O'Grady v Police
[2015] NZHC 2213
•14 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000185 [2015] NZHC 2213
BETWEEN CARL MICHAEL O'GRADY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 September 2015 Appearances:
H R Laubscher for Appellant
K R Muirhead for RespondentJudgment:
14 September 2015
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 14 September 2015 at 3.30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
O'GRADY v NZ POLICE [2015] NZHC 2213 [14 September 2015]
Introduction
[1] On 1 January 2015 Carl O’Grady took a leaf-blower and a can of petrol from a residential property in Stanmore Bay. The following day his girlfriend returned the leaf-blower and a replacement petrol can. Mr O’Grady was charged with one count of burglary. He admitted taking the items. The only issue at trial was whether he entered the garage to take the items (burglary) or whether he took them from the driveway outside the garage (theft).
[2] Following a defended hearing before Judge Moses in the District Court at North Shore, Mr O’Grady was convicted of burglary and sentenced to 150 hours’ community work and nine months’ supervision and ordered to pay $17.97 in reparation. He appeals his conviction on the grounds that a miscarriage of justice occurred as a result of the Police prosecutor knowingly putting a proposition to him that was factually incorrect and the Judge erring in his assessment of the evidence.
[3] Mr O’Grady also appeals his sentence of community work on the ground that it is manifestly excessive as a result of the Judge failing to recognise mitigating factors.
The case in the District Court
[4] Photographs of Mr Dainty’s property produced in evidence show an elevated site with a driveway rising from the road. The house and its double basement garage are visible from the road. The garage has two separate tilting doors. There are windows on the wall that runs perpendicular to the garage door on the right side of the house as one looks from the road.
[5] Mr Dainty gave the following account. The garage door on the right (looking from the street) was closed but the door on the left was open. He was mowing his lawn. He noticed a car pull up outside his house facing the wrong direction. He walked across the lawn to get his motor mower catcher which was near the windows that looked into the garage. He had a good view through one of the windows. There were two cars parked inside the garage, one on each side. He saw someone inside the garage about half-way along the car parked furthest from him. He assumed that
the person was his son. He walked round towards the front of the garage and as he did so the person ran down the driveway carrying the leaf-blower.
[6] Mr O’Grady gave the following account. He was tripping on acid that he had taken the previous night (New Year’s Eve). As he and his girlfriend drove up the road he spotted the leaf-blower and petrol can sitting on the driveway. He reversed back and parked on the wrong side of the road, ran up the driveway and picked up the leaf-blower. He didn’t recall seeing any cars in the garage. As he was straightening up he looked up and saw Mr Dainty looking at him through the window. They made eye contact. He ran back to his car with the leaf-blower and petrol can and drove away.
[7] The Judge preferred Mr Dainty’s account, finding that he was a credible
witness and accepting that he had seen Mr O’Grady inside the garage:1
Mr Dainty, I am satisfied, was close enough to be able to see clearly that there was a male inside his garage who subsequently uplifted his leaf-blower and ran from that place. I accept his evidence that it was his normal practice to leave the blower and can just inside the garage and that is what he did on this occasion …
It will be apparent from my findings that I have rejected the defendant’s evidence. He says in that evidence that he did steal the leaf-blower and petrol can. He admits, therefore, having acted dishonestly on this occasion. From the evidence that I have accepted from Mr Dainty he has clearly been inside or at the garage for longer than he was prepared to admit.
[8] The Judge also cited, as reasons for preferring Mr Dainty’s evidence, the fact that Mr O’Grady was admittedly under the influence of drugs at the time and, further, that his evidence that there seemed to be nothing in the garage indicated that his memory or perception, or both, were affected by the drugs.
Appeal
[9] The Police accepted that their prosecutor had put a proposition to Mr O’Grady that was factually wrong. However, Ms Muirhead, for the Police, argued that this did not affect the fairness of the trial and therefore no miscarriage of
justice had resulted from the error.
1 Police v O’Grady [2015] NZSC 11727 at [7].
[10] A first appeal must be allowed if the Court is satisfied, in the case of a judge alone trial, that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason.2 A miscarriage of justice means:
(4) … any error, irregularity, or occurrence in or in relation to or affecting the trial that –
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[11] Although a defendant has an absolute right to a fair trial, whether the trial was fair, is an assessment to be made in relation to the trial as a whole.3 Not every error or irregularity will render a trial unfair, as the Supreme Court made clear in R v Condon:4
A verdict will not be set aside merely because there has been an irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair … [I]t is at the point when the departure from good practice is “so gross, or so persistent, or so prejudicial, or so irremedial” than an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.
[12] The proposition that the prosecutor had put to Mr O’Grady was that when Mr O’Grady was interviewed by the Police he had not mentioned making eye contact with Mr Dainty. In fact, it is clear from the interview transcript that Mr O’Grady had mentioned that.
[13] The prosecutor’s cross-examination on this topic began as follows:
Q: But when you were interviewed by the Police all you said was that you ran up, ran to it, then ran back to the car. You never made mention of making eye contact with the complainant, did you?
A: Well I didn’t think –
[14] Mr O’Grady did not complete his answer because the Court intervened to ask whether he accepted that proposition. Mr Laubscher, who was trial counsel as well
2 Criminal Procedure Act 2011, s 232(2)(b) and (c).
3 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
4 At [78].
as counsel on the appeal, objected. There was discussion between counsel and the Court, the notes of which were provided to me. They show that Mr Laubscher, sought to have the prosecutor identify where in the transcript he was referring to and that he said specifically that the proposition being put to Mr O’Grady was factually incorrect. The Judge expressed his view that “the witness seemed to agree with the proposition that was put to him” but suggested that the prosecutor “break it down”.
[15] The prosecutor continued:
Q: Mr O’Grady isn’t it the case that when you were spoken to by police you simply stated and I quote “I stopped the car, ran up the driveway and grabbed a weed blower and a can of petrol and ran back to the car and took off”
A: Yes
Q: That is what you said, isn’t it? You made no mention of this stopping
and looking up and seeing the owner, did you? A: Well I didn’t stop and –
[16] Mr Laubscher objected again, asking that if the prosecutor was quoting from the transcript he refer to the part of it. The Judge still seemed to be under the impression that Mr O’Grady had accepted the proposition being put and directed the prosecutor to continue. But the prosecutor left the topic and completed his cross- examination without further reference to it.
[17] Before beginning re-examination Mr Laubscher indicated his intention to introduce the transcript of the Police interview and suggested that he and the prosecutor confer with a view to agreeing. The Judge said that he would be happy for the whole transcript to go in and, further, that he considered that Mr O’Grady was entitled to adduce it under s 35 of the Evidence Act 2006 (as a prior consistent statement). The prosecutor objected on the ground that Mr O’Grady had accepted the proposition put to him so there was no challenge to his evidence that would justify the transcript going in. In fact, the notes of evidence do not show that Mr O’Grady had accepted the proposition.
[18] Ultimately, however, Mr Laubscher was permitted to re-examine on the transcript and produce it as an exhibit. The problem could have been cured at that
point. However, on a careful reading of the notes of evidence, it is apparent that the re-examination did not clearly establish what Mr O’Grady had said about eye contact with Mr Dainty in his police interview:
Q: … If we could go back to page 18, the last question?
A: Yes?
Q: Constable Brown asks “did you, was anyone else around?” Your reply?
A: “Yeah he was, just him.”
Q: And over to page 19, then Constable Brown asked “he was, okay, so when did you first see him looking at you?” What is your answer?
A: “After, as soon as I picked it up.”
Q: Then Constable Brown asked, “so there was eye to eye contact?”
A: “Yeah.”
Q: And then Constable Brown asked “and how far, where was he; was he outside the garage, did he?” And what was your answer?
A: “Oh I didn’t know where I was looking but I was looking like through the garage so there must have been nothing in the garage”.
(emphasis added)
[19] When Mr Laubscher asked the crucial question about eye contact he did not specifically ask what Mr O’Grady’s answer to Constable Brown had been. In comparison, the questions before and after that question make it clear that what was being sought was the answer that Mr O’Grady gave Constable Brown. As a result, Mr O’Grady’s answer is ambiguous. His answer “yeah” could be understood as being the answer that he gave to Constable Brown about establishing eye contact with Mr Dainty. Equally, however, it could be understood as simply acknowledging that Constable Brown had asked that question.
[20] The transcript was produced as an exhibit and had the Judge gone back to check it he would have realised that “yeah” was actually the answer that Mr O’Grady gave to Constable Brown’s question about whether there was eye contact. But it is impossible to know whether the Judge did so. The notes of evidence suggest that the evidence was completed a little after 12.30 pm. The Judge gave an oral decision on
both conviction and sentence. There is no indication as to whether he did so before or after lunch. Even if he did so after lunch there is no way of knowing whether he reviewed the transcript over the lunch adjournment. He made no mention of the issue in his oral decision.
[21] The prosecutor’s conduct was indefensible. Allowing him the benefit of the doubt, it is possible that accusing Mr O’Grady of fabricating this aspect of his evidence was a genuine error. However, when Mr Laubscher objected on the basis that the proposition was factually incorrect, the prosecutor pressed on, even to the point of objecting to the transcript being admitted as a prior consistent statement. As I have just discussed, the fact that Mr Laubscher had the opportunity to correct the position on re-examination did not fix the problem because the questioning did not clearly establish what Mr O’Grady had said.
[22] Mr O’Grady’s credibility and reliability were critical to his defence that he took the leaf-blower and petrol can from the driveway not the garage. Mr O’Grady was at a disadvantage in terms of credibility because he had admitted being under the influence of LSD at the time. As a result, consistencies between his account and that of Mr Dainty would have been to Mr O’Grady’s advantage as tending to show that, notwithstanding the effect of the drugs, his recollection of those matters was correct.
[23] Had the correct position been elicited in evidence the Judge would have been left with the impression that Mr O’Grady’s evidence of making eye contact with Mr Dainty was consistent with what he had told the Police in his interview. Instead, the prosecutor tried to create an impression that Mr O’Grady was fabricating evidence at his trial. That impression could only have been corrected if the Judge had reviewed the transcript of the interview but there is no basis on which to conclude that he did so.
[24] Internal consistency in Mr O’Grady’s evidence was all the more important because there were some internal inconsistencies in Mr Dainty’s own evidence which should have cast doubt on the reliability of his recollection. Mr Dainty was inconsistent about where in the garage the leaf-blower and petrol can were located.
He said that he put the leaf-blower back inside the garage in the place that he usually kept it after he had used it earlier in the day. But in cross-examination he said that he had left the leaf-blower immediately behind the car on the right hand side of the garage after using it earlier and agreed that he would have had to move the leaf- blower if he were going to back the vehicle out. Self-evidently that could not have been the place he usually kept the leaf-blower. Mr Dainty also said that there was only one person in Mr O’Grady’s car but Mr O’Grady’s unchallenged evidence (consistent with his Police interview) was that his girlfriend was also in the car.
[25] Further, although not an inconsistency, it is inexplicable that when Mr Dainty made eye contact with Mr O’Grady he did not immediately realise that he was not looking at his son.
[26] Finally, the photographs only show the garage doors in the closed position and it is not possible to judge whether items sitting on the floor of the garage could have been seen from the road when the doors were open. There was no evidence from Mr Dainty on this point.
[27] I am satisfied that the prosecutor’s conduct unfairly undermined Mr O’Grady’s credibility and that this was not adequately rectified on re- examination. Mr O’Grady was deprived of the benefit of demonstrating that, even though he was under the influence of drugs, his recollection of at least one important aspect was the same as Mr Dainty’s and there was an unjustified attempt to make it seem as though he was fabricating his evidence at the trial. So, this issue had the potential to alter the Judge’s assessment of both Mr O’Grady and Mr Dainty. Moreover, Mr Dainty’s credibility was bolstered when the inconsistencies in his account were not considered. For these reasons I am therefore satisfied that there was a real risk that the outcome of the trial was affected.
[28] Mr Laubscher proposed that if the appeal were successful, Mr O’Grady’s burglary conviction be substituted with one of theft. Section 234 of the Criminal Procedure Act 2011 would allow this if I were satisfied that:
(a) at the trial, Mr O’Grady could have been found guilty of that other offence; and
(b) the trial Judge must have been satisfied of facts that prove
Mr O’Grady guilty of that other offence.
[29] I am satisfied of both. It is clear that Mr O’Grady could have been found guilty of the offence of theft, which is defined as dishonestly and without claim of right taking any property with intent to deprive any owner permanently of that property or of any interest in that property.5 Indeed, Mr O’Grady did not challenge any factual aspects of the charge against him except the allegation that the entered the garage.
[30] The Crown sought a retrial in the District Court. However, this is a relatively minor incidence of offending (particularly given that the leaf-blower was returned the following day) and I consider that re-trying Mr O’Grady simply to establish whether or not he entered the garage is not the best use of the State’s resources.
[31] If the existing conviction is quashed and substituted with a conviction for theft, the existing sentence could not stand. However, I do not consider it necessary to remit the matter to the District Court for re-sentencing. That is a matter that is more efficiently undertaken now.
Result
[32] The appeal is allowed. The conviction is quashed and substituted with a conviction for theft under s 219 of the Crimes Act. The sentence is quashed and
substituted with one of 40 hours’ community work.
P Courtney J
5 Crimes Act 1961, s 219.
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