MacDonald v The King
[2024] NZCA 287
•2 July 2024 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA455/2023 [2024] NZCA 287 |
| BETWEEN | THOMAS WILLIAM MACDONALD |
| AND | THE KING |
| Hearing: | 20 June 2024 |
Court: | Collins, Venning and van Bohemen JJ |
Counsel: | R A Harrison for Appellant |
Judgment: | 2 July 2024 at 3 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr MacDonald was convicted by a jury in the District Court of a charge of aggravated robbery.[1] He appeals his conviction. In his notice of appeal, he set out two grounds: first, that Judge Barkle, the trial Judge, did not summarise the defence case; and secondly, that the Judge’s summing up implicitly dismissed the defence case.
[1]R v MacDonald [2023] NZDC 13058.
Mr Harrison accepted that the first ground of appeal is “without substance” and it was therefore not pursued. The second ground of appeal was the focus of the hearing before us.
Background
Mr MacDonald was charged with two other defendants, Ms France and Ms Filipo. They planned to lure the victim, Mr Hodson, to a remote location and rob him of his methamphetamine.
In the early hours of 27 February 2021, Ms France arranged to meet Mr Hodson in order to smoke methamphetamine in exchange for her providing Mr Hodson with sexual favours. The plan was that once Ms France was with Mr Hodson, she would text Mr MacDonald and Ms Filipo as to where she was and that the three would then rob Mr Hodson.
Mr Hodson picked Ms France up in his car and drove her to the Blenheim Rowing Club. She sent a text to Mr MacDonald telling him where she was. Mr MacDonald then drove Ms Filipo in Ms France’s car to the Rowing Club. When they got close to the Rowing Club, Ms France sent a text to Mr MacDonald that said “[i]t in his door walk up”. Mr MacDonald replied “[c]oming”. Ms France responded “[o]kay stealth”. Mr MacDonald’s response was “[g]et tits out we walking in”.
According to Mr Hodson, Mr MacDonald and Ms Filipo ran towards Mr Hodson’s car. Their faces were covered. The male attacker was holding a rifle. The assailants demanded Mr Hodson hand over his phone. The male attacker pointed the rifle at Mr Hodson’s feet which prompted him to hand over his phone. Mr Hodson then tried to get his wallet and car keys. Ms France, Ms Filipo and the male attacker then struggled with Mr Hodson to get his keys. He was struck in the head several times by the man with the rifle.
At about this stage, Mr MacDonald and Ms Filipo’s face covers fell off. Mr Hodson recognised them.
Mr Hodson said that he was knocked out and when he regained consciousness, he saw Mr MacDonald and Ms Filipo were trying to start his car. Ms France then pulled up in her car. Mr MacDonald and Ms Filipo got into Ms France’s car and drove off with Mr Hodson’s phone and methamphetamine.
Mr Hodson managed to drive to a friend’s place and about an hour later he was admitted into hospital, suffering from three deep lacerations to the top of his head and abrasions and bruises to his forehead.
When police spoke to Mr Hodson at the hospital at about 5.15 am, he explained that Ms France had set him up and that Mr MacDonald and Ms Filipo were the other two offenders. He also said Mr MacDonald had pointed a rifle at him.
All three defendants were charged with aggravated robbery and aggravated wounding. Ms France and Ms Filipo pleaded guilty to aggravated robbery. The aggravated wounding charges against them were withdrawn. Mr MacDonald proceeded to trial. The aggravated wounding charge against him was dismissed pursuant to s 147 of the Criminal Procedure Act 2011. The jury were unable to reach a verdict in relation to the aggravated robbery charge. At the re-trial, which commenced on 1 May 2023, Mr MacDonald was found guilty of aggravated robbery.
All three defendants were sentenced by Judge Barkle on 22 June 2023:
(a)Ms France was sentenced to 12 months’ home detention;[2]
(b)Ms Filipo was sentenced to 11 months’ home detention;[3] and
(c)Mr MacDonald was sentenced to three years’ imprisonment.[4]
Mr MacDonald’s accounts
[2]At [45].
[3]At [42].
[4]At [46].
Mr MacDonald was interviewed by police on 2 March 2021. He said he was not involved with the offending and that he was out fishing with his partner at the time Mr Hodson was attacked and robbed.
Mr MacDonald gave evidence at his trial. He said:
(a)That he was part of the plan to rob Mr Hodson of his methamphetamine.
(b)Ms Filipo was using his phone when they were driving towards the Rowing Club and that it was Ms Filipo who exchanged the text messages with Ms France that we have set out at [5].
(c)When he and Ms Filipo arrived at the Rowing Club, Ms Filipo got out of the car and he went to go park the vehicle.
(d)After he parked the car, he started to walk towards where Mr Hodson’s car was, but before he got far Ms Filipo and Ms France ran towards him saying “… we’ve got it. Let’s go”.
(e)They all got into Ms France’s car and drove off.
(f)As he was driving away, Ms France distracted him by waving a bag of methamphetamine in front of him. This caused Mr MacDonald to drive into a ditch. As he was trying to get the vehicle out of the ditch, Mr Hodson pulled up in his vehicle and started to abuse them. According to Mr MacDonald, Mr Hodson was not injured at that stage.
(g)Two days later, Mr MacDonald saw Mr Hodson at a petrol station. Mr MacDonald confronted Mr Hodson, saying that he had nothing to do with the attack on Mr Hodson.
At trial, Mr Hodson was unsure if Mr MacDonald was the man who had attacked him. The defence theory was that Mr Hodson was attacked by his methamphetamine dealer. Mr Hodson rejected that suggestion.
Summing up
During the course of guiding the jury through the question trail, Judge Barkle explained Mr MacDonald’s defence:
[50] In this case Mr MacDonald has explained his version of events to you. He said that he had been involved in making the plan with Ms Filipo and Ms France of taking methamphetamine from Mr Hodson. He had travelled to the rowing club with Ms Filipo. She was texting on his phone with Ms France who was with Mr Hodson. Ms Filipo was telling Mr MacDonald what was contained in the text messages. When he and Ms Filipo arrived at the rowing club, Mr MacDonald said by the time the vehicle was parked up by him Ms Filipo was out of the vehicle and headed over to Mr Hodson's car. Mr MacDonald said as he headed that way the two women returned with the cellphone and they all then went to Ms France's vehicle. They left. He said he had no involvement in the events at the Holden vehicle of Mr Hodson.
After summarising the closing address of Mr Harrison, the Judge cautioned the jury about Mr Hodson’s visual identification of Mr MacDonald:
[63] … As you know, Mr Hodson did identify Mr MacDonald as being at the scene of the violence and involved in the taking of the mobile phone. The Crown case depends in part on that visual identification by Mr Hodson of Mr MacDonald. I warn you that you must be cautious before finding the defendant guilty on the basis of that evidence of identification by Mr Hodson. The reason for this warning is that miscarriages of justice involving the wrongful conviction of innocent people can and have occurred because a person has been wrongly identified by one or more witnesses. Remember that a mistaken in identification witness may be convincing and believe that they are right even though they are wrong.
The Judge then summed up the Crown’s case concerning the identification of Mr MacDonald by Mr Hodson:
[64] There are a number of factors in this case that the Crown relies on to support the identification of Mr MacDonald being at the attack of the complainant, Mr Hodson:
(a)As I have said, Mr Hodson has always referred to there being three people involved.
(b)Mr MacDonald was involved in the planning that took place between him, Ms Filipo and Ms France then it was consistent that he follow through and be involved in what took place at the Holden vehicle.
(c)Mr Hodson and the third person being Mr MacDonald came into very close proximity to each other at the time of the events at the Holden vehicle.
(d)Further, Mr Hodson had identified Mr MacDonald to Constable James shortly after the incident then had gone on to again identify him to the police in the interview on 4 March.
The Judge then reminded the jury of factors that counterbalanced the Crown’s case concerning the identification of Mr MacDonald by Mr Hodson. The Judge said:
[66] The defence relies on the following factors to raise concern regarding the identification:
(a) The complainant Mr Hodson and Mr MacDonald had only met once in the past and that was some 10 years prior to February 2021.
(b) There was no lighting at the rowing club.
(c) The night was described as misty and foggy.
(d) The incident was described as relatively short.
(e)That there was a balaclava and other covering of the face worn for a good period of the attack by the male person.
(f)That Mr Hodson said after seeing Mr MacDonald at the Mobil station that he was not the person who had been involved in the assault at the rowing club.
[67] At the end of the day members of the jury it is up to you whether you accept the identification evidence of Mr Hodson but as I have warned you, you must be cautious when assessing it because of the dangers that are generally associated with identification evidence.
The appeal
Mr Harrison submitted that [66] of the Judge’s summing up undermined the defence case and the matters identified by the Judge as points that favoured Mr MacDonald were deliberately never relied upon by Mr Harrison in his closing address. Mr Harrison submitted:
25.Given that the Appellant said that he never approached the car and the only time the Victim would have seen him was when his vehicle was in the ditch, to suggest that the Defence were relying on the fact that he couldn’t identify the Appellant assaulting him conflicts strongly with the Defence case.
…
32.At issue for the Appellant is the fact that he was always adamant that he did not engage with the Victim. To suggest that the Defence was relying on issues of identification and that there was a balaclava and other covering worn for the attack by the male person, undermines the Appellant’s position. Further, it suggests to the jury that the Appellant is relying on identification rather than the version of events put to them by Counsel. At no stage did Counsel argue the issue of identification.
Analysis
This Court must allow an appeal against conviction if, having regard to the evidence, the jury’s verdict was unreasonable, or a miscarriage of justice has occurred for any reason.[5] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.[6]
The identification issue
[5]Criminal Procedure Act 2011, s 232(2)(a) and (c).
[6]Section 232(4).
At [66] of his summing up, Judge Barkle was responding to the Crown’s submissions that Mr Hodson had correctly identified Mr MacDonald as the man who had attacked him. The Crown relied upon the facts set out in [64] of the Judge’s summing up. The factors listed by the Judge at [66] counterbalanced the Crown’s arguments.
Whilst Mr Harrison did not raise identification as an issue that should trouble the jury, the Judge was obliged to ensure that no miscarriage of justice arose through a failure to properly instruct the jury on the factors that were available to the defence in assessing the accuracy of Mr Hodson’s identification of Mr MacDonald.
Mr Harrison was correct when he said the defence did not rely on the factors set out in [66] of the Judge’s summing up. The Judge was however discharging his duty to ensure issues concerning Mr Hodson’s identification of Mr MacDonald were assessed by the jury after taking into account all relevant considerations.
Whilst the Judge may have made a minor error by saying that the factors he listed at [66] of his summing up were relied upon by the defence, they were factors the jury could properly take into account when assessing the reliability of Mr Hodson’s visual identification of Mr MacDonald. That minor error falls significantly short of constituting a miscarriage of justice.
Other complaints about the summing up
Mr Harrison said that the Judge failed to refer to the approximately one hour it took for Mr Hodson to get to hospital and the absence of blood stains around the drivers’ seat in Mr Hodson’s car.
The Judge did however address these matters when summing up aspects of the defence case. The Judge reminded the jury that Mr Harrison had stressed to them the injuries suffered by Mr Hodson and how it was inconceivable that his blood would not have been in the driving compartment of Mr Hodson’s car.
Mr Harrison’s concern that the Judge had failed to refer to the one hour time lapse it took Mr Hodson to get to hospital is also devoid of substance. In fact, the Judge reminded the jury of this matter when he told them that Mr Harrison had rhetorically asked “[w]hat exactly did Mr Hodson do [after he] left the rowing club”.
The criticisms of the Judge’s summing up by Mr Harrison are misplaced. No miscarriage of justice arose through the way the Judge summed up the case for the jury.
Result
The appeal against conviction is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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