Lawson v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/2013
[2014] NZCA 463

BETWEEN	RAWIRI DAVID LAWSON Appellant
AND	THE QUEEN Respondent

Hearing:	6 May 2014 (further submissions received 18 August 2014)
Court:	O’Regan P, Courtney and Clifford JJ
Counsel:	T Ellis for Appellant K A L Bicknell for Respondent
Judgment:	22 September 2014 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

The appellant was convicted on charges of aggravated robbery and kidnapping after a High Court trial in Wellington before Mallon J and a jury. Mallon J sentenced the appellant to a term of imprisonment of eight years, with a minimum period of imprisonment of four years, nine months.[1] He was given a first warning under s 86B of the Sentencing Act 2002. The appellant appeals against conviction, but not against sentence.

Issues on appeal

[1]R v Lawson [2013] NZHC 1150.

The issues on appeal are framed by the grounds of appeal pursued in the hearing before us, which differed in some respects from those appearing in the notice of appeal. The six grounds of appeal before us were:
(a)Breach of fair trial rights because the appellant was stopped by a Department of Corrections officer from passing a note to his trial counsel during the closing address of the prosecutor.
(b)Wrongful admission of propensity evidence, pursuant to a decision of this Court on a pre-trial appeal.[2]
(c)Unfairness resulting from the Crown’s position in its closing address differing from that in its opening.
(d)Failure by the trial Judge to direct the jury adequately about the defence case that the culprit was actually another person.
(e)Unfairness resulting from the late withdrawal of one of the counts in the indictment, which inhibited the raising of defences by the appellant at trial.
(f)Unreasonable verdict.
[2]R v Lawson [2012] NZCA 540 [pre-trial decision].
We will deal with each of these grounds in turn. Before doing so we set out a brief summary of the facts.

Factual summary

The incident leading to the charges occurred in the early hours of the morning on 16 September 2011. At around 1.40 am an intruder smashed a window on the second floor of the Countdown Supermarket at Coastlands Shopping Mall in Paraparaumu. The broken window gave access to the office of the manager. An alarm was activated and staff investigated, but the intruder was not detected at the time.
Around 5.30 am on the same day, the supermarket’s cash officer arrived at work. She deactivated the alarm and went into the cash office to audit the money in the safe. The intruder then entered building through the broken window armed with a knife and wearing a stocking over his face. As the cash officer tried to leave, the intruder grabbed her and returned her to the cash office. He demanded that she open the safe. She did as instructed and the intruder took $18,070 in cash. He then took the cash officer to the manager’s office and ordered her to lie on the ground. He told her to stay there and said that his mate was watching her. He then exited via the broken window.
An unsmoked roll-your-own cigarette with the appellant’s DNA was found on the roof of the supermarket under the broken window shortly afterwards.

Ground one: passing notes to counsel

At the hearing of the appeal, counsel for the appellant, Mr Ellis, argued that there had been a miscarriage of justice because the appellant was prevented by a Corrections officer from passing a note to his trial counsel, Mr Bott, during the closing address of the Crown prosecutor, Mr Burston. This was said to have prevented the appellant from prompting Mr Bott to make a submission in his closing address countering what had been said by the prosecutor.

Evidence

On 16 May 2014, we issued a minute pointing out that the only evidence we had in relation to this incident was a letter the appellant had written to the trial Judge for the sentencing hearing, in which the allegation was made. We did not consider that the Court could address the point adequately without evidence of what happened and what impact it had had. We directed the appellant to file an affidavit setting out exactly what occurred with all relevant details.
The affidavit was filed on 25 July 2014. In it, the appellant confirmed that he had tried to pass a note to his counsel during the prosecutor’s closing address and had been told by the Corrections officer that this was no longer permitted. He had been permitted to do so and had passed notes to his counsel at earlier stages of the trial, perhaps 10 or 15 times.
Initially, counsel for the Crown, Ms Bicknell, indicated that the Corrections officers on duty during the trial could not be identified and that no affidavit could be filed in response to that of the appellant. However, she subsequently advised the Court that the Corrections officers on duty had been identified and one of them would swear an affidavit. That affidavit was sworn on 13 August 2014 and filed in this Court on the same day. In the affidavit, the Corrections officer confirmed that she and a colleague were the assigned officers for the duration of the appellant’s trial. She produced as exhibits copies of entries in the High Court trial diary recording that the appellant had passed notes to his counsel on a number of occasions during the trial. But the trial diary does not record any attempt by the appellant to pass notes to his counsel on 16 November 2012, which was the last day of the trial on which closing addresses were made. The Corrections officer says in her affidavit that she does not recall stopping the appellant from passing notes to his counsel on that day.
The conflict of evidence cannot be resolved without cross-examination, but the reality is that neither the appellant nor the Corrections officer has a clear memory of what happened. We have not received evidence from the other Corrections officer or other officers on duty on the relevant day. In these circumstances, we propose to focus on what the appellant said occurred, which is not directly contradicted by the Corrections officer, and assess its potential impact on the trial.

Use of dock

Before we do so, we mention that Mr Ellis expanded this ground of appeal to include the fact that the appellant was in the dock at the relevant time, rather than seated next to his counsel. He referred us to a similar submission he made in R v Jefferies.[3] In R v Jefferies, this Court drew a distinction between the situation before it and that in a case cited to it, People v Zammora, because in the latter case the use of the dock had been linked to a restriction imposed during the trial that caused problems for the accused person in instructing counsel.[4] As he did in R v Jefferies, Mr Ellis pointed to the fact that a dock is no longer used in the United States’ jurisdictions, and argued that the use of the dock prevented a fair trial, contrary to s 25(a), (c) and (e) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). He cited academic commentaries to that effect.[5]
[3]R v Jefferies [2012] NZCA 608.
[4]People v Zammora 152 P 2d 180 (Cal Dist Ct App 1944).
[5]Lynal E Doerksen “Out of the Dock and into the Bar: An Examination of the History and Use of the Prisoner’s Dock” (1990) 32 CLQ 478; Linda Mulcahy Legal Architecture: Justice, Due Process and the Place of Law (Routledge, New York, 2011); and David Tait “Glass Cages in the Dock?: Presenting the Defendant to the Jury” (2011) 86 Chi-Kent L Rev 467.
We do not accept that the appearance of a defendant in a dock in a criminal trial makes the trial unfair. We do not think R v Jefferies advances matters: it was a case where special measures were taken to accommodate the defendant because of special needs. We propose to focus on the issues arising in the context of the appellant’s trial, assuming he was prevented from passing a note to this counsel during the prosecutor’s closing address.

Impact on trial

Mr Lawson describes in his affidavit the matters raised in the prosecutor’s closing address that caused him to write the note that he attempted to pass to Mr Bott. He also refers to other matters that he would have raised if he had been permitted to do so. We will deal with these in turn.

(a) The cigarette

The matters that prompted the appellant to write a note to Mr Bott concerned what Mr Burston said in his closing address about the unsmoked roll-your-own cigarette found on the roof of the supermarket under the broken window. Mr Burston said the following:
Now at some stage before 5:44 the robber’s gone back to take the glass out because that’s the point of entry. And I would suggest that that would be after 4 am when the bakers arrived and unset the perimeter alarm.
…
So the Crown says to you look at the photographs. Isn’t the reasonable explanation for that cigarette being found amongst the glass from the broken window simply that the robber made a mistake. The cigarette dropped there while the robber was getting ready to commit the robbery. We don’t know what clothing he was wearing at the time. We do know he is likely to have been carrying something to use to smash the window. The white mark on the window from the initial force that was applied that’s caused the glass to shatter in across the desk. So at some point he’s either been carrying something like a hammer or whatever. We don’t know how the robber was dressed at the point that the cigarette fell out. You can’t say, well we can see him in the photograph at 5:46 or whatever it was and just peering into that photograph it looks like he’s got a button down shirt so the cigarette couldn’t have fallen out. We just don’t know. What we know is that the cigarette has fallen on that roof. A roll your own cigarette and the Crown says to you, the commonsense, straightforward explanation is that the robber’s dropped it there in the course of taking the glass out and getting ready to go through the window.
The appellant says that he thought at the time that the prosecutor had got these matters wrong. He said it was difficult for him to remember precisely what he might have said in the note to Mr Bott if he had been allowed to pass a note to him. He attributes this to the time that has passed between the last day of the trial and the date on which the affidavit was sworn. However, he said the message in the note “would have included attempting to correct a number of nuances that Mr Burston was putting to the jury”.
The defence case was that someone had placed the unsmoked cigarette with the appellant’s DNA on the roof of the supermarket rather than the cigarette falling out of the appellant’s clothing as the Crown prosecutor suggested. Mr Burston dealt with that in his closing address as follows:
The defence is that a sneaky offender, Mr Bott’s words, has left the cigarette there and placed glass over it. The defence theory seems to be that some clever person planning a robbery has tricked Mr Lawson into rolling a cigarette for them or got one of their associates, the girlfriend of Shaun – what was that questioning about – to roll a cigarette in this cunning, sneaky way with the intention of later using that cigarette to frame Mr Lawson for the robbery. But the evidence is that Mr Hakaraia didn’t know Mr Lawson and the defence theory is that Mr Hakaraia, the Maori cleaner was the robber.
Mr Hakaraia was an important aspect of the defence case, because, as Mr Burston noted, the defence pointed to him as the person responsible for the robbery. It was true, as the prosecutor put it, that the evidence showed that Mr Hakaraia did not know Mr Lawson or vice versa. But the defence case did not require that Mr Hakaraia had obtained the cigarette directly from Mr Lawson, but rather that he had known “Shaun” for whose girlfriend the appellant had rolled the cigarette and that Mr Hakaraia had obtained the rolled cigarette from Shaun. The appellant says that Mr Bott did not challenge what Mr Burston had said about the cigarette and would have done so if prompted. This is disputed by Ms Bicknell. She points out that Mr Bott did refer in his closing address to the possibility that the appellant had rolled a cigarette for “Shane” (rather than “Shaun”) and also made it clear that the defence case was that the cigarette had been deposited where it was found on the roof of the supermarket by someone other than Mr Lawson. We agree that the most that could be said on this point is that the appellant may have been able to ask Mr Bott to emphasise the point in his closing.
We accept that Mr Burston seems to have used the fact that Mr Hakaraia and the appellant did not know each other as a reason for rejecting that hypothesis. But it was clear from Mr Bott’s address that the defence case did not rely on the appellant and Mr Hakaraia knowing each other. However, the fact that they did not know each other did not assist the defence theory that the cigarette had been placed on the roof in order to frame the appellant.
It was also a plank of the defence case that it was unlikely that a pre-rolled cigarette would have fallen from the pocket on the top that was worn by the appellant at the time which had a flap top.
In his affidavit, the appellant refers to the cross-examination of Detective Stonehouse by Mr Bott, during which Mr Bott put it to the detective that the pocket on the top worn by the person seen in the CCTV footage had a flap top, and that it was unlikely that a cigarette would have fallen from this. The officer did not express a view on this. The appellant says that he would have liked to have been able to pass a note to his counsel asking his counsel to emphasise this point. But, as Ms Bicknell pointed out, his counsel did exactly that in his closing address. He said:
… well, if someone dropped a cigarette at the scene, where would they drop it from? This is a top, you might think, with those covers over the pockets. You’re bending to drop the glass, it would fall out perhaps but you’d have to have [the] pocket up and bend over like a staple for that to happen.
There was nothing more to emphasise on that point.
The appellant also had a concern about Mr Burston’s theory as to the way in which the cigarette ended up on the roof in relation to Mr Burston’s discussion of timing. Although he did not address in his affidavit what he would have told Mr Bott to say, he did identify this as a concern in the letter he sent to Mallon J at sentencing. This is what he said:
Mr Burston put to the jury that I had returned to the scene around 4 – 4.30 am to remove the glass from the window after the alarms were turned off.
There was no evidence presented in Court to suggest that I could have known what time the alarm was turned off. … Mr Burston had no factual basis to put forward the new timing in the manner he did.
Again, he did not say what he wanted Mr Bott to say to the jury about this. Rather, he said the note he intended to pass was to contain a message asking Mr Bott to deal with the submission made by the prosecutor that the offender had carried an extra set of clothing, in particular how that could be explained when the offender did not have a bag.
Mr Bott did in fact confront this submission head-on in his closing address. In the course of his putting to the jury the defence theory that Mr Hakaraia was the offender, Mr Bott pointed out that Mr Hakaraia, as a Countdown employee, knew the layout of the supermarket and where the safe was. He then said:
My friend said the person perhaps only took out in a systematic way, I think after 4 am, when the alarm, the perimeter alarm was deactivated. How would someone who was never an employee or had been up there, and there’s no evidence of Mr Lawson going into the supermarket in the early hours of the morning, know all that? You can’t see it from the outside. It’s because you know the routine. And we know that Mr Hakaraia had the opportunity because he was a cleaner in the mornings and the evenings. He knew where the safe was, he knew the layout and even Mr Hakaraia said he knew the codes.
We do not consider that any further useful comment could have been made about that.

(b) The bag

Mr Burston also referred to the propensity evidence in closing, and in particular, the fact that the appellant sometimes carried a bag with him when committing a robbery. He said, when describing what the appellant had done in an earlier robbery that was the subject of propensity evidence:
So it’s not part of his [modus operandi] that he always takes a bag into the premises to carry the money away.
The appellant says in his affidavit: “This did not seem to be fair propensity evidence, as it was not alleged that I always carried a bag, I also expected Mr Bott to emphasise this”. In fact, the prosecutor said that it was not part of his modus operandi to carry a bag in every case, so the appellant’s concern in relation to this aspect of the case appears to be a misunderstanding of what the prosecutor said. Mr Bott mentioned in closing the carrying of a bag as part of the propensity evidence and commented:
… and the bag, as though this somehow shows a modus operandi. It’s nothing.
The Crown did not rely on the appellant having a bag as part of his modus operandi, so we do not consider there was anything more that could usefully have been said about this.

The appellant was also concerned, he said, about what the prosecutor said about his clothing. Mr Burston mentioned that the propensity evidence showed that Mr Lawson sometimes wore two sets of clothes, and added:
… when you see the robber in the CCTV stills and you look at how thick around the arms and so forth – well Mr Bott says my client’s slight and skinny it can’t be him – think about that. We know that on previous occasions he has worn two sets of clothes during the robbery.
The appellant said that the CCTV footage did not show him with two sets of clothing on, and it was much more likely that the person in the footage was Mr Hakaraia. He said that he wished this to be emphasised by Mr Bott.
This was, however, directly addressed by Mr Bott in his closing address. Further emphasis of it would not have advanced matters.

Conclusion

All of this leads us to conclude that, even if the appellant was prevented from passing a note to his counsel, none of the matters he now says he wished to raise would have had any impact on the way the issues were put before the jury. We conclude, therefore, that the trial did not miscarry on this account.

Ground two: admission of propensity evidence

Mr Ellis argued that the propensity evidence was improperly admitted by this Court in the pre-trial decision. To provide context for that argument, we set out the relevant paragraphs from the pre-trial decision in which the propensity evidence is described:[6]
[6]Pre-trial decision, above n 2.
[10]      The Crown proposes to lead evidence relating to convictions for aggravated robbery or burglary on five previous occasions.
25 February 2001
[11]      In February 2001 Mr Lawson was employed as a chef at a bar in Johnsonville. On 25 February 2001 he purchased masks and cable ties, and uplifted a firearm. At about 11 pm he and an associate began staking out the bar. They entered it at about 12.45 am, whilst two staff remained on the premises. They restrained the staff using cable ties, and ordered one of them to open the safe. They then locked the victims in the chiller, before leaving with the contents of the safe. Mr Lawson pleaded guilty to the charges arising out of this incident.
11 March 2001
[12]      At approximately 1 am on 11 March 2001, Mr Lawson went to a bar wearing a balaclava and carrying the same rifle used in the Johnsonville robbery. He waited outside the bar until the manager left the premises. He had let the tyres down on her vehicle, and planned to accost her when she discovered that fact.
[13]      To Mr Lawson’s surprise, the manager left the scene on foot once she discovered her vehicle had been immobilised. Unknown to Mr Lawson, the manager lived just a short distance away. Mr Lawson followed her, and then broke into her house. He forced the manager to return to the bar, and to open the safe. Having removed the money from the safe, Mr Lawson bound the manager’s wrists with plastic handcuffs and left the premises. Again, he pleaded guilty to the charges laid as a result of this incident.
25 March 2001
[14]      At approximately 9.35 pm on Sunday 25 March 2001, Mr Lawson and an associate went to a bar. After observing the bar for some time, they decided to rob an adjoining pizza restaurant. At about 10 pm Mr Lawson climbed a wall at the rear of the premises, which were about to close. Again, he carried a rifle and wore a disguise. He entered the unlocked back door, and confronted two employees. He then forced one of those persons to empty the safe and place the contents in a bag. Both employees were then shut in a small toilet at the rear of the shop whilst Mr Lawson and his associate made their escape. Mr Lawson pleaded guilty to this offending as well.
22 April 2001
[15]      At about 7.50 pm on 22 April 2001, Mr Lawson and an associate entered the rear door of a [Four Square] supermarket [in Eastbourne] just as it was closing. Both wore balaclavas and gloves. Once inside the premises, they confronted the manager and two staff members. They forced the manager to open the safe, and place its contents into a bag that Mr Lawson provided. They then required the victims to enter the supermarket’s chiller, and to remain there whilst they made their escape. Once again, Mr Lawson admitted this offending.
25 July 2009
[16]      In July 2009, Mr Lawson was working as a chef in a bar in Ohakune. Late on the evening of 25 July 2009, he left the bar and climbed onto the roof of a nearby [New World] supermarket. He then used a jemmy bar to remove the exterior weather boards of the cashier’s office. Having done that, he smashed a hole in the internal lining and entered the room. Before doing so he put a black plastic rubbish bag over his head to conceal his identity from a security camera installed in the office. Mr Lawson then walked over to the camera, and taped the plastic bag over it. Unfortunately for him, the plastic bag slipped as he was placing it over the camera, and this later provided confirmation that he was the intruder.
[17]      Mr Lawson attempted to break open a safe in the office using the jemmy bar. In doing so, he set off an alarm. He then fled from the premises, but was apprehended nearby. He pleaded guilty to this offending also.
[18]      Mr Lawson was sentenced to ten and a half years imprisonment in respect of the offending that occurred between February and April 2001. He was released from prison on 30 April 2008, but recalled between 1 May and 5 June 2009. On 10 February 2010, he was sentenced to 18 months imprisonment for burgling the supermarket in Ohakune on 25 July 2009. He was released after serving this sentence on 1 August 2011.

This Court upheld the first instance decision of Miller J allowing the Crown to adduce the propensity evidence in the form of summaries of fact to which the appellant had pleaded guilty in the earlier cases. The Court’s conclusions were as follows:
[32] Although he did not develop his argument in any detail, counsel for Mr Lawson also submitted that the propensity evidence in the present case went no further than showing that Mr Lawson had on previous occasions been involved in robberies of commercial premises. He submitted this would not assist the jury to determine whether Mr Lawson was the person who robbed the Paraparaumu supermarket on 16 September 2011.
[33] On this point we endorse the analysis undertaken by the Judge. The propensity evidence is clearly reliable, because Mr Lawson’s guilty pleas mean he has admitted responsibility for the events giving rise to the previous convictions.
The analysis of Miller J that was endorsed by this Court was as follows:[7]
[16] I accept [the prosecutor] Ms Ewing’s submission that there are a number of similarities. The crimes were organised, sometimes involving extensive planning and preparation. Safes were targeted, and business routines must have been studied to establish when senior staff with access to the safes were vulnerable. He wore gloves and took steps to evade security systems when entry was forced. A bag was sometimes taken for proceeds, as were restraints in some cases, and weapons were used to subdue the victims. If the victims could not be restrained they were placed in a room or otherwise threatened so Mr Lawson could make his escape.
[17] I accept Mr Bott’s submission that the Ohakune offence displays some features not present in the other cases. In particular, it is the only one in which he sought to force a safe, rather than relying on staff to empty it. But this is a very different case from Vuletich v R, on which counsel relied.[8] In that case the similarities were slight and the propensity less inherently distinctive, while there were major differences. Here the 2001 offences are strikingly similar, and the 2009 one only slightly less so. It too involved planning and preparation, the targeting of a safe, forced entry to an area where he must have known the safe was, and precautions to disable security systems.
[7]R v Lawson [2012] NZHC 2222.
[8]Vuletich v R [2010] NZCA 102.
Mr Ellis argued that the robbery at issue in the present case related to a supermarket, whereas the earlier aggravated robberies committed by Mr Lawson were robberies of commercial premises. He argued that this was an important distinction because the appellant’s method of operation was to rob commercial premises other than supermarkets, and so did not suggest a propensity towards supermarkets. In addition, he pointed out that one of the propensity offences was an aggravated burglary rather than an aggravated robbery, because in the relevant incident no person was present. He said that offence was different in nature from the present offending and this had not been appreciated by this Court in its propensity decision.
This Court endorsed the reasoning in the High Court decision that was subject to the appeal before it. As can be seen from the quotation above,[9] the High Court Judge had carefully considered the difference between the Ohakune offending and the present case. We see no error in his reasoning.
[9]At [36].
Mr Ellis’s concern was not just that propensity evidence of the Ohakune burglary was admitted, but that the differences between the Ohakune incident and the present case were not sufficiently emphasised to the jury. He also argued that the different types of premises involved in the propensity offences ought to have been identified, because the type of premises that was the subject of the previous incidents was a point of difference from the present case.
Mr Ellis said that the prosecutor had referred to the appellant targeting supermarkets, and had been corrected by the Judge at one point to change “supermarkets” to “commercial premises”. He also said that the incident involving the Eastbourne Four Square should not have been described as an aggravated robbery of a supermarket, because the Four Square was a “superette”, not a “supermarket”.
We do not see any significance in these fine distinctions. The exact nature of the premises being robbed was secondary to the method of operation of committing offences involving the taking of large amounts of money from businesses operating in a cash environment. Whether they were bars, restaurants, superettes or supermarkets was not a significant factor in the decision of this Court in the pre-trial appeal to uphold the admission of the evidence as propensity evidence. In any event, two of the previous offences had, in fact, involved supermarkets: the burglary of the Ohakune New World supermarket and the aggravated robbery of the Eastbourne Four Square supermarket. We do not see any error in referring to the Eastbourne Four Square as a supermarket. We accept that the reference to targeting supermarkets would have been better expressed as targeting “commercial premises including supermarkets” but we do not consider this a matter of any significance in the context of the trial as a whole. The prosecutor gave a clear summary of the propensity incidents in his closing address in which he identified the nature of the premises involved in each incident. The jury could not have been in any doubt about this.
We do not consider there was any shortcoming in the direction given by Mallon J about the propensity evidence. While she could have made more of the fact that the Ohakune incident was a burglary rather than an aggravated robbery, involving an attempt to break into the safe rather than forcing someone to open it, we do not consider that the directions contained any material error.

Grounds three and five: amendment of indictment and Crown case changing between opening and closing

Grounds three and five overlap and we will deal with them together.
Following the fifth day of the trial, the indictment was amended to delete the allegation that the appellant undertook the robbery with an accomplice, so the sole allegation was that he undertook the robbery alone. The Crown opening had described the charges as being a party to robbery and kidnapping. After the amendment to the indictment, the Crown closing referred to the appellant’s role in the alleged offending as that of a principal.
Mr Ellis argued that the appellant’s case was prejudiced by this because his counsel did not call a witness who had recalled seeing two people. In addition potential avenues of cross-examination were not pursued because, although they might have provided some assistance in the case against the appellant as principal, they may have left open the possibility that he was a party.
The witness who was not called had told the police she had seen Mr Hakaraia and another man at about 4.45 pm on the afternoon before the robbery in the vicinity of the staff toilets. She thought the other person was Mr Hakaraia’s nephew or cousin. Mr Ellis said she would have been called to show there was likely two persons involved, contrary to the appellant’s normal modus operandi of undertaking robberies on his own. We do not consider that this sighting on the day before the robbery would have provided any proper basis for determining whether there was one or two robbers on the following morning.
Another witness told the Court that she had been told by another person that the other person had seen people on the roof at about 8 pm on the night before the robbery and had reported this to the police. Nothing of moment was achieved by Mr Bott in cross-examination on this point and Mr Ellis did not say what other information could have been elicited from this witness. Given that she was proffering a hearsay account, it is hard to see what additional information would have emerged.
In addition, Mr Ellis mentioned that Mr Bott had intended to call a face mapping expert but did not do so. It is unclear to us what difference the change in the indictment made to this tactical decision.
We accept Ms Bicknell’s submission that the core of the Crown’s case and the evidence on which it relied remained constant from the opening address to the closing address. The description of the offending in the opening was of the appellant as principal, but acting with an accomplice. In closing there was no reference to an accomplice. But the Crown case was always that the appellant was the principal offender. Similarly, the defence was that the appellant was not involved in the robbery. This remained the same after the amendment to the indictment. The underpinning of the Crown case was said to be “four planks”: the cigarette, propensity, proximity to the scene at the time and access to large amounts of cash soon after. This was constant throughout the trial.
We are not convinced that any real prejudice was caused by the late omission from the indictment of the alternative allegation that the appellant was a party to offending by another.

Ground four: improper direction in relation to Mr Hakaraia

Mr Ellis said the Judge ought to have put to the jury the possibility that Mr Hakaraia was a party to offending by another. That was not a possibility that was canvassed in the defence closing. The Judge carefully and accurately summarised the defence allegations in relation to Mr Hakaraia. There was no obligation for her to raise an additional possibility that defence counsel had chosen not to advance. To do so would have involved speculation.

Ground six: unreasonable verdict

Mr Ellis argued that the verdict was unreasonable. A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the defendant was guilty.[10] He pointed to the following matters:
(a)The unlikelihood of the unsmoked cigarette falling from the pocket of the person seen on the CCTV footage.
(b)The sighting of Mr Hakaraia with another person on the afternoon before the robbery.
(c)The fact that Mr Hakaraia made a cash withdrawal from the ANZ Bank ATM adjacent to the supermarket at 4.57 am on the day of the robbery and so was present at around the time of the robbery. Mr Burston’s response to this at the trial was to ask why would someone withdraw money from the bank (especially a bank located next to the crime scene) just before committing a robbery that was likely to yield significant cash? Mr Ellis argued this could have been part of a plan to frame the appellant, because it gave Mr Hakaraia an innocent reason for being there.
(d)The lack of clarity about the robber carrying or wearing a second set of clothes, carrying a hammer or similar object to break the window and not having a bag. Mr Ellis emphasised that the offender had to climb on to the roof and this would have been hard to do while carrying items and/or wearing two sets of clothes.
(e)The CCTV footage of the offender is not such that the appellant is identifiable and the victim could not identify the offender who was masked when he confronted her. Mr Ellis argued the person in the CCTV footage does not resemble the appellant.
(f)The fact that Mr Hakaraia was uncooperative, had relevant previous convictions, was at the scene and was not subject to the same degree of detailed investigation by the police.
[10]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5] and [17].
As noted earlier, the Crown’s case relied on the presence of the cigarette at the scene, the appellant’s propensity to commit similar offences, the fact that the appellant was in the vicinity of the scene of the crime at the relevant time, and evidence that he had access to significant amounts of cash shortly after. Together, these constituted a circumstantial case pointing to the appellant as the offender. The matters raised before us by Mr Ellis were before the jury. We reject the submission that, considering the Crown case in light of the matters raised by the defence, a reasonable jury could not have concluded that the appellant was guilty of the offence.

Result

The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[2014] NZCA 463

22 September 2014 at 11 am