Levin v Ikiua

[2010] NZCA 309

IN THE COURT OF APPEAL OF NEW ZEALAND

CA555/2009
[2010] NZCA 309

BETWEENWINSTON JAMES SHANE YOUNG

Appellant

ANDTHE QUEEN

Respondent

Hearing:2 June 2010

Court:Arnold, Wild and Simon France JJ

Counsel:G J King for Appellant

H W Ebersohn and F E Guy Kidd for Respondent

Judgment:19 July 2010 at 3 pm 

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]        On 26 May 2006, the final day for paying quarterly rates, there was an armed robbery of the offices of the Palmerston North City Council.  A large sum of cash and numerous cheques were stolen.  Ultimately two people were charged with the offence.  Mr Young was convicted, and the other, Mr Woods, was acquitted.  Mr Young appeals his conviction on two grounds:

(a)the guilty verdict was unreasonable in that it was not available on the evidence;

(b)the acquittal of his co‑accused highlights concerns about the viability of differing verdicts, and the adequacy of the summing up in this regard.

Facts

[2]        Two women were counting the money in the Council’s offices at the end of the day.  When it was completed, one of them took the cash into the safe room.  An armed robber was inside, hiding.  The subsequent commotion caused the other woman to enter the safe area.  Thereafter both were detained at gunpoint, and required to load the cash and cheques into a backpack.  The robber escaped through an emergency door.  During the robbery he had been wearing latex gloves.

[3]        From the outset it was apparent that the robber had familiarity with the systems and layout, and so had information from a source who knew how things were done.

[4]        The Crown case was that Mr Young was the robber.  It was said that he was assisted by Mr Woods, who was a long time companion of one of the two women who were in the safe room at the time of the robbery.  The theory was that Mr Woods provided the inside information, and acted as a lookout on the day, alerting Mr Young as to the correct time to do it.

Issues on appeal

[5]        The route to convicting Mr Young can be described in concise terms.  On the morning following the robbery, a farmer found a discarded jacket outside his property, on the side of the road on one of the highways leading out of Palmerston North.  Inside the pocket of the jacket were a balaclava and two pairs of latex gloves.  This clothing was handed to the police three days later.  The police then themselves went to the scene and nearby found a pair of track pants.

[6]        The Crown case was that these items were the clothing worn by the robber.  It was said that they were similar to the clothing being worn by a person seen on CCTV footage in the building, and who the Crown said was the robber.  It was broadly consistent with, and not plainly inconsistent with, the descriptions given by the two women.  The farmer knew that the clothing was not there the previous afternoon.  It had obviously been thrown from a car and the timing of its appearance coincides with the robbery.  Finally the nature of the clothing (balaclava, latex gloves) is consistent with the alleged use (disguise during the course of a crime).

[7]        If a jury was convinced that the clothing found by the roadside was the clothing worn by the Council robber, then Mr Young was in difficulty because only one DNA profile was located on the latex gloves.  That profile belonged to Mr Young, and the probability given by ESR was 30,000 million to one in favour of the DNA being that of Mr Young rather than anyone else.

[8]        The other strand to the prosecution case against Mr Young was Mr Woods.  Mr Woods was known to Mr Young.  He was alleged to be the source of the inside information the robber had to have.  The allegation at trial, however, went much further.  It was said that Mr Woods was at least equally involved.  He was the planner.  The second appeal point, therefore, involves consideration of the impact of his acquittal on the correctness of Mr Young’s conviction.

[9]        Counsel were agreed that the relevant law is as set out in Owen v R.[1]  That case endorsed the principles set out in R v Munro.[2]  For a verdict to be unreasonable, it must be concluded that, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.[3]

Issue one – was the DNA evidence reliable?

[1]      Owen v R [2007] NZSC 102; [2008] 2 NZLR 37.

[2]      R v Munro [2007] NZCA 510; [2008] 2 NZLR 87.

[3] Ibid, at [87].

[10]       It is convenient to deal first with the reliability of the DNA evidence linking Mr Young to the latex gloves.  The scientific process required in order to find the DNA sample on the gloves meant that it could not later be said from what part of the glove the sample was sourced.  In particular, whether the DNA came from the inside or the outside.  The underlying point, of course, is that DNA taken from the inside of the glove is more easily attributed to the wearer.

[11]       Trial counsel for Mr Young (not Mr King) mounted an impressive challenge to the DNA evidence.  The attack was both as to the science and as to the particular application of the science to this sample.

[12]       It can be noted by way of background to the cross-examination that obtaining the profile from the particular sample was not straightforward.  Originally only one allele was found and there was a dispute within the laboratory about the correctness of that conclusion.  Next, a second testing produced no allele.  Then a third testing produced 13 alleles out of a possible 20.  Ultimately 17 alleles were identified.  Not all the tests identified the same allele each time, so the total of 17 out of a possible 20 alleles was a cumulative figure of all the tests.

[13]       In a focussed cross-examination, counsel ably explored topics such as the adequacy of the New Zealand database which is used for comparative purposes and which produces the 30,000 million to one figure, and the fact that even though a science, there is a significant measure of human interpretation in these results.  The fact that there had been disagreements on some readings was acknowledged, and the difficulties in obtaining a reading were discussed.

[14]       Ultimately, however, the ESR witness, whilst acknowledging many of the points, adhered to the reliability of the test result.  In her opinion 30,000 million to one was the correct figure, and it would be unchanged if the comparator database were solely made up of the Caucasian population of New Zealand.[4]

[4]This was in respect of the propositions made about the makeup of the New Zealand database which ESR uses.  It was said to disproportionately contain samples from people of Māori and Pacific Island ethnicities.

[15]       Mr King presented the appeal submissions with the same expertise trial counsel had shown.  But ultimately, in the absence of contrary evidence saying the evidence was wrong or the process flawed, there is no basis on which this Court could say it was not open to the jury to accept the ESR evidence.  The jury might have found a doubt on the basis of the cross-examination, but it certainly did not have to.  There is presently no evidence that says the jury was wrong to find the evidence convincing, and that must be the end of this issue on appeal.

[16]       Likewise, the issue about the inability to identify whether the sample came from the inside or the outside of the glove is a jury point.  The reality is that there was no alternative narrative in the evidence that could explain how a robber, not being Mr Young, managed to get Mr Young’s DNA on the latex gloves.

[17]       There was evidence that Mr Young had been for a period in the Palmerston North area, and had done some work.  But a jury was not obliged to accept the extraordinary run of coincidences that would have been needed to achieve an innocent transference of his DNA onto the robber’s gloves.  The true robber would have to have earlier had the gloves at a scene where Mr Young had also been and where Mr Young had left DNA.  Then for some reason the offender would have to be either wearing the gloves at that time, and chosen to wear them again for the robbery, or otherwise at that earlier occasion have dealt with the gloves so as to somehow get Mr Young’s DNA on them.  All these relatively unlikely events had to also face the hurdle that the only DNA on the gloves was Mr Young’s.  If he was not the wearer, both his DNA had to somehow get on them, and the actual wearer had to leave none.

[18]       The reality is that if the process of identifying the DNA profile stood up to challenge, then the jury was fully entitled to conclude the DNA was on the gloves because Mr Young was wearing them.  The sole issue then became whether they were the gloves worn in the robbery.

Issue two – was the clothing found by the roadside worn by the robber?

[19]       The latex gloves were found in the pocket of a green jacket abandoned by the roadside.  Also in the pocket was a black balaclava.  Nearby were found a pair of black track pants.  The track pants were discarded fully turned inside out, as if the wearer had pulled them off and thrown them away in a hurry. 

[20]       The task for the prosecution at trial was to make the jury sure that this clothing located at the roadside and bearing Mr Young’s DNA was the clothing worn by the robber.  The task for the appellant on appeal is to satisfy the Court that it was not open on the evidence for the jury to so conclude.

[21]       It is convenient to begin with a description of the clothing in issue.  There were a khaki green jacket (without a hood), black Adidas track pants with three white stripes extending from knee to cuff on the outside of each leg, a black balaclava which cannot be further described because it was extensively cut up in the scientific testing process, and two pairs of discoloured white/creamy latex gloves, similar to those typically used within the medical profession.

[22]       The prosecution placed weight on matters other than the eye witnesses’ descriptions for its proposition that the clothing was the robber’s.  Probably the most significant factor was how the clothing was found.  The farmer who located it on a Saturday morning was able to say it had not been there as late as 4.00 pm the preceding day.  The robbery was committed around 6.00 pm to 7.00 pm on this preceding day.  The jacket was found immediately adjacent to the road, almost touching the white line that marks the side of the road.  It had plainly been thrown from a car. 

[23]       The items in the jacket pocket were consistent with items worn in a robbery.  Indeed, that was a point that occurred to the farmer who found them.  White latex gloves and a balaclava found in these general circumstances are items that hint at crime.  When found in the particular circumstances, and especially given the location and timing of their appearance, they speak of this particular crime.

[24]       As noted, the Adidas track pants were also located near the roadside in a manner suggesting they had been tossed from a car.  There is nothing about the pants that speaks of crime, but plenty that speaks of hasty removal (they were fully inside out with the white lining the dominant appearance) and there is no obvious explanation for why these pants would be discarded there in that way.  Until, of course, it is pointed out that they were only a short distance away from the jacket.

[25]       As for the road, its significance was said to be that it leads to Bunnythorpe, where Mr Young was living at the time.  It is common ground that the road is not the direct route one would normally take from Palmerston North to Bunnythorpe, but it is genuinely a route one could take, particularly if wanting to avoid being observed on the most direct and therefore obvious route.

[26]       Leaving to one side whether the clothing says anything about who the robber was, the Crown case was that these other circumstances establish a compelling starting point for the proposition that they were the robber’s clothes.  This description of the non‑eyewitness factors linking the clothing to the robbery has focussed primarily on the prosecution contentions about that evidence.  That focus reflects the nature of the current appellate inquiry.  As was said in Munro, the Court is not substituting its own view of the evidence, and the weight to be given to individual pieces of evidence is essentially a jury function.[5]

[5]At [88].

[27]       Turning to the “eyewitness” descriptions, there were two sources of information – CCTV footage taken from the Council foyer and the eyewitness accounts of the two women who were the immediate victims.

[28]       This Court has not seen the CCTV footage.  The prosecution case was that a person highlighted on the footage was the robber, and that the clothing he was wearing appears to be the clothing found on the roadside.  On appeal there is no specific argument disputing these propositions.

[29]       Concerning the eyewitnesses, the issue is most conveniently analysed by clothing type – e.g. headwear, jacket, pants.  Before doing so, however, it is to be noted that the trial Judge specifically directed the jury that the eyewitness descriptions were not enough on their own to establish that the clothing was the robber’s.  It seems to have been common ground that there was material in the eyewitness accounts that could bolster or undermine the prosecution thesis, but of itself it could not satisfy the thesis to the required standard.  That is why emphasis was placed on the other circumstances – the nature of the clothing, where it was found, what time it was put there, and the CCTV footage.

[30]       Consistent with this, the real inquiry about the eyewitness evidence, to which we now turn, is whether the inconsistencies between the two women victims, and the inconsistencies between what the women described and the clothing that was found, meant a jury could not be sure the clothing found was the clothing worn by the robber, notwithstanding those other factors that might be thought to suggest it was.

(i)          Headwear

[31]       This was the best defence point.  Ms R described the gunman as wearing a jacket with a hood.  Under the hood was a dark or black beanie.  The robber also had a black scarf around the bottom of his face.  In her original statement she spoke of seeing stubble on the man’s face, and prominent cheek bones.  At trial she said she could only see his eyes and the bridge of his nose.

[32]       Ms S also said the gunman was wearing a beanie and a black scarf or bandana across his nose and mouth.

[33]       No scarf was found.  The black balaclava cannot be better described because of its damaged nature.  The jacket had no hood.

[34]       The Crown points out, by way of general response, that the evidence was that the lighting in the safe room was poor, but was sufficient for the brief periods people spent in there.  By way of specific response it is said the fact that no scarf was recovered does not mean this is not the clothing, just that it was not discarded at the same time.  The predominant theme of the evidence was the black beanie, and the face being well covered, and the discovery of a black balaclava was not necessarily inconsistent with those factors.

(ii)         The gloves

[35]       Ms R said the gunman had on dark gloves.  This was potentially useful evidence for the defence given that the latex gloves are a discoloured cream colour but was probably trumped by Ms S’s contrary evidence.

[36]       Ms S is a part-time ambulance officer, well used to wearing latex gloves.  She said that the gloves were creamy coloured latex gloves of the type that the ambulance officers wear.  Further, she noticed that the robber’s gloves were going an off-yellow colour and recognised what was happening:

[W]hen we sweat on the ambulance we notice that they change colour a bit.

[37]       The farmer who found the gloves briefly looked at them before putting them back into the pocket of the jacket.  At the time he had thought there was some gluey substance on the gloves, or perhaps paint.  This may have been of use to the defence in providing support for the idea of Mr Young’s DNA getting on them by accident when the robber was using them in some other activity, but it was not assisted by the ESR description of the gloves when they arrived at the lab.  No paint or gluey substance was noted; instead they were described as heavily discoloured, which was consistent with Ms S’s observations.

[38]       Mr King notes that Ms S initially said the gloves were see through, but at trial said it was more a case of the hand being more clearly defined.  Either way he submitted this description was inconsistent with the Crown thesis that the robber was wearing both pairs (although there was no evidence whether the see through effect does or does not occur with two pairs).  More generally, we observe it was plainly open to the jury to prefer Ms S’s evidence, given her experience with the gloves, over that of Ms R.

(iii)        Pants

[39]       The pants have three stripes from knee to cuff on the outside of each leg.  Ms S did not notice any stripes and thought she would have.  In her 111 call she had mentioned stripes, but she explained that was as a consequence of speaking with Ms R.

[40]       Ms R recalled a solid white stripe rather than three separate stripes.  Accordingly, the description of neither witness exactly matches the pants found at the roadside, although their general descriptions of the type of pants were consistent with the robber’s pants being track pants.

[41]       Mr Ebersohn for the Crown emphasised the circumstances in which Ms R saw what she thought was a solid white block in the exact area where there are three white stripes:

Can you describe that stripe in any way other than that?

Just looking it just was one, just looked like a, just a block white stripe.

How wide would it have been?

Fairly, when I looked down and his gun was down the side, it was wider than the gun so it was, would have been quite a thick stripe.

[42]       The Crown makes three points.  The reference to the gun is a useful reminder of the context in which all these impressions arose.  Second, it is plain that Ms R’s ability to assess the stripe was affected by the presence of the gun being held over the top of it.  And third, Ms R said there was a white stripe exactly where these track pants have three white stripes.  It was open to the jury to see this latter point as far more significant than whether Ms R wrongly thought it was a single stripe.

(iv)        Jacket

[43]       Ms S said it was an army sort of jacket, light green in colour and one that went down to the hips.  She thought it had a hood, probably black, but just could not remember.  Ms R said it was an army type khaki jacket, big and bulky, also with a hood.

[44]       In relation to the jacket what can be said is that it is broadly like the jacket the witnesses described, but it has no hood.  Variation in colour is explicable by the lighting.

(v)         Appearance

[45]       It seems Mr Young was 185 cm (which is six feet to six feet one inch).  He was aged 45, and Caucasian.

[46]       Ms S described the robber as in his early 30s and between five feet five and five feet eight.  She thought him Caucasian, with a thin bridge to his nose.  He had small dark eyes.

[47]       Ms R thought the bridge of his nose quite narrow and pointy.  She thought the robber was Caucasian and had dark eyes.  She thought he was possibly in his late 30s and quite thin.

[48]       In evidence‑in‑chief Ms S had said the robber was taller than her (five feet four) but a bit shorter than her son who is over six feet tall.  In cross‑examination she reverted to five feet to five feet eight inches.

(vi)        Conclusion

[49]       The point we make about the accuracy or otherwise of the descriptions of the robber’s appearance is that made about all these issues.  There was material for both sides to work with.  It was, indeed, a classic jury issue.  We are comfortable with the proposition that it was well open to the jury to convict, and do not see the outcome of conviction as surprising.  There were good defence points that might have worked to create a doubt in the jury’s mind, but there was also a reasonably compelling Crown narrative that causes no surprise by its acceptance by the jury.

[50]       The circumstances fall well short of meeting the tests in Munro and Owen and this aspect of the appeal is dismissed.

Issue three – the significance of Mr Woods being acquitted

[51]       Although this aspect initially attracted the label of inconsistent verdicts, that was rightly not the specific thrust of Mr King’s submissions.  The reality is that the men were separately represented, they were alleged to have performed different roles, and there was different evidence admissible against each.  First, Mr Woods testified and called evidence.  Mr Young did not.  Second, as Mr Ebersohn pointed out, in a video interview Mr Young made admissions about knowing Mr Woods, and made statements capable of being an acceptance that he had met with him at the relevant time.  That evidence was inadmissible against Mr Woods.

[52]       Third, one witness had testified as to observing a meeting between two men in the town square about 30 minutes before the robbery.  The Crown case was that the persons meeting were Messrs Young and Woods.  If it was Mr Young, and the general description of one of the men including his height and clothes says it could have been, then unless the witness was wholly wrong about the other man’s height, that second person could not have been Mr Woods.  He was described as being taller than Mr Young whereas Mr Woods is considerably shorter.

[53]       Again these were issues for the jury to consider, but differing verdicts were certainly open on the evidence.

[54]       Mr King’s submission is more nuanced than a traditional inconsistent verdict submission.  It focuses on the way the summing up dealt with the inter-relationship between the two accused. 

[55]       The evidence against Mr Woods was quite circumstantial, and totally dependent on his connection with Mr Young.  If Mr Young was not the robber, the case against Mr Woods totally fell away.  If Mr Young was the robber, the prosecution had made a significant advance in its case against Mr Woods, but it still had some way to go.

[56]       Given this dynamic MacKenzie J directed the jury that if they were not satisfied as to Mr Young’s guilt, they must acquit Mr Woods.  That was undoubtedly correct.  He therefore suggested that the jury should first consider Mr Young’s guilt.  It is this suggestion that underpins the concern advanced by Mr King.

[57]       Mr King highlights the role that the Crown alleged Mr Woods played.  The prosecution suggested he was the planner, but most pivotally, suggested that he was the source of Mr Young’s inside knowledge.  It was common ground that the robber had to have inside knowledge, and Mr King notes no one else was suggested as a source.

[58]       Concerning the direction to the jury that they consider Mr Young first, Mr King suggests there is a danger that, in adopting the sequential approach of first Mr Young then Mr Woods, the jury may not have adequately considered the role Mr Woods was alleged to have played, as it affected Mr Young.  More importantly, the jury should have been told that if it decided Mr Woods was not guilty, then it should think about where it had the doubts as to Mr Wood’s guilt, and reassess whether those doubts impacted on its prior assessment that Mr Young was guilty.

[59]       We are satisfied that the risks identified are not present.  First, if the jury followed the Judge’s suggestion, it would have first decided Mr Young’s guilt beyond reasonable doubt.  Given how the case was run, that necessarily would have involved assessing what it thought about the proposition that Mr Woods had assisted.  Mr Woods’ role was plainly a plank in the Crown case against Mr Young, and there is no reason to consider that this aspect of the evidence was ignored.

[60]       Second, the Judge did direct the jury in relation to the topic.  He advised the jury:

[38]       ... I have suggested to you that you may find it convenient to consider the case against Mr Young first, because the case against Mr Woods only arises if you consider Mr Young guilty.  But the two cases are not distinct and separate.  Part of the Crown case against Mr Young is that he had inside knowledge which he obtained from Mr Woods.  So you may need to consider that aspect of the case against Mr Woods before you can reach a final conclusion whether Mr Young is guilty or not guilty.

[61]       Third, as noted, there was different evidence in relation to each, so there is nothing inherently inconsistent in finding Mr Young guilty and sequentially Mr Woods not guilty.  As Mr Ebersohn pointed out, the acquittal of Mr Woods did not necessarily rule him out as the source of knowledge.  It just meant the jury were not satisfied to the required standard of his involvement.  The case was stronger against Mr Young, and there was the added dimension that the robbery put Mr Woods’ long time companion in serious danger. 

[62]       We do not agree the Judge needed to say more.  The direction is focussed exactly on the concern raised, and makes the point there was a connection between the cases. 

[63]       Given this, and given the different outcomes do not of themselves raise issues of inconsistency, this ground of appeal is also dismissed.

Conclusion

[64]       Mr Young was well represented at trial, and again now on appeal by different counsel.  All that could be said in his favour has been, but in the end there was evidence which, if accepted, was sufficient to prove his guilt beyond reasonable doubt.  A well directed jury reached just that conclusion, it was entitled to do so, and the appeal must be dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent