Mohi v The Queen
[2019] NZCA 441
•19 September 2019 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA148/2019 [2019] NZCA 441 |
| BETWEEN | CHARLES TOKO TEWAAKA TAARE MOHI |
| AND | THE QUEEN |
| Hearing: | 11 September 2019 |
Court: | Courtney, Duffy and Wylie JJ |
Counsel: | P N Ross and LRH Grant for Appellant |
Judgment: | 19 September 2019 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeals against both conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wylie J)
Introduction
On 31 May 2018, the appellant, Mr Mohi, was found guilty of one charge of burglary following a jury trial in the District Court at Gisborne, presided over by Judge Gibson. He was sentenced to two years and six months’ imprisonment on 27 July 2018.[1]
[1]R v Mohi [2018] NZDC 16399 [Sentencing notes] at [19].
Mr Mohi appeals both his conviction and the sentence imposed.[2] He argues that the police failed to disclose in a timely fashion details of all fingerprint lifts that had been obtained from items found at or near the scene of the burglary, that this failure prejudiced the conduct of his defence and that there has been a miscarriage of justice as a result. He also argues that the sentence was manifestly excessive.
Leave to appeal
[2]Criminal Procedure Act 2011, s 232 and 250.
The appeal was brought out of time.[3] An affidavit has been filed explaining the circumstances. Mr Mohi was in custody and he had difficulty in obtaining a lawyer who was able to act for him. The Crown does not oppose the grant of leave and does not suggest that it is prejudiced by the delay. Accordingly, we grant leave to appeal out of time.
Factual background
[3]Sections 231(2) and 248(2).
The police alleged that Mr Mohi broke into a holiday house in Tokomaru Bay, a small settlement on the East Cape about 90 kilometres north of Gisborne. The house was not occupied at the time. It is owned by a retired couple.
One of the owners visited the house on 21 October 2017. A window adjoining the front door had been broken. The house had been entered. The television was still on; various household items had been moved; linen had been strewn around; drawers had been opened; the shower had been used; food left in the house had been cooked and eaten. The house had also been ransacked. There was significant internal damage, particularly to wall linings. The power had been switched off to the refrigerator and a freezer and the food stored in them had perished. Various items of property had been stolen.
Some of the stolen items were subsequently found in a laundry basket concealed on a neighbouring property.
At the trial, there was no dispute that a burglary had occurred. The issue was whether or not Mr Mohi was involved.
Conviction appeal
The failure to disclose
The Crown’s case against Mr Mohi turned on fingerprint evidence. His fingerprints were found on two items — a tape measure and a packet of padlocks — which belonged to the complainants and which had been moved from where they were usually kept. The packet of padlocks was normally kept in a cupboard in the garage. The packet was found on an internal staircase. The tape measure was always left on a set of shelves below the staircase. It was found on the floor in the garage under a bike.
The defence case was that Mr Mohi’s fingerprints could have found their way onto the two items in some other way, and that the presence of his fingerprints on two readily moveable items did not of itself establish beyond reasonable doubt that he had been involved in the burglary.
Prior to trial, the fingerprint evidence relating to the tape measure and packet of padlocks had been disclosed. It was also disclosed that five other fingerprint lifts had been obtained by the police, but that those lifts were not of sufficient quality to enable reliable matches to be made.
In the course of a luncheon adjournment during the trial, counsel then acting for Mr Mohi received a telephone call from the Crown prosecutor. The prosecutor advised that he had belatedly been told by the officer in charge that nine other fingerprint lifts had also been taken by the police at the time of the initial investigation. Defence counsel was told that these additional lifts had been taken from the upstairs area in the house. Four did not have sufficient detail to permit reliable examination. The remaining five lifts had been examined, and none of them matched Mr Mohi’s fingerprints.
At the time this further information was disclosed, the Crown’s fingerprint expert — Barry Smith — was in the middle of giving his evidence. Three other Crown witnesses had already given their evidence.
Immediately after the luncheon adjournment, defence counsel asked to see Judge Gibson in chambers. Counsel asked the Judge to declare a mistrial, based on the failure to disclose the additional fingerprint evidence. He also relied on other evidence that suggested that another officer had attended the scene, but that his notebook entries had not been disclosed. The Crown opposed the application, arguing there was no prejudice to Mr Mohi.
The application was declined by Judge Gibson. Unfortunately, we do not have a record of the ruling made, although there is a reference to a ruling in the transcript. Defence counsel has deposed that Judge Gibson expressed the view that there was no prejudice to Mr Mohi, and that the Judge suggested to defence counsel that he should elicit from Mr Smith evidence of the additional lifts belatedly disclosed, and the fact that none of them was a match for Mr Mohi’s fingerprints.
The trial proceeded and defence counsel cross-examined Mr Smith about the additional fingerprints. Mr Smith confirmed that he had been sent a further nine fingerprint lifts by a police officer, Constable Poi. Mr Smith said that four of the lifts were unsuitable for comparison. He said that the remaining five lifts were compared with Mr Mohi’s fingerprints and that none of them was a match. One of these lifts was run through the police’s fingerprint database, but the other four were not of sufficient quality to make this exercise worthwhile. It became clear in the course of cross-examination that Mr Smith had made notes recording his analysis of these additional fingerprints. Those notes had not been disclosed.
Defence counsel also asked Constable Poi about the additional fingerprint lifts. He confirmed that he had lifted the nine fingerprints and that he had submitted the lifts for analysis. He could not remember which items he had lifted the fingerprints from. He accepted that he had not made a note of this.
The trial continued. There was no application to recall any of the three witnesses who had already given evidence before the additional disclosure. Mr Mohi elected to neither give nor call evidence. He however did terminate the services of counsel assigned and chose to represent himself. He made his own closing address.
Notwithstanding that his retainer had been terminated, after the trial defence counsel sent an email to the Crown requesting further disclosure of any information about the additional fingerprints. He received a response from Constable Poi, attaching copies of what counsel presumed were entries from his notebook. Those entries did not satisfy counsel, and he sent a further email to Constable Poi and the Crown asking for yet further disclosure. He received a response from Crown counsel attaching an email from Mr Smith, along with copies of the additional fingerprint lifts that had been sent to him by Constable Poi. The disclosure indicated that some of the items from which the fingerprint lifts had been taken had been found on a neighbouring property, and not in the upstairs area of the burgled house. Defence counsel emailed the Crown on the same day to enquire further about this. A response was received approximately two weeks later. Crown counsel said that none of the additional fingerprint lifts had been taken from items found on the neighbouring property. Shortly thereafter, Crown counsel followed this initial response up with a further email to say that he had some doubts about his earlier response, that he would check with Constable Poi and get back to defence counsel. He did not do so.
Submissions
Mr Ross, for Mr Mohi, noted that the defence theory of the case was that Mr Mohi was not present, and the fact that his fingerprints were found on two items in the burgled house was not proof beyond reasonable doubt. It was argued that there were a number of scenarios which could have resulted in Mr Mohi’s fingerprints being found on the two items. He submitted that the fact that fingerprints were found which belonged to others strengthened Mr Mohi’s defence. He argued that the additional fingerprint evidence established that other people were present in the house. He put it to us that if adequate and timely disclosure had occurred, the defence would have been able to better consider the relevance of the additional fingerprints found.
He pointed to four possibilities that could have been explored:
(a)that Mr Mohi handled the tape measure and the packet of padlocks in a shop prior to their sale to the complainants;
(b)that the burglar(s) took the items when he/she/they committed the burglary, that the tape measure and padlock packet had been handled by Mr Mohi at another location and that Mr Mohi had returned them to the burglar(s);
(c)that the items belonged to the burglar(s), that Mr Mohi handled them at another location prior to the burglary, and that the burglar(s) took them to the burglary and left them there; and
(d)that Mr Mohi visited the house while the burglar(s) was there and touched the tape measure and the padlock packet.
Mr Ross argued that the defence was denied the ability to properly consider these possibilities. He noted that defence counsel, in cross-examining a police officer, Constable Lynch, elicited the fact the police had not undertaken any further investigation once Mr Mohi had been arrested. He noted that defence counsel had put three names to Constable Lynch and that he had confirmed that the police had not spoken to any of them. He submitted that there may well have been a miscarriage of justice and that the appeal should accordingly be allowed.
Mr Carruthers, for the Crown, submitted that the late disclosure did not hinder Mr Mohi in advancing his defence, and suggested that Mr Mohi cannot point to anything material that he would have been able to achieve had he received the disclosure in a timely fashion.
Analysis
The purpose of the Criminal Disclosure Act 2008 is to promote the fair, effective and efficient disclosure of relevant information between the prosecution and the defence (and by non-parties) for the purposes of criminal proceedings.[4] Disclosure takes place in two stages: initial disclosure and then full disclosure.[5] Disclosure promotes a defendant’s right to a fair trial and equality of arms.[6] There is a positive obligation on the prosecution to disclose information in its possession or under its control. The prosecution is required to approach its disclosure obligations not as an adversary, but as a “minister of justice” that holds information to ensure that justice is done rather than for the purpose of securing a conviction.[7]
[4]Criminal Disclosure Act 2008, s 3(1).
[5]Sections 12 and 13.
[6]R v Sullivan (No 10) [2014] NZHC 1105 at [9].
[7]At [34].
Here, the Crown concedes that full disclosure was not made in a timely fashion.
There can be various consequences if a party fails to disclose information in accordance with the Act.[8] The Court can exclude the undisclosed evidence, adjourn the trial (with or without requiring the evidence to be disclosed), or admit the evidence.[9] A party’s failure to comply with disclosure requirements can be dealt with as a contempt of court.[10] The court can adjourn a trial or discharge a jury if a defendant is prejudiced by a surprise witness.[11] Failure to disclose relevant information can result in a trial being aborted.[12]
[8]See Simon France (ed) Adams on Criminal Law — Procedure (looseleaf ed, Thompson Reuters) at [CD3.02].
[9]Criminal Disclosure Act, s 34(2).
[10]Sections 32(3)(b), 32(4) and 34(4).
[11]Criminal Procedure Act 2011, s 113.
[12]See R v Bublitz [2017] NZHC 1059.
Non-disclosure can provide grounds for a successful appeal, but non‑disclosure in itself does not automatically mean that a miscarriage of justice has occurred. The critical issue in any given case will be whether or not the non-disclosure was material so as to give rise to a risk of a miscarriage of justice.[13]
[13]Olsen v R [2017] NZSC 18 at [16] (dismissing an application for leave to appeal); and B v R CA351/01, 19 March 2002 at [26].
We are not persuaded in this case that the late disclosure was material, or that there was any significant prejudice to Mr Mohi. As a result, we do not consider that there was a risk of a miscarriage of justice.
First, we note that the additional fingerprint evidence is not additional evidence implicating Mr Mohi in the offending. It suggests that others may have been involved as well. It did not however matter whether Mr Mohi was the principal acting alone or was a party to the burglary with others. The issue at trial was whether Mr Mohi was involved and the additional fingerprint evidence does not bear on this.
Secondly, it was contended for Mr Mohi that had he known that fingerprints other than his had been lifted from the house, he may have been able to explore other possible defences. Three possible avenues of inquiry were advanced.
(a)It was argued that Mr Mohi may have been able to better explore the possibility that the items on which his fingerprints were found were handled by him in another location, prior to the burglary. This defence was however advanced at trial. It was put to the fingerprint expert, Mr Smith. His evidence was as follows:
Q.It’s entirely possible isn’t it that the defendant could have touched these items at an earlier occasion, for example when they were in a shop, warehouse, before they were transferred to the property?
A.So you’re suggesting that they were touched by the defendant somewhere else –
Q. It’s entirely possible isn’t it?
A.– and then find them themselves in the scene, crime scene? That – I’m just trying to just clarify what you’re saying, that’s all.
Q. That’s possible isn’t it?
A.Well it depends on really how good your imagination is. I think that’s quite far-fetched but I will say yes, it’s possible.
…
THE COURT:
Q.Why would it be far-fetched? I mean if for instance the locks had been bought a month before and they had been on display in a Smith City?
A.Yes I understand. So items on display in the shops may or may not have been handled by numerous people. Every time it’s handled you’re going to overwrite what’s there. You’re going to smudge – not necessarily overwrite, you’re going to interfere with it in some way because, say something’s hanging on display, most people are going to go for it in the same way. The usual, usual way. So you – they’ll put it back. You could lift it up. You put it back. Whatever it may by. It’ll be customary for it – to pick it up in a certain way. The more often that’s done the greater the chance of destroying what’s already there. So I suppose you could say the last person to touch it would leave the print on the top. And then the item will have to be purchased by somebody, taken off the shelf again, perhaps given to the shop assistance, perhaps, bagged. How has it been stored between where it is in the shop and where it goes to, how has it been packaged? How has it been handled? It’s unlikely that anything would remain undamaged in that circumstance because of the number of handlings.
CROSS-EXAMINATION CONTINUES
…
Q.… You can’t be sure that just because the defendant’s fingerprints were found on these two items, that he was the last person to touch them can you?
A. No. I can’t be sure.
Clearly this prospective defence was before the jury. It was dealt with fully by Mr Mohi in his closing address, and fairly put by Judge Gibson in his summing up. It was rejected by the jury. The availability of the defence was not affected by the late disclosure.
(b)It was argued that Mr Mohi may have been able to better explore the possibility that he handled the tape measure and the packet of padlocks when offered them by the burglar(s) after the burglary. We do not consider that this is a realistic suggestion. It would require the jury to accept as a reasonable possibility that the burglar(s) took the items from the property and gave them to Mr Mohi, that Mr Mohi handled them, and then returned them, that the burglar(s) accepted their return, then returned to the house, and left the items where they were ultimately found. In our view, this argument is intrinsically implausible. Further, this prospective defence was available regardless of the late disclosure.
(c)The third prospective defence it was suggested could have been better explored was that Mr Mohi handled the items, which actually belonged to the burglar(s), at another location and prior to the burglary, and that the burglar(s) then took them to the burgled house and left them behind. The difficulty with this suggested defence is that it ignores the complainant’s evidence that the items were his. As noted above, he not only confirmed ownership but was also able to describe in some detail where he had left the items. The suggested defence is inconsistent with that evidence, is intrinsically implausible, and was not precluded by the late disclosure.
(d)It was argued that the defence could have better explored the possibility Mr Mohi visited the house while the burglar(s) were there and handled the items. Again, there is an air of unreality to this suggestion. The complainant confirmed that Mr Mohi did not have his authority to be in the house. There would still have been an offence committed — depending on Mr Mohi’s intent it may have been burglary, or perhaps being found in a building without lawful excuse. More importantly, this possible defence was open to Mr Mohi whether or not the additional fingerprint evidence was disclosed.
Mr Mohi’s fingerprints were found only on moveable items. His ability to effectively advance any of the suggested lines of defence did not turn on him knowing in advance that additional fingerprint lifts had been taken, or whether they were taken in the house or from property found near the house.
The appeal against conviction is dismissed.
Sentence appeal
Judge Gibson in his sentencing notes referred to the relevant facts. He noted that Mr Mohi has an appalling criminal history, comprising some 80 convictions.[14] He also noted that Mr Mohi has an extensive history of non-compliance with court orders and that, according to the probation officer who interviewed Mr Mohi, he has a “strong sense of entitlement”.[15] The Judge recorded that there is no tariff case for the burglary of a residential property, but that this Court’s decision in Arahanga v R, is generally regarded as assisting with identifying the appropriate starting point.[16] The Judge observed that the starting point indicated there for dwelling house burglaries is between 18 months’ imprisonment and two and a half years’ imprisonment.[17]
[14]Sentencing notes, above n 1, at [1].
[15]At [6].
[16]At [8]; citing Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
[17]At [8].
He noted the aggravating features of Mr Mohi’s offending, including the significant damage caused, and the length of time Mr Mohi apparently spent in the property.[18] He accepted that the risk of confrontation with occupiers was low.[19] Taking all of these matters into account, he adopted an overall starting point of two years and three months’ imprisonment.[20] He referred to s 9(j) of the Sentencing Act 2000 and imposed an uplift of three months, commenting that this was modest because he wanted to give Mr Mohi some credit for what he considered were “hopeful aspects” in his life.[21] He imposed an end sentence of two years and six months’ imprisonment.[22]
Submissions
[18]At [12].
[19]At [13].
[20]At [14].
[21]At [15].
[22]At [17].
Mr Ross submitted that the starting point adopted by Judge Gibson was too high, and that the increase for his previous convictions was unwarranted, because the only relevant recent offences were two relatively minor burglaries. He also argued that the additional fingerprint evidence showed that others were present, and that the extent to which the aggravating characteristics of the burglary could be attributed to Mr Mohi was not explored by Judge Gibson.
Analysis
In our judgment, the sentence imposed by Judge Gibson was not manifestly excessive.
The starting point adopted by the Judge is consistent with the approach taken by this Court in Arahanga, where the burglary was coincidentally of a bach or holiday home as well. It was there noted as follows:[23]
[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months'to two years and six months' imprisonment.
[23]Arahanga v R, above n 16 (footnotes omitted).
The aggravating features noted by the Judge cannot be denied. There was significant and wanton damage to the house and its contents. The house was occupied for some indeterminate period and items in it were used. It does not matter whether Mr Mohi was the principal offender or a party to the burglary along with another or others. The starting point adopted by the Judge was within the available range.
In regard to the uplift for previous convictions, the Judge was clearly aware that only a few of Mr Mohi’s previous convictions are for burglary. By our count, there have been seven prior convictions for burglary, although many of them were a number of years ago. The most recent burglary was in April 2015. Mr Mohi was required to come up for sentence if called upon for a period of one year. It was clearly minor offending. Prior to this, the most recent burglaries were in 2004. Mr Mohi does have in excess of 80 previous convictions, many of which are for dishonesty related offending, including receiving, theft, shoplifting, unlawfully taking motor vehicles, using a document for pecuniary advantage and the like. We consider that Judge Gibson was perhaps a little stern in imposing a three month uplift for the prior offending, but as against this, we observe that the Judge did not impose an uplift for the fact that the burglary was committed while Mr Mohi was on bail, albeit in respect of offences which, it seems were not ultimately proved against him. It would nevertheless have been open to the Judge to treat this as an aggravating factor, and to have uplifted the sentence accordingly.[24]
[24]Where there has been delay in the disposition of proceedings caused by the failure of the prosecutor to, inter alia, comply with the Criminal Disclosure Act, and such delay has had adverse effects on the offender, this can be a mitigating factor for sentencing: see Sentencing Act 2002, s 9(2)(fb) and 9(2)(fb). In the present case, the failure by the prosecutor to comply with the Criminal Disclosure Act did not cause any delay in the disposition of the proceedings and there were no adverse effects on Mr Mohi.
In our view, in the round, the sentence imposed was within the available range.
The appeal against sentence is dismissed.
Result
The application for an extension of time to appeal is granted.
The appeals against both conviction and sentence are dismissed.
Solicitors:
Cathedral Lane Law, Napier for Appellant
Crown Law Office, Wellington for Respondent
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