage, the statement of the scientist who examined the item concluded that there was “ a male profile” on this item. No reference is made in the report to more than one person’s DNA being located. The fact that Mr Henare’s DNA was the only genetic material located would indicate that the proffered alternative explanations are not plausible.
[26] Again, Mr Jefferson acknowledged in his oral submissions that the evidence of there being only one genetic profile found on the cigarette made alternative explanations improbable. I accept the Crown’s submission on this point. The senior constable who attended the scene of the burglary and examined the scene for forensic evidence noted in his written statement that the cigarette butt had residual ash attached to it, some of which fell away as he lifted it. This reinforced his belief that it was most likely lit when placed on the edge of the bench at the back of the garage. He also noted that the butt smelt of smoke so it could be inferred that the butt was not old.
[27] Furthermore, the complainant, upon entering the garage, noticed the cigarette butt and knew it was not hers or any of her friends as no one she knew smoked.
Mr Henare’s DNA was recovered from the cigarette butt. I conclude that the only plausible explanation for the cigarette being located on the bench in the complainant’s garage is exactly as the Judge found, namely that Mr Henare left it there.
[28] On the basis of the established evidence, there is sufficient evidence that
Mr Henare was present at the complainant’s garage which would indicate that he was involved with the burglary.
Mr Henare’s election not to give evidence
[29] Mr Jefferson submitted that there is a concern that the Judge held Mr Henare’s election not to give evidence against him, having mentioned this twice during the judgment at [4] and [9]. This concern is enhanced by the Judge’s reference to “the absence of any evidence to the contrary” to explain Mr Henare’s presence in the garage other than him being involved in the burglary.6
[30] Although Judge Adeane did mention twice during in his judgment that
Mr Henare had elected not to give evidence, as Mr Jefferson acknowledged, on both occasions Judge Adeane noted that he was not obliged to do so and the fact that he had chosen not to give evidence did not mean that he assumed any onus to prove anything. In my view, the Judge did not hold Mr Henare’s election not to give evidence against him.
Decision
[31] I am satisfied that Judge Adeane did not err in his assessment of the evidence so that a miscarriage of justice resulted. The lack of a complete alibi, combined with
the DNA evidence, is sufficient for this charge to have been made out.
6 R v Henare [2017] NZDC 29004 at [12].
[32] Accordingly, the appeal is dismissed.
Churchman J
Solicitors:
Crown Solicitor, Napier
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