Morrell v The Queen

[2004] NZCA 180

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/03
CA372/03

THE QUEEN

v

TROY SAMUEL MORRELL
PATRICK COOK

Hearing:22 and 25 June 2004

Coram:McGrath J
William Young J
O'Regan J

Appearances:  R D Stone for Morrell

G J King for Cook
J C Pike for Crown

Judgment:11 August 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       At around 11.00pm on 28 October 2002, three men entered the premises of Tommo’s Restaurant and Bar in Hastings.  One was carrying what appeared to be a black pistol equipped with a silencer.  Another was armed with a sharpened knife.  They confronted the manager and demanded money.  The manager co-operated but he was also able to make surreptitious contact with the owner using his cell-phone.  This resulted in the owner coming to the restaurant and this effectively brought the robbery to an end.  The three men left the restaurant.  Parked nearby, beside a Mobil garage, was a stolen Subaru Legacy station wagon in which a fourth man, their accomplice, was waiting.  The robbery netted the robbers $3,500.  In the course of the robbery, the offenders used force (at a reasonably low level) against the manager.  At one stage when the manager was not being particularly co-operative about opening the safe, the man with the gun indicated that he was going to shoot him and told the robber who had the knife to stand away to avoid being covered in blood.

[2]       The robbery was preceded by a telephone call to the Mobil garage in which the caller wished to check the time the garage was going to shut.  The purpose of this call was to ensure that the garage would be shut at the time of the robbery and the call was therefore linked to the robbery. 

[3]       As a result of these events, the two appellants, Troy Samuel Morrell and Patrick Michael Cook and two other men, Matene Haapu and Matthew James Kinderlan, were indicted in the District Court at Napier before Judge Rea on counts of aggravated robbery and car conversion.  The Crown case was that the three men who entered the restaurant and bar were Cook (who had the pistol), Kinderlan (who was armed with the knife) and Morrell and that Haapu was the get-away driver.  

[4]       Haapu pleaded guilty on arraignment and Kinderlan changed his pleas in the course of the trial.  The trial continued in relation to the two appellants who were found guilty on both counts.  They were both sentenced by Judge Rea to seven years imprisonment.

[5]       Cook and Morrell now appeal against conviction and Cook appeals against sentence.

The evidence in the District Court

[6]       The Crown case at trial depended very substantially on the evidence of Michael Scott.

[7]       At the time of the robbery he was 17.  He was living with his mother and sister in Hinau Street, Hastings.  Kinderlan was also living in the house and Haapu was a friend of both young men.

[8]       Michael Scott’s evidence was along these lines.

[9]       On the night of the robbery, Kinderlan and Haapu came to the Hinau Street house with two other men whom he had not previously met.  He said that that one man was introduced to him as “Troy ”. The drift of his evidence suggests that the other man was introduced to him as either “Pat” or “Pat Cook”.  He identified the two appellants in the dock as being these men.  They had arrived in Morrell’s car and left after about 20‑25 minutes.  They then returned, with Haapu and Cook in a Subaru Legacy station wagon and Kinderlan and Morrell still in Morrell’s car.  The four men then put on hoodies, balaclavas, hats, gloves and overalls and picked up from the back of Kinderlan’s car a black bag containing, inter alia, a roll of black tape, a knife and black BB pistol equipped with a silencer.  They then left in the Subaru.

[10]     Sometime later they all returned.  They changed. Morrell handed Kinderlan some money and then left.  Cook asked Michael Scott to spray the lawn with a hose and Kinderlan spread pepper around. Cook and Haapu left and Kinderlan stayed the rest of the night at the Hinau Street house.

[11]     The next day Cook came around to Hinau Street and Michael Scott had a discussion with him for about half an hour before he left.

[12]     As is perhaps apparent from this narrative, Michael Scott was, at the time, living very much on the edge of the law.  In mid-October 2002 he had committed a burglary (of a Taradale liquor store) with Kinderlan, Haapu and a fourth person.  Around the same time, he had also given false particulars to a police officer.  It seems that he was probably an accessory after the fact of the robbery in that his hosing of the lawn was obviously intended to put off the scent any police dog which might have been deployed.  He was thus potentially subject to prosecution.

[13]     There was some other circumstantial evidence which provided some support for the prosecution case.  The Subaru Legacy station wagon was stolen shortly before the robbery.  The phone call to the Mobil garage, which was plainly a precursor to the robbery, was made from the Hinau Street house occupied inter alia by Kinderlan and Michael Scott.  Some items associated with the robbery were found at Hinau Street.  There was a pattern of telephone calls apparently involving the various defendants in respects which were at least consistent with the Crown case.  Not long after the robbery Cook spent money buying a new car.  Morrell’s partner had worked at Tommo’s and the manager knew Morrell by sight.  On the Crown case, this explained not only the very minimal role played by the third man (alleged by the Crown to be Morrell) inside the restaurant during the robbery but also some knowledge which the robbers appeared to have about the operation of the restaurant.  The case against Cook or Morrell, however, stood or fell on the basis of Michael Scott’s evidence. 

[14]     Morrell, when interviewed, claimed to have an alibi on the night of the robbery which he said would be provided by his partner Christine Lloyd.  He claimed to have been using a PlayStation at the time of the robbery.  He also, according to the interviewing detective, admitted having changed the appearance of his hair after the robbery but before his arrest.

[15]     Cook departed hurriedly through a window when he saw the police arrive at his house to arrest him.  When told that he was being arrested for the Tommo’s robbery, he indicated that he had assumed that the police were after him in relation to something else.  He did not otherwise make a statement to the police as to the allegations against him. 

[16]     Neither Cook nor Morrell gave evidence.  Morrell, however, called alibi evidence from his mother (rather than Christine Lloyd) but which was otherwise broadly consistent with what he told the police.  He also called evidence as to his appearance at the time of the robbery.

The conviction appeal by Patrick Cook

General

[17]     Although a number of grounds of appeal were signalled, Cook’s conviction appeal as argued was based solely on alleged incompetence of counsel.

The complaints against counsel

[18]     Cook was represented at trial by Mr Ken Daniels. 

[19]     The complaints against Mr Daniels are as follows:

1.Failure to cross-examine Michael Scott adequately as to identification and credibility and to object to the way in which the Crown prosecutor led identification evidence from the restaurant manager;

2.Failing to follow instructions as to calling Cook as a witness, following up on a possible alibi which Cook’s partner could give and calling evidence as to Cook’s appearance.  As well, an alternative defence theory which Mr Daniels advanced to the jury was said to have been put forward contrary to Cook’s instructions.

3.Generally inadequate preparation.

[20]     Mr Daniels cross-examined Michael Scott in a very limited way.  He did not squarely challenge his credibility.  In particular he did not cross-examine him on his prior convictions, his role in the robbery and his motive for giving evidence (which may have been associated with a desire not to be prosecuted in relation to that role).  Nor did he make a determined challenge to the reliability of the identification.  Michael Scott’s evidence at trial went a little further in some respects than his initial statement and depositions evidence but he was not challenged on these variations.

[21]     Mr Daniels did however, cross-examine Michael Scott to establish that he had told police that the man to whom he referred as “Pat Cook” was about 5 foot 11 inches.  The restaurant manager described the gunman (who on the Crown case was Cook) as being a “dark-skinned Maori man” who was about 5 foot 10 inches.  The owner of the restaurant (who came to the restaurant as a response to the manager’s telephone call) initially described the gunman to the police as being about 5 foot 4 inches in height, a point which was extracted from him by Mr Daniels in cross-examination.  We note that Cook is 6 foot 1 inches in height.

[22]     Despite his very limited cross-examination of Michael Scott, Mr Daniels addressed the jury on behalf of Cook in a forthright manner.  According to the Judge, Mr Daniels said of Michael Scott that “he was in it up to his neck”.  He advanced the defence on the basis that the jury could not be satisfied that Cook had been at the Hinau Street house.  But he also advanced the theory that even if Cook had been present at the Hinau Street house it did not follow that he was one of the robbers. 

[23]     Cook claimed in his affidavit to this Court that Mr Daniels failed to follow instructions in the respects already set out.  He said that he was not called to give evidence despite his wish to do so.  He also claimed that his partner, Ms Raina Davis, could have provided an alibi but that this was not followed up by Mr Daniels.  Cook maintained that his appearance at the end of October 2002 was not as described by Michael Scott and did not match the description of the man with the gun given by the restaurant manager.  He provided Mr Daniels with a copy of the photograph taken by the police on his arrest (which was on 5 November 2002).  He says that Ms Davis could have supported his defence on this point.  He complained that an alternative defence theory advanced to the jury (along the lines that even if the evidence of Michael Scott was correct, it did not necessarily follow that Cook was guilty of the offences alleged) was advanced contrary to his instructions.  He also alleged there was a general lack of preparation.

[24]     There is also reference in the affidavits to Mr Daniels having sought an additional payment from Cook and/or his partner on top of what he was to be paid by the Legal Services Agency, to him having been paid $100 which he later refunded and some general dissatisfaction on both sides associated with this.  This is only of peripheral significance because the real issue which we must address is the quality of Cook’s representation at trial.

[25]     Mr Daniels swore an affidavit in which he denied most of the allegations made by Cook.  He said that he believed that he had seen the appellant twice before trial at Mangaroa prison and had also spoken to him on the telephone.  He claimed he was adequately prepared and had thought through his trial strategy.  He denies that Cook insisted on giving evidence.  Mr Daniels said he advised strongly against Ms Davis giving evidence in relation to the proposed alibi.  She did not wish to give evidence.  He says that it was never proposed that Ms Davis give evidence as to Cook’s appearance at the time of the robbery.

[26]     The affidavit from Mr Daniels did not squarely address all the complaints made against him.  For instance he did not deal (at least in any detail) with the allegation that he did not pursue the theory that Cook’s appearance at the time of his arrest, as indicated by the police photograph of him, did not match the descriptions given by the restaurant manager and Michael Scott.  He did not address at all the complaint that his alternative argument to the jury was advanced contrary to instructions.

[27]     There was no cross-examination on the affidavits.  This meant that Mr Daniels was not cross-examined on those parts of his affidavit where he rejected, in forthright terms, some of the complaints made by Cook.  Likewise, however, Cook was not cross-examined on the conflicts between the two affidavits.  Further, there is an evidential lacuna, from the point of view of the Crown, in relation to those allegations made by Cook to which Mr Daniels did not respond specifically in his affidavit.

[28]     The complaint about Mr Daniels’ failure to object to the way in which the Crown prosecutor led identification evidence of the restaurant manager was not signalled in Cook’s affidavit and was therefore not commented on by Mr Daniels in his affidavit.  The point was raised rather simply by Mr King in his submissions on behalf of Cook and based on the transcript of the hearing in the District Court. 

The principles

[29]     The relevant principles are clear.  It is sufficient to refer to what this Court said in R v S [1998] 3 NZLR 392 at 394-395:

The Court must guard against any tendency on the part of accused persons who have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel. See R v Pointon [1985] 1 NZLR 109 at p 114. Two principal ways in which an appeal based on counsel’s conduct at the trial can succeed, however, have been recognised; one is where counsel fails to follow instructions, and the other is where counsel has made a radical mistake.

A counsel does not have the right to disregard instructions from his or her client. See R v McLoughlin [1985] 1 NZLR 106 at p 107. If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed and conveyed. See R v Lavery (Court of Appeal, Wellington, CA 342/95, 14 February 1996) at p 5. It must be clear that the instructions were not simply an expression of the client’s views on a particular matter but were intended to be directions to be observed and implemented by counsel. They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage. It is not enough, for example, for an accused to tell trial counsel that he or she “wants” or “wishes” a particular witness to be called. See Byford v R (Court of Appeal, Wellington, CA 74/93, 25 June 1993) at pp 3 – 4. Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice. See R v Reti (Court of Appeal, Wellington, CA 396/91, 22 November 1991) at p 9 et seq.

The other respect in which an appeal based on counsel’s conduct can succeed arises in those rare cases where the mistake in the conduct of the defence is so radical that a miscarriage of justice under s 385(1)(c) of the Crimes Act 1961 is made out.  See R v Pointon (supra) at p 114. In order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial. See R v Horsfall [1981] 1 NZLR 116 at p 123.

We see these principles as equally applicable where lack of preparation is alleged.

[30]     For Cook’s appeal to succeed on this line of argument, he must establish:

1.        Either:

(a)counsel failed to comply with clear instructions as to the conduct of the trial; or

(b)there were radical errors (including if necessary lack of preparation) in counsel’s conduct of the case; and

2.Counsel’s errors in either respect led to a miscarriage of justice.

Evaluation

[31]     There is no doubt that Mr Daniels took a minimalist approach in his cross‑examination of Michael Scott.  But there is a context in which this must be assessed:

1.It does not seem probable that Michael Scott was mistaken. On his evidence he had seen Cook three times on the night of the robbery and had spoken to him for around half an hour the next day.

2.It would not be entirely easy to come up with a credible theory as to why Michael Scott would have falsely accused Cook of the robbery beyond saying that his own involvement in the robbery and/or its aftermath provided a motive.  But while these considerations may have given Michael Scott a motive to minimise his own involvement in what happened, it is not clear why they would have encouraged him to make a false allegation against Cook.  The two men had not met prior to the night of 28 October.  Michael Scott is a much younger man - effectively just a boy at the time.  The more focused the challenge to Michael Scott became, the more the jury was likely to focus on the implausibility of the underlying theory.

3.Both Kinderlan and Haapu had made statements to the police in which they identified Cook as a participant in the robbery.  Haapu had pleaded guilty on arraignment and it would perhaps have been possible for the Crown to have called him as a witness.  We do not know what his attitude would have been had he been called.  Kinderlan did not plead guilty until after Michael Scott completed his evidence.  Had he not pleaded guilty, the jury would have heard his confession.  Possibly the confession would have been edited so that the men referred to by Kinderlan as Morrell and Cook might perhaps simply have been referred to as “A” and “B” or something similar.  It is difficult, however, to see how that confession could have been legitimately edited so as to obscure from the jury the fundamental reality that it supported Michael Scott’s evidence.  Although Kinderlan’s confession was irrelevant and inadmissible against Cook, Mr Daniels could hardly ignore the associated realities in relation to his conduct of Cook’s defence.  A full scale attack on the credibility of Michael Scott might well have resulted in some jury irritation if the jury were later to hear Kinderlan’s confession. 

[32]     There is an element of unreality to the suggestion that the defence should have been conducted along the lines now suggested by Cook with a full scale attack on Michael Scott and with Cook then giving evidence.  This sort of defence would have exposed Cook to cross-examination on, inter alia, the implausibility of the theory that Michael Scott would have lied, perhaps on his previous convictions (which are many and serious) and as to the fact that when first approached by the police he ran off.

[33]     The way in which Mr Daniels conducted the defence meant that he did not give Michael Scott additional opportunities to implicate Cook or otherwise to explain himself.  As it turned out, however, Mr Daniels was nonetheless able to mount a full-scale attack on Michael Scott in his address to the jury and thus in a context in which Michael Scott was not in a position to respond.  We certainly have reservations whether that attack was appropriate given the failure by Mr Daniels to confront Michael Scott in cross-examination and, indeed, these reservations would appear to have been shared by the Judge given the way in which he summed up.  The Judge’s comments on this point, however, were mild.  From the viewpoint of Cook, the defence was certainly conducted in an effective and risk limiting way.  In those circumstances, we do not see the minimalist nature of Mr Daniels cross-examination of Michael Scott as being a radical error. 

[34]     The complaint about failure to object to the way in which the prosecutor led evidence with the restaurant manager as to identification particulars relating to the gunman strikes us as being no more than a make-weight.  The prosecutor effectively led the restaurant manager on these particulars but the evidence could equally well have been obtained (and perhaps would have been more effective in its delivery) if the prosecutor had allowed the restaurant manager to tell the story in his own words but refreshing his memory from the statement which he no doubt had made to the police. 

[35]     The complaint as to general lack of preparation cannot succeed given that Mr Daniels was not cross-examined on his affidavit. 

[36]     That leaves in the ring the complaints made by Cook regarding Mr Daniels’ alleged failure to follow instructions. 

[37]     We are not satisfied that there was any failure to follow instructions as to the calling of Cook and Ms Davis as witnesses as to the following up of the alibi defence.  Mr Daniels has addressed those allegations in his affidavit and has not been cross-examined.

[38]     Remaining for consideration are the allegations made by Cook that Mr Daniels failed to follow instructions in relation to the investigation of his appearance and particularly the use of the police photograph and as to the alternative line of defence.

[39]     As we have indicated, Mr Daniels in his affidavit did not squarely and explicitly address these complaints and in the unsatisfactory situation which the absence of cross-examination has left us, we are required to proceed on the basis that there were failures to follow instructions in these respects.

[40]     The issue of Cook’s appearance at trial is closely associated with the general conduct of the case and in particular whether Mr Daniels’ minimalist approach was right.  Mr Daniels could have put in evidence the photograph taken by Cook on his arrest.  If he had done that, however, he would have been required to show the photo to Michael Scott when he was giving evidence, thus providing another identification opportunity.  By his cross-examination, he was able to show very clearly that there were discrepancies in the initial descriptions by the key Crown witnesses of the man alleged by the Crown to have been Cook.  We have referred already to the relevant evidence which was given.  Cook, as we have noted, is 6 foot 1 inches in height and our perusal of the transcript suggests that the height descriptions given by the Crown witnesses were recognised as not being an accurate match for his height. 

[41]     As we have said, the mistaken identification theory was thin to say the least.  On the assumption that there was a failure in this respect to follow instructions, we do not see any associated risk of a miscarriage of justice.

[42]     The complaint as to the alternative defence theory fails on the same ground.  The alternative theory advanced by Mr Daniels to the jury does not seem to us to have been particularly plausible.  But assuming, as we must, that the jury approached the case conscientiously, there is no reason to suppose that a slightly silly theory advanced by Mr Daniels in his closing address would have prejudiced the jury against Cook or in any way contributed to a miscarriage of justice.

[43]     So, to the extent to which there was any failure to comply with instructions in the respect mentioned, we see no risk of a miscarriage of justice.

Conclusion as to Cook’s appeal against conviction

[44]     Accordingly, the appeal by Cook against conviction is dismissed.

Morrell’s conviction appeal

The basis of the appeal

[45]     Morrell’s appeal against conviction proceeded on the basis that there was new evidence now available in light of which he is entitled to a re-trial.

The relevant evidence

[46]     The new evidence relied upon by Morrell comes from Mr Earl Campbell.  He swore an affidavit and gave oral evidence before us.

[47]     He said that in October 2002 he had several discussions with Michael Scott, one of which also involved Kinderlan.  In early October Michael Scott told him that he was planning a robbery with his friends “Matt” (a reference to Kinderlan) and “Marty” (apparently a reference to Haapu).  He said that subsequently, on or about 4 November 2002, he had a discussion with Michael Scott and Kinderlan at Cornwell Park and that, in the course of this discussion, Michael Scott referred to having done a “big mission” with Kinderlan, a comment which resulted in Kinderlan telling Michael Scott to shut up.  There was also some discussion about Kinderlan having a BB gun at home equipped with a silencer.

[48]     Michael Scott swore an affidavit in response upon which he was cross‑examined.  The drift of his evidence was that he acknowledged having discussions which he eventually conceded must have been in October 2002 with Earl Campbell in which he discussed or mentioned a “robbery” but says that the discussions related not to the Tommo’s robbery but rather to the burglary of the Taradale liquor store.  He claimed not to know the difference between burglary and robbery.  We note in passing that the burglary of the Taradale liquor store involved the offenders smashing their way in through the front of the store with a crowbar.  In that context, the word “robbery” in relation to the burglary might be thought to have been not entirely inapt.  Michael Scott also denied in evidence that any of the discussions he had with Earl Campbell occurred on 4 November 2002.

[49]     There was a good deal of cross-examination of both men. 

[50]     We have major reservations as to the level of detail which each claimed to recall of the discussion or discussions in issue.  However, we do not see the outcome of the appeal as turning on questions of fine detail.  It is clear, even on Michael Scott’s evidence, that he had discussions with Earl Campbell which could fairly have led Earl Campbell to suspect that he had had an involvement in the Tommo’s robbery.  Indeed, it is perfectly clear that this is what Earl Campbell thought at the time because there is a job sheet of a discussion between Earl Campbell and a police officer which took place on 5 November 2002 in which Earl Campbell nominated Michael Scott and Kinderlan as suspects in relation to the robbery.  Further, given that Earl Campbell is recorded in the job sheet as having referred to a discussion the preceding day (ie 4 November) with both Michael Scott and Kinderlan at Cornwall Park we are inclined to accept that aspect of his evidence as well.

The principles

[51]      The general principles as to appeals based on new evidence are well established.  The Court has the power to hear fresh evidence pursuant to s 389(b) of the Crimes Act 1961.  The Court usually requires that such new evidence is “fresh” meaning that it was not available at trial and that it also be credible and cogent in the sense that if given at trial it may have resulted in a different verdict.  The statutory basis for allowing an appeal relating to new evidence is provided for by s 385(1)(c) of the Crimes Act, which requires this Court to allow an appeal if it is of the opinion:

That on any ground there was a miscarriage of justice; …

This language necessarily involves some flexibility and the necessity to have regard to the interests of justice generally, and these include not only factors personal to the position of the appellant but also systemic considerations.  In this context reference can usefully be made to this Court’s judgment in R v Bain [2004] 1 NZLR 638 at paras [18]-[26].

[52]     As noted in R v Power (CA 187/96, 22 October 1996) there is no fixed test for when fresh evidence should be admitted on appeal.  In the end the Court must determine what course will best meet the interests of justice in any particular case.  The general principles are summarised in R v Crime Appeal (1988) 3 CRNZ 512, 513 as follows:

The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s 385(1)(c) Crimes Act which provides that the Court shall allow an appeal against conviction if it is of opinion that on any ground there was a miscarriage of justice.  This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient to establish that there was a miscarriage of justice at the trial.  The overriding test must be the interests of justice (R v Arnold [1985] 1 NZLR 193, 196). In general the evidence must be new or fresh in the sense that it was not available at trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict (R v Fryer [1981] 1 NZLR 748, 753 and the cases referred to there).

[53]     In relation to appeals advanced on the basis of evidence from a new witness, Adams on Criminal Law states (at 684-5):

Where the evidence subsequently sought to be adduced is to be given by a person who did not give evidence at trial, the evidence will clearly be “new” and attention will be directed to whether it was “available” at the time of the trial.  While no single test has been, or perhaps can be, laid down, an applicant who seeks to adduce the new evidence will need to show either that he or she did not know of the existence of the evidence at the time of the trial and could not, with the exercise of due diligence, have discovered its existence, or that there was some special element in the circumstances which justifies the Court in excusing the failure to adduce the evidence at trial.

[54]     So in approaching this appeal it is appropriate for us to consider whether the evidence of Earl Campbell is “new” and cogent.

Is the evidence of Earl Campbell relevantly “new”?

[55]     The police job-sheet of 5 November 2002 was made available to defence counsel.  From that job-sheet, counsel would have appreciated that Earl Campbell claimed to have had a discussion with Michael Scott and Kinderlan on 4 November 2002 and that on 5 November he nominated both as suspects in relation to the robbery.

[56]     It is true that Earl Campbell’s evidence to this Court provided the detail as to why he suspected Michael Scott of involvement in the robbery – detail which was not in the job sheet.  But the job sheet made it perfectly plain that Earl Campbell did suspect that Michael Scott was involved in the robbery and it might be thought to follow that an enquiry of Earl Campbell would have easily established the reason for his suspicion.

[57]     Against that background, it is difficult to regard Earl Campbell’s evidence as “new” given that, with reasonable diligence, it could have been located at the time of the trial.

Is the evidence of Earl Campbell relevantly cogent?

[58]     We accept that the evidence of Earl Campbell, if given at trial, would have provided another basis for the contention that Michael Scott was a participant in the robbery.

[59]     In assessing the significance of this, we start by observing that it was, in any event, open to counsel for both Cook and Morrell to make an attack on Michael Scott which was far more detailed than what eventuated.  We have already referred to the minimalist cross-examination of Michael Scott by Mr Daniels.  Cross-examination of Michael Scott by counsel for Morrell was more detailed but hardly confrontational.  On Michael Scott’s own evidence, he was probably an accessory after the fact to the robbery, a point which was touched on but not developed by counsel for Morrell in cross-examination.  Further, on the statement made by Haapu, Michael Scott made the telephone call to the Mobil garage which preceded the robbery and if this was true (and Michael Scott denied having done this in his evidence-in-chief at trial) then conceivably he was a party to the aggravated robbery itself.  We note that at the depositions hearing Michael Scott was cross-examined by counsel for Haapu on the basis that he had made this telephone call.  There was no such cross-examination of Michael Scott on this point at trial and this was presumably for good reason.

[60]     So what impact would it have made on the trial if counsel for Morrell was aware that Earl Campbell could give evidence indicating that Michael Scott had spoken to him in terms which were consistent with having been involved in the robbery?

[61]     We think it would have added very little.  As indicated, Michael Scott was probably involved to some extent in the robbery (as an accessory after the fact) in any event.  So the jury would have approached Michael Scott’s evidence on the basis that he was, at the relevant time, on the edge of the law.  In the event that Earl Campbell had given evidence, Michael Scott would have been able to explain to the jury, as he did to us, that Earl Campbell had misunderstood him.  The jury would also have had to allow for the possibility that Michael Scott may, in any event, in his discussions with Earl Campbell have been exaggerating such role as he had in the events of 28 October.  In that context it is far from clear whether defence counsel would have departed from the minimalist strategy which was adopted to follow up on the Earl Campbell evidence, and, on our assessment, very unlikely that Earl Campbell’s evidence, if led, would have made any difference to the jury’s assessment of Michael Scott’s credibility.

[62]     We recognise that there is another possible dimension to this issue.  The Crown case at trial is that four men were actively engaged in the robbery: Cook, Kinderlan and Morrell inside the restaurant and Haapu as the get-away driver.  If one of the men directly involved in the robbery was Michael Scott, then, allowing for the pleas of guilty by Haapu and Kinderlan, it would follow that one or other of Cook or Morrell could not have been involved.

[63]     The suggestion that Michael Scott was one of the four men actively involved in the robbery could not ethically have been put to him in cross-examination without counsel having a proper basis for doing so.  Taking a commonsense view of the dynamics of the situation at and immediately before trial, we believe that if there had been a proper basis for that suggestion, counsel for Morrell and Cook would have been aware of it.  We doubt whether in the context of the case as a whole, the evidence which Earl Campbell could have given, would have provided a proper basis for that suggestion.  Indeed it is interesting to note that in this Court counsel for Morrell, when cross-examining Michael Scott, did not suggest to him that he had actually been one of the men directly involved in the robbery.

[64]     In that context we see the cogency of the new evidence as more theoretical than real.

An overall evaluation

[65]     As indicated earlier, the fundamental question is whether there was a miscarriage of justice and questions whether the evidence in question is “new” or cogent require flexible assessment. 

[66]     Given our view that the evidence of Earl Campbell could have been obtained with reasonable diligence and is of limited cogency, we conclude, without difficulty that there has been no miscarriage of justice. 

[67]     In our comments about reasonable diligence, we are not being critical of counsel for Morrell.  The case against Morrell (and Cook for that matter) might, at first sight, appear to have been less than formidable, depending as it did on the evidence of a person who had at least a peripheral role in the robbery.  But the context of the case as a whole left both men with comparatively little room to move.  There was some circumstantial evidence which provided a degree of support for Michael Scott’s story.  As well, Michael Scott had no obvious motive to lie and it was not particularly plausible to suggest that he had made a mistake.  The suggestion that he was one of the men directly involved in the robbery could not have properly been made without an appropriate basis and might have looked a little lame if Cook and Morrell had not themselves given evidence.  Yet Morrell, along with Cook, had previous convictions and therefore may conceivably have faced difficulties in cross‑examination if he had given evidence which was premised on the assumption that Michael Scott was one of the men who was actively involved in the robbery.  He might also have faced difficult cross-examination as to why he initially told the police that his alibi would be supported by his partner when the alibi witness who gave evidence at trial was his mother.  In that context it would not be surprising if counsel for both Cook and Morrell saw the theory that Michael Scott was one of the robbers as a cul de sac which was not worth traversing.

[68]     Underlying our conclusion that there has been no miscarriage of justice is our view that the lines of argument which Earl Campbell’s evidence might be thought to have opened up to the defence were, in any event, generally available at trial and that counsel for both Cook and Morrell, no doubt for good reason, chose not to exploit them fully.

The sentence appeal by Cook

[69]     Judge Rea, as already indicated, sentenced Cook and Morrell to seven years imprisonment on the aggravated robbery count. He sentenced Kinderlan (who was younger than Cook and Morrell and had fewer previous convictions) to six years imprisonment and Haapu to four and half years imprisonment.  All men were sentenced concurrently to 18 months imprisonment on the car conversion count.  An existing suspended sentence in the case of Morrell was activated but on a concurrent basis.  The Judge declined to fix non-parole terms.

[70]     Kinderlan and Haapu have not appealed and Morrell did not challenge the sentence imposed. 

[71]     The Judge’s sentencing approach was that, on the basis of the principles stated by this Court in R v Mako [2000] 2 NZLR 170, the offending warranted a starting point sentence of seven years and that given the absence of mitigating factors in the cases of each of Cook and Morrell that starting point should be the actual sentence.

[72]     Cook has significant previous convictions. There were no mitigating factors.  So the only question on appeal is whether the Judge’s assessment of the starting point was within range.

[73]     Relevant to this assessment was the premeditation and planning involved (which included the earlier theft of the get-away car), the number of men involved, the use of disguises, the presence of one lethal weapon (the knife) and one weapon which would have been regarded by the restaurant manager as lethal (the BB gun), the fact that some force was used and the extremely unpleasant threat that was made to the manager to force him to open the safe.

[74]     Against this background, we see the starting point for sentence adopted by the Judge as being well within what was contemplated by this Court in Mako (and we refer particularly to paras [56], [57] and [58] of the judgment in that case).  We also note that the unlawful conversion of the motor vehicle was part of the overall criminality and had to be taken into consideration.  Against this background we see no merit in the sentence appeal by Cook.

Disposition

[75]     All appeals are dismissed.

Solicitors:
Souness Stone, Hastings for Morrell
Crown Law Office, Wellington