Pritchard v Police

[2020] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000033

[2020] NZHC 3363

BETWEEN

JADE PRITCHARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 December 2020
Appearances:	Caitlin Oxnam and Genevive Vear for the Appellant Lydia Wilson for the Respondent
Judgment:	16 December 2020

JUDGMENT OF MOORE J

[Appeal against conviction]

This judgment was delivered by me on 16 December 2020 at 4:00 pm.

Registrar/ Deputy Registrar Date:

PRITCHARD v NEW ZEALAND POLICE [2020] NZHC 3363 [16 December 2020]

Introduction

[1]                 On 17 September 2019, Jade Pritchard was convicted on one charge of burglary by Judge L Tremewan, following a Judge-alone trial in the Wāitakere District Court.

[2]Mr Pritchard appeals his conviction on the grounds:

(a)he was unable to make an informed decision whether to give evidence; and

(b)he was not able to make an informed decision whether to call any witnesses in support of his defence.

[3]The Police say the appeal should be dismissed because:

(a)Mr Pritchard was properly advised on the questions of giving evidence and calling witnesses; and

(b)in any event, a different election on those decisions would not have affected the outcome of the trial.

[4]                 We must allow Mr Pritchard’s appeal if we are satisfied that, for any reason, a miscarriage of justice has occurred.1

Extension of time for leave to appeal

[5]                 A notice of appeal must be filed within 20 working days after the date of sentence for the conviction appealed against or with leave of the Court.2 The time allowed for filing any such notice may be extended at any time by the first appeal Court.3

[6]                 Sentencing took place on 25 November 2019. The notice of appeal was required to be filed no later than 23 December 2019. Mr Pritchard’s appeal was not

1      Criminal Procedure Act 2011, s 232(2).

2      Section 231(2).

3      Section 232(3).

filed until 30 January 2020. He thus requires leave of the Court to extend the time for filing.

[7]                 The “touchstone” for granting an extension is whether it is in the interests of justice.4 The Court of Appeal recently condensed the principles of extension to two questions; first, why the proposed appeal was filed late and, secondly, whether it has merit.5 Kós P stated that in reality, the second question will be determinative of the interests of justice.

[8]                 Mr Pritchard has filed evidence explaining the reason for the delay. He says he incorrectly believed his trial counsel had filed an appeal.

[9]                 The application of the relevant principles dictates a grant of leave. The delay was not significant and Mr Pritchard has given a legitimate and uncontradicted explanation. The appeal has merits. Furthermore, there is no prejudice to the Crown in granting leave and it is not opposed. Leave is granted.

The facts of the offending

[10]              Mr Pritchard worked for a distribution warehouse company which supplies products to industrial customers. Outside business hours the warehouse is locked and access is by key and a keypad code. CCTV security cameras capture movement outside and inside the premises.

[11]              The prosecution case, as accepted by the trial Judge, was that about 6:15 am on Saturday, 19 May 2018, Mr Pritchard went to his employer’s premises. As is usual over the weekend, the warehouse was closed and secured. Mr Pritchard used a staff code to enter the building. He took the keys to a forklift which he used to uplift a wooden crate containing a brick saw. He loaded it onto the back of his ute and left.

[12]              A little under an hour later, at 7:05 am, he returned. Again, using the forklift, he removed a second wooden crate containing another brick saw which he loaded onto his ute and left.

4      R v Knight [1998] 1 NZLR 583 (CA) at 587.

5      Smith v R [2020] NZCA 221 at [3]-[4].

[13]Neither brick saw has been recovered. They have a combined total value of

$3,600.

District Court decision

[14]              The sole issue at trial was whether Mr Pritchard was the burglar. The Judge summarised the evidence. She noted, more than once, that Mr Pritchard had not given or called evidence in his own defence and that in certain respects the evidence against him was thus uncontradicted.

[15]              The Judge noted that it was “perfectly apparent that whoever it was who stole the brick saws, had the means to access the warehouse and knew what they were doing. It was the offending the Judge described as an “inside job”, a conclusion she reached having regard to:

(a)the uncontradicted evidence of Mr Dennis, who was Mr Pritchard’s immediate boss at the company regarding the keys and access codes;

(b)the CCTV footage showing the offender using a fork hoist “evidently ably” and selecting the two brick saws in boxes (whose contents might have been obscured with shrink wrap); and

(c)the fact the offender would need to know how to access the building, use the equipment and know where the goods in question were stored.

[16]              The Judge noted that the independent observer could not identify the offender from the CCTV or still photographs. This was because the person’s face is unclear. However, Mr Dennis maintained that it was evident the burglar was Mr Pritchard. He said that he had worked with Mr Pritchard for over six years and recognised the way he carried himself and his physique.   Comparing the person in the footage with     Mr Pritchard, Mr Dennis described Mr Pritchard’s way of moving as follows;

“… sluggish in the way that he carries himself with a bit of a kink in his right leg or a kick out of his right leg and a hunching over when he sits in the fork hoist.”

[17]              Mr Dennis gave evidence that Mr Pritchard was one of the few people who had keys to access the premises because he had been given a set the summer before in order to use the workshop to undertake repairs on his motorcycle. The CCTV footage showed that keys were used to open the door. Mr Dennis said that a day or so after the burglary, Mr Dennis asked Mr Pritchard to return the keys which he did. He then immediately resigned. In cross-examination it was suggested to Mr Dennis that the keys held by Mr Pritchard had been returned earlier. Mr Pritchard was adamant that the keys were handed back shortly before Mr Pritchard resigned.

[18]              It was also suggested in  Mr  Dennis’  cross-examination  that  the  reason  Mr Pritchard resigned was because he had been effectively demoted. Mr Dennis did not accept this. Instead, he said that Mr Pritchard was given new duties due to his unreliable attendance. Mr Dennis said those issues had been resolved before the burglary.

[19]              The evidence was that the codes used to access the building were individualised.   The code used by the burglar was  one reserved for a Mr Mita.     Mr Dennis maintained that he had given  Mr  Pritchard  Mr  Mita’s  code  because Mr Mita had left and was believed to be living in Rotorua. Mr Dennis was emphatic that only Mr Pritchard had that code. There was no evidence that Mr Mita had any keys.

[20]              The prosecution also called a Mr Beeby, a police officer whose daughter had previously been in a relationship with Mr Pritchard. Mr Pritchard stayed at the Beeby home following the break up.  On 27 May 2018, about a week after the burglary,   Mr Beeby, was out of Auckland when he received a text message from Mr Pritchard. The message read:

“Morning Marty, I was in a rush for time on Friday and had to leave a mate’s brick cutter at your place outside just until Monday. I’ve just used your tarp to shelter box from the rain.”

[21]              Mr Beeby said that he saw the item when he returned home. It was sitting on a pallet under a tarpaulin. It was less than a metre square but, because of the covering, he was unable to see much more. He said the item was later moved from the property

and that Mr Beeby’s wife and another helped Mr Pritchard load it onto the back of his ute.

[22]              The Judge found that although Mr Pritchard was not the only person who would have had the necessary knowledge and ability to access the premises, he would have been one of just a few. He was one of only two who used the code that the burglar used. That evidence, combined with the evidence  that  shortly  after the  burglary  Mr Pritchard was in possession of a brick cutter, led the Judge to observe that the evidence pointed clearly to Mr Pritchard.

[23]              The Judge determined it was unsafe to place any weight on Mr Dennis’ purported identification of Mr Pritchard from the footage.

[24]She found Mr Pritchard guilty and remanded him on bail for sentence.

The evidence filed on appeal

Mr Pritchard

[25]              Mr Pritchard has made two affidavits. He has waived privilege in respect of the advice his trial counsel, Mr English, gave him.

[26]              The first affidavit describes his pre-trial dealings with Mr English and what happened on the day of the trial. His second affidavit responds to matters raised in Mr English’s affidavit, which is discussed below.

[27]              The essence of Mr Pritchard’s evidence is that before the trial he met with  Mr English on about five occasions most, if not all, coinciding with scheduled case management hearings. He claims he sent Mr English multiple emails setting out his case and claimed he kept notes of the discussions. He accepts that he had some five to 10 phone calls with Mr English but maintains these were brief and covered single questions. They were primarily instigated by Mr Pritchard.

[28]              He claims he told Mr English about  the  employment issues he had with    Mr Dennis and sent him documents he had received from his union relating to

complaints he had made against Mr Dennis who had earlier accused him of stealing a trolley jack. He said that everyone at the company knew he had a poor relationship with Mr Dennis to such an extent that a week before the burglary, he raised with his union whether he should resign.

[29]              Mr Pritchard places considerable weight on the difference between a brick cutter and a brick saw. He says that the item which was left at Mr Beeby’s address was a brick cutter which he used for a cash job. It was not a brick saw of the type stolen in the burglary. He told Mr English about the difference and why the brick cutter had been left at the Beebys’. He showed Mr English pictures of the different tools.

[30]              He said that before the trial he had a discussion with Mr English about potential witnesses from his workplace who could, if called, confirm that his relationship with Mr Dennis was poor. He gave Mr English copies of the email correspondence he had with the union revealing the workplace difficulties. He said that Mr English seemed to think this evidence would not be helpful despite Mr Pritchard’s belief it would show that he had previously been falsely accused of theft by Mr Dennis.

[31]              According to Mr Pritchard, at no stage before the trial did he sit down with Mr English and discuss the events or give his side of the story. No brief of evidence was prepared. He says that approximately two weeks before the trial Mr English told him that he thought that “we had enough” and that Mr Pritchard would not be required to give evidence.

[32]              However, on the morning of the hearing, Mr Pritchard claims he had every intention of giving evidence and spoke to Mr English about this. He said this was at about 10:30 am but they ended up only discussing procedural matters.

[33]              Mr Pritchard says that he cannot recall if Mr English specifically asked him whether he had any witnesses. He certainly did not discuss the possibility of an adjournment so witnesses could be called. Mr Pritchard says he was not aware that an adjournment for this purpose was even an option.

[34]              The trial commenced at approximately midday and when the luncheon adjournment  was  taken,  Mr  Dennis   was   still   giving   his   evidence-in-chief. Mr Pritchard says that during lunch they talked for about 10 or 15 minutes about how the case was going. He said that Mr English gave the impression that in his view the trial was going well. Mr Pritchard cannot recall discussing whether he should give evidence.

[35]              After lunch the Police case continued and when it finished, Mr Pritchard said a break was taken for him to talk to Mr English. He said that at this time Mr English asked him some “practice questions” before saying it was not necessary for him to give evidence. He said that Mr English told him that the evidence had gone well and that he believed there was a reasonable doubt. He said Mr English mentioned some risks about giving evidence although he cannot recall exactly what was said. However, he was left with the firm impression that in Mr English’s opinion, he had established sufficient doubt not to require Mr Pritchard to give evidence. He said the entire discussion during this break occupied around 10 minutes during which Mr Pritchard signed a document recording that he did not wish to give evidence. He says he then went out to have a cigarette before the hearing resumed.

Mr English

[36]              Mr English was admitted to the bar in 2014. Since that time he has practiced entirely on his own account, specialising in criminal defence. Before that he was a Police prosecutor for seven years.

[37]              He says he was first assigned to the case by Legal Services in April 2019. He appeared at various procedural hearings thereafter.

[38]              He says he had “a large amount of phone correspondence” with Mr Pritchard prior to the trial. He met with him for approximately one-and-a-half hours to discuss the case and evidence on 5 August 2020 at the Wāitakere District Court. He says that Mr Pritchard’s defence involved a denial he was the burglar; it must have been another employee or ex-employee. He said that the brick cutter stored at Mr Beeby’s home was different from a brick saw of the type stolen. He said that he got the brick cutter from a friend who worked in trade but could not provide that person’s details.

[39]              Mr English says he did not complete a brief of evidence at that point. This was because Mr Pritchard’s defence was that someone else had committed the crime and because Mr Pritchard had outlined his version of the events on many occasions.     Mr Pritchard claimed he was at home at the time of the burglary but had no alibi and no witnesses to support his version of events. Because the burglary was captured on CCTV footage, the defence would necessarily focus on establishing whether another person with the skills to use the forklift, could have had access to the building at that time.

[40]              Mr English says that Mr Pritchard told him he had some material witnesses who would say that other workers had keys to the business. Mr English says that he repeatedly told Mr Pritchard that these people would need to come to Court and, if necessary, they could be summonsed. Mr English says that Mr Pritchard was unable to provide him with their names or contact details.

[41]              Mr English claims that on the day of the trial he met Mr Pritchard at 9:00 am to prepare for the hearing. Mr Pritchard told him that none of his co-workers were available to come to Court that day and were unlikely to be available in the future. Mr English explained that they would need to come to Court if their evidence was to be adduced. He says that Mr Pritchard indicted that he wished to proceed without them.

[42]              Mr English says that he had previously explained to Mr Pritchard that he would not be required to make a final decision on his election until after the Police case had been completed. As it happened, most of the prosecution case was concluded by the lunch adjournment. The Police’s principal witness was Mr Dennis. He gave evidence that Mr Mita had previously worked at the premises and in cross-examination accepted it was conceivable Mr Mita might still have the keys to the building. He knew how to access and drive the forklift in the manner seen in the CCTV footage. In Mr English’s view, Mr Dennis accepted it was possible that Mr Mita could have come to Auckland and committed the crime. Mr English’s view of the case was that reasonable doubt as to the identity of the burglar had been established through the concessions made by Mr Dennis under cross-examination.

[43]              Mr English says he spent the whole lunch adjournment with Mr Pritchard discussing the case and whether he should give evidence. They undertook some “practice cross-examination” to demonstrate the sort of questions Mr Pritchard would likely face if he gave evidence. Mr English says there were a number of aspects of Mr Pritchard’s narrative for which he did not have an answer. These included where the item he had stored at Mr Beeby’s home had come from, and an absence of any contemporary documentary record tending to support his claim that it was a brick cutter and not a brick saw, that it belonged to someone else and that it was being used by Mr Pritchard on a cash job. Irrespective of Mr Pritchard’s insistence it was a brick cutter, Mr Beeby never examined it carefully. Although covered with a tarpaulin, the item was contained in a wooden crate of comparable size and weight to the brick saws stolen.

[44]              Mr English came to the view that Mr Pritchard’s evidence would have strengthened aspects of the case against him. Furthermore, while he could have given evidence about his ongoing conflict with Mr Dennis, that would have opened him up to cross-examination over the earlier accusations regarding the theft of the trolley jack. Mr English considered this would not be helpful and, in any event, Mr Dennis had made concessions regarding his “history” with Mr Pritchard.

[45]              Notwithstanding these issues, Mr English maintains he did not have a strong view on whether Mr Pritchard should give evidence. He said he discussed the question of the election with Mr Pritchard for over an hour, outlining its pros and cons. He says that although he left the question for Mr Pritchard to decide Mr Pritchard was firm and clear that he did not wish to give evidence and would rely on the reasonable doubt arising from Mr Dennis’ evidence. Mr English then took written instructions confirming that decision.

Submissions

Appellant

[46]              Ms Oxnam, for Mr Pritchard, submits that Mr Pritchard was not provided with adequate advice on his right to give evidence and, as a consequence, justice has miscarried.

[47]              She says that while Mr English took instructions on whether Mr Pritchard wished to give evidence, he did not adequately advise Mr Pritchard on the consequences of not giving evidence including:

(a)he would be unable to provide background information about his relationship with Mr Dennis;

(b)he would be unable to explain the differences between a brick cutter and brick saw and his explanation for possessing the brick cutter; and

(c)he would be unable to explain to the Court the alarm code he used and whether he had keys at the time of the burglary.

[48]              The importance of this evidence to the Judge’s reasoning is evident by her repeated comments regarding Mr Pritchard’s election not to give evidence.

[49]              Ms Oxnam says that while Mr Pritchard’s preference was to give evidence, he was persuaded by Mr English’s confidence that it was unnecessary to do so.

[50]              Furthermore, Ms Oxnam submits that Mr Pritchard was never properly advised of the consequences of not giving evidence, namely that Mr Dennis’ evidence would not be contradicted and, as a result, Mr Pritchard was unable to make an informed decision on whether to give evidence. This error was compounded by Mr English’s failure to prepare a brief of evidence.

[51]              Additionally, Ms Oxnam submits that Mr Pritchard was not fully informed in relation to the calling of witnesses in support  of his defence.   Despite advising     Mr English of a number of potential defence witnesses and Mr English’s advice that he would let him know if they were needed, the subject was not raised again. At no time was Mr Pritchard given meaningful advice on the process of arranging possible defence witnesses or the merits of calling such witnesses on his case. Ms Oxnam submits that a  witness  from  Mr  Pritchard’s  union  could  have  confirmed  that  Mr Pritchard had complained about his relationship with Mr Dennis before the burglary. Furthermore, a witness from Mr Pritchard’s employer could have confirmed

the evidence of animosity as well as explaining the difference between a brick cutter and brick saw.

[52]              As a consequence of these serial errors by Mr English, Mr Pritchard was denied the ability to make an informed decision on how best to respond to the Police case. His right to a fair trial was thus significantly impaired leading to a miscarriage of justice.

Respondent

[53]              Ms Wilson, for the Police, submits that Mr Pritchard plainly knew at the end of the prosecution’s case he would be required to make a final decision as to whether to give evidence. He was competently advised of the advantages and disadvantages of doing so. He had spoken with Mr English multiple times and they had met in person. His instructions to Mr English were consistent throughout. Mr Pritchard was fully engaged in the preparation of his defence and, Ms Wilson submits, his decision not to give evidence was thus an informed one.

[54]              As for not preparing a brief of evidence, Ms Wilson submits Mr English knew Mr Pritchard’s position on all the relevant issues against a background of full engagement in the form of telephone conversations and face-to-face meetings.

[55]              Mr English fully explained the advantages and disadvantages of Mr Pritchard giving evidence. The case was not complex and Mr English had tested Mr Pritchard’s ability to respond to potential questions under cross-examination. He did not, himself, have a strong opinion on whether Mr Pritchard should give evidence and properly left the decision to Mr Pritchard.

[56]              Ms Wilson submits in those circumstances Mr Pritchard was well positioned to make an informed decision on his election. His decision not to give evidence reflected an informed choice made on the basis of what he had observed in the course of the trial, his cross-examination practice and the advice given by Mr English outlining the benefits and risks of giving evidence.

[57]              More particularly, in response to Ms Oxnam’s submissions on those aspects of evidence which Mr Pritchard could have addressed had he given evidence, she points out that the difference between a brick saw and a brick cutter would not have assisted. Both his affidavit evidence and oral testimony at the hearing before me would not have helped. His explanation was that he had been doing a cash job for the owner of the brick cutter who did not want to be identified. Mr Pritchard also claimed he was concerned about exposing himself to liability for tax evasion.

[58]              Secondly, the fact there had  been  difficulties  between  Mr  Pritchard  and Mr Dennis was acknowledged during Mr Dennis’ cross-examination. Ms Wilson submits it is not clear how giving further evidence on this issue would have strengthened the defence. She points to Mr English’s observation that it might well expose Mr Pritchard to the earlier allegations that he had stolen a trolley jack.

[59]              As for the alarm code and keys, Ms Wilson refers to Mr English’s evidence that in his opinion Mr Dennis had created a reasonable doubt as to whether another person, with the requisite knowledge of the alarm code and set of keys could, in fact, have been the burglar. Additionally, Mr Pritchard’s employer had 10 employees at the time of the burglary and Mr Dennis’ evidence was that multiple people would use the same code as that used by the burglar. Furthermore, Mr Dennis’ evidence was that the record of those who used what code and how many keys were in circulation was not regularly maintained.

[60]              Finally, the question of when the keys were returned to Mr Dennis was not material. Mr Pritchard told Mr English he had returned the keys to Mr Dennis before the burglary, but he also told him he had been able to access the factory on weekends to work on personal projects. He could borrow a set of keys and return them later.

[61]              Ms Wilson thus submits that Mr Pritchard’s evidence could not have had a positive impact on his case in the way he claims. Furthermore, even if there was an error on Mr English’s part in advising him as to his election, any such error did not create a risk of a miscarriage of justice.

[62]              On the question of not calling witnesses, Ms Wilson submits that neither of the proposed  classes  of  witness  could  have  assisted  Mr  Pritchard.  According  to  Mr English, Mr Pritchard was unable to provide him with the contact details of his former co-workers or the person who he was undertaking the cash job with.

[63]              Thus, Ms Wilson submits that Mr Pritchard made an informed choice not to give evidence or to call witnesses and even if an error had been made, it did not lead to a miscarriage of justice.

Discussion

The principles

[64]              The right to a fair trial is a guaranteed right.6 Implicit in that right is the right to be represented at trial by competent counsel who meet the relevant standards and comply with the relevant statutory, regulatory and common law obligations imposed on trial counsel.7

[65]Counsel error is grounds for appeal under either:

(a)s 232(4)(a), where it can be shown that counsel’s conduct created a real risk the outcome of the trial was affected; or

(b)s 232(4)(b), where trial counsel erred on fundamental matters, such as failure to follow specific instructions relating to plea, the giving of evidence or advancing a defence based on the accused person’s version of events.8 The error must be of sufficient seriousness to warrant the verdict being set aside without further enquiry.9 If the Court finds there has been an unfair trial in terms of this section, the conviction must be

6      New Zealand Bill of Rights Act 1990, ss 25(a) and (f).

7      Hall v R [2015] NZCA 403 at [1].

8      Hall v R [2015] NZCA 403 at [65]; Tarring v R [2016] NZCA 452 at [36]; Saumanaia v R [2020] NZCA 459.

9      Wiley v R [2016] NZCA 28 at [41].

set aside. It is not necessary to consider whether this may have affected the outcome of the trial.10

[66]              The Supreme Court in Sungsuwan v R emphasised the need for an appeal Court when considering any appeal on the grounds of conduct of defence counsel, to retain its focus on the question of whether a miscarriage of justice has occurred, rather than focusing on whether there were shortcomings in counsel’s performance and how those shortcomings might be characterised:11

“… While the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances of the time, that conduct may have met the objectively reasonable standard of competence.”

[67]              In my view, the determinative question on this appeal is whether Mr Pritchard’s election not to give evidence was fully and properly informed and if it was not whether justice miscarried.

[68]              Rule 13.13.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“the Rules”) states:

“When taking instructions from a client, including instructions on a plea and whether or not to give evidence, a defence lawyer must ensure that his or her client is fully informed on all relevant implications of his or her decision and the defence lawyer must then act in accordance with the client’s instructions.”

[69]The footnote to r 13.10.8 of the Rules also states:

“A lawyer may assist a witness in preparing to give evidence by assisting in the preparation of a brief of evidence, and by pointing out gaps, inconsistencies in the evidence (with that witness’s evidence or the evidence of other witnesses), the inadmissible nature of proposed evidence, or irrelevancies in evidence that the witness is proposing to give.”

10 At [37].

11     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730, (2005) 21 CRNZ 977 at [70].

[70]              Advising a defendant as to whether he/she should give evidence has been commented on numerous times both in this Court and the Court of Appeal. Any decision must be an informed one.

[71]For example, in Chambers v R the Court of Appeal observed:12

“It is the client’s decision as to whether he or she will give evidence. It is counsel’s responsibility to ensure it is an informed decision, and to give advice, in firm terms if they wish, about what would be best. But it remains the client’s decision.”

[72]              In Tarring v R the Court of Appeal reaffirmed the principle in the following way:13

“The election whether to give evidence is a decision for the client but it must be an informed decision and it is for counsel to ensure that the client has the necessary information, conveyed in an appropriate and timely way, to make the decision.”

Was Mr Pritchard’s decision not to give evidence informed?

[73]              This was a case which required the Judge to be satisfied to the criminal standard that Mr Pritchard was the burglar. There was no direct evidence on the issue. Proof was necessarily by way of inference.

[74]              The prosecution claimed the Judge should draw the inference Mr Pritchard was the burglar because:

(a)he had possession of or access to the keys;

(b)he had knowledge of the key pad access code;

(c)he knew where the keys to the forklift were and was a competent forklift operator; and

(d)an item of consistent shape and size to one of the brick saws stolen was in Mr Pritchard’s possession within a short time after the burglary.

12     Chambers v R [2011] NZCA 218 at [5].

13     Tarring v R, above n 8 at [26].

[75]              To displace the inference, it was necessary for the defence, either in cross- examination of the prosecution witnesses or by Mr Pritchard giving and/or calling evidence or both to place before the Court a credible counterfactual.

[76]              I accept Mr English’s evidence that no properly informed decision, irrespective of Mr Pritchard’s claimed preference to give evidence, could be made until after the prosecution’s case had concluded. Until then, a mature and considered assessment of the strength of the evidence simply could not be made.

[77]              In his first affidavit, Mr Pritchard says that while he did have possession of a key, he returned that to Mr Dennis a month or so before the burglary. At the time of the burglary he did not have a key. As for the access code, he said he had never used the one used by the burglar. He used a different code which was shared by at least three other employees.

[78]              Mr Dennis’ evidence was that Mr Pritchard was one of the few who had keys. He said that Mr Pritchard retained these keys until the week following the burglary when Mr Dennis, believing Mr Pritchard to be implicated in the burglary, asked him to return the keys, which he did. He then immediately resigned. Mr English cross- examined Mr Dennis suggesting to him that the keys had been returned earlier.     Mr Dennis remained steadfast that the keys were handed over after the burglary, very shortly before Mr Pritchard resigned. In the absence of evidence contradicting this part of Mr Dennis’ account, it was all but inevitable that the Judge would find as a fact that Mr Pritchard returned the keys in the circumstances described by Mr Dennis.

[79]              On the question of the access codes Mr Dennis said that Mr Pritchard was one of only a few who had the individualised access code used by the burglar. He said that he gave Mr Pritchard Mr Mita’s code  because  Mr  Mita had  left  and  relocated.  Mr English cross-examined him on the point. He put to him that others had this access code. Mr Dennis was not shaken. He was firm that the only people who had this access code at the relevant time were either Mr Pritchard or Mr Mita and, implicitly, Mr Pritchard was the only one who had possession of both the key and knowledge of the access code.

[80]              In his affidavit, Mr English says that before the trial Mr Pritchard told him that there were witnesses who could say that other workers had keys to the business.    Mr English says he repeatedly told Mr Pritchard that they needed to come to Court for the hearing but Mr Pritchard was unable to provide their names or contact details.

[81]              Mr English says that in his opinion Mr Dennis accepted it was possible that Mr Mita could have come to Auckland and committed the crime and, for that reason, he was of the view that reasonable doubt had been established. In his evidence before me, Mr English said that in cross-examination Mr Dennis conceded that Mr Mita may have had a set of keys, could have had the access code and that he had no idea where Mr Mita was at the time of the burglary. Mr English said that the evidence “fell away so quickly [because Mr Dennis] had really accepted all those points and then we had to make a decision from there”. However, when the passage in question was put to Mr English he accepted that there was no clear concession of that sort.

[82]              Another, potentially significant aspect of Mr Dennis’ evidence was that he did not accept there was a longstanding animus between him and Mr Pritchard. This evidence was relevant  to  the  timing  of  Mr  Pritchard’s  resignation  which,  on  Mr Dennis’ evidence was closely linked to the return of the keys shortly after the burglary. In other words, as I understood Ms Oxnam’s submission might, if not more fully explained, be evidence that Mr Pritchard resigned because he knew he was a key suspect for the burglary. Mr Pritchard’s evidence, perhaps bolstered by a union witness, would have assisted in proving that Mr Pritchard had been contemplating resigning for some time.

[83]              I regard both these aspects of Mr Dennis’ uncontradicted evidence, as significant features of the circumstantial case against Mr Pritchard.

[84]              The other material component of the prosecution case was the presence of the item Mr Pritchard left at Mr Beeby’s home. Mr Pritchard placed considerable emphasis on the importance of the distinction between a brick saw and a brick cutter. I regard that distinction as having no bearing on the issue. Mr Beeby’s evidence was that when he arrived home he saw a wooden crate sitting on a pallet covered by a blue

tarpaulin. He estimated the dimensions to be about 700 cms square. He could not tell what was in the crate. Mr English did not cross-examine him.

[85]              Plainly this was powerful evidence for the prosecution. It placed an item of generally comparable dimensions to the item stolen in Mr Pritchard’s possession within days of the burglary. Mr Pritchard insists that he has a cogent explanation consistent with innocence, that is that the item was a brick cutter borrowed from a friend and that he was using it for  a  cash  job.  Even in  his  evidence before  me, Mr Pritchard seemed unnecessarily coy about disclosing the identity of the owner of the brick cutter or for whom the cash job was being done. If he had given evidence it is inevitable he would have been cross-examined on this point and his failure or refusal to explain the provenance of the item is likely to have counted against him.

[86]              However, the question for me is whether his decision not to give evidence was an informed one within the meaning that term has been given in the case law. I am satisfied that it was not for the reasons which follow:

(a)First, Mr Dennis’ evidence strongly implicated Mr Pritchard as the burglar. It also tended to eliminate any others, including Mr Mita. The only mechanism to place before the Court Mr Pritchard’s exculpatory account was for Mr Pritchard to give evidence.

(b)Second, no brief of evidence was prepared. Mr English says that was because he knew Mr Pritchard’s version of events and was “comfortable with his position”. I accept, consistent with the observations of the Court of Appeal in Western v R that the failure to prepare a brief is not, of itself, an error that is necessarily fatal to a defendant receiving a fair trial, the assessment of the significance of doing so is contextual.14

While    I    agree    that    Mr    Pritchard’s    defence   was    reasonably straightforward, the preparation of a brief would have provided a

14     Western v R [2019] NZCA 541 at [35].

reference and context which would focus any discussions on whether Mr Pritchard should give evidence or not.

(c)Third, Mr English’s assessment of whether a reasonable doubt had been created, while necessarily intuitive, was unduly optimistic. The evidence, particularly that of Mr Dennis, had not gone  as  well for  Mr Pritchard as Mr English believed. Without defence evidence to contradict it, it was all but inevitable  that  the Judge  would accept  Mr Dennis’ evidence which, on its own, was likely to be sufficient to support a conviction.

(d)Fourth, while there were obvious dangers around Mr Pritchard’s explanation for the item left at Mr Beeby’s, this evidence left uncontradicted added materially to the case against Mr Pritchard. Furthermore, without his evidence that he knew Mr Beeby was a Police officer, the Judge was unable to consider the likelihood of Mr Pritchard leaving a stolen item at a serving Police officer’s home.

(e)Fifth, Mr Pritchard’s written confirmation “I don’t wish to give verbal evidence today” is the only independent, documentary evidence available of the fact that the issue of an election was raised. I accept Mr English’s comment that in his opinion, the question of whether or not to give evidence was “a close call”. There were obvious risks and benefits. However, without a contemporaneous record of the principal competing factors, it is difficult not to be left with the clear impression these issues were not adequately ventilated. In particular, Mr English’s evidence that he advised Mr Pritchard that in his opinion Mr Dennis’ evidence alone could establish a reasonable doubt. For reasons I have already given, I cannot agree. If Mr Pritchard was to present an effective defence his only option in the circumstances was to give evidence. Absent evidence tending to contradict Mr Dennis, the Judge

had little option but to find as she did. Her oral judgment reflects this in the following passages taken from the judgment:15

“The defendant elected not to give or call evidence. Of course, there is no obligation on him to do either. It does not change the onus or burden of proof, but it is relevant in the sense that when the Court is considering all the evidence that is before it, there is no sworn testimony from Mr Pritchard or anyone called by him.”

And when discussing Mr Dennis’ account of Mr Pritchard surrendering the keys and immediately resigning, the Judge said:16

“As  will  be  obvious  from  what   I   have   said   earlier, Mr Pritchard has elected not to give evidence so there is no evidence on oath that would conflict with what Mr Dennis has said about Mr Pritchard’s possession of the keys at the relevant time.”

And in relation to Mr Beeby’s evidence:17

“And so there is, again, uncontroverted evidence, as it turns out, that Mr Beeby has been informed by Mr Pritchard that he was storing or leaving a brick cutter at Mr Beeby’s address for a short period and this was approximately a week after the burglary. …”

And:18

“… There is, as well, of course, some evidence that the defendant had an item in his possession approximately a week later which he himself described it as a brick cutter and, as I’ve noted, no explanation has been proffered as to the circumstances of that. That is not to say that it is for a defendant to assume the responsibility of proving his or her innocence, but this is, ultimately a case in my assessment where all the evidence, when it is lined up, clearly points to the defendant.”

[87]              It follows that I am satisfied that Mr Pritchard was denied the opportunity to make an informed choice on whether or not to give evidence and, as a consequence, I am satisfied that there has been a miscarriage of justice.

15 Judgment at [5].

16 At [12].

17 At [16].

18 At [20].

Was Mr Pritchard able to make an informed decision on whether to call witnesses in his defence?

[88]              My finding on the previous question means that I am not required to consider the second complaint Ms Oxnam advances, namely that Mr Pritchard was denied the ability to make an informed decision as to whether to call witnesses in his defence.

[89]              However, for the sake of completeness, I accept Mr English’s account of his dealings with Mr Pritchard on the question of calling witnesses and witness availability and I do not find this ground of appeal made out.

[90]              Mr English’s evidence was that he asked Mr Pritchard about potential witnesses from an early point in their dealings. In particular, apparently in response to a question from Mr English, Mr Pritchard claimed there were witnesses who could say other workers had keys to the warehouse. Mr Pritchard accepts there were early discussions about witnesses.

[91]              However, in his first affidavit Mr Pritchard  claims that  he discussed with  Mr English that former co-workers could give evidence of the animus between him and Mr Dennis, including the allegations he had stolen a trolley jack. Curiously, nowhere in his first affidavit does he mention discussing with Mr English any witnesses who might have supported his account regarding the keys and codes despite the fundamental importance of this aspect to his defence.

[92]              As for the brick cutter left at Mr Beeby’s, it is only in his second affidavit, after Mr English had deposed that Mr Pritchard could not give him the owner’s contact details, does Mr Pritchard mention that the owner was reluctant to assist. In his evidence before me Mr Pritchard was entirely unconvincing on his claimed reluctance to identify the owner of the brick cutter. He was evasive and his claim that the owner had told him he would deny he was doing cash jobs if called as a witness was stretched. If Mr Pritchard could have thrown reasonable doubt on the provenance of the brick cutter it would have neutralised a major plank of the prosecution’s case. His claim about protecting his associate or the identity of the person for whom the work was being undertaken did not ring true given the centrality of this aspect of evidence.

Indeed, the Judge’s comments on that very question, as set out earlier in this judgment, underscore the importance of the issue in the eyes of the fact finder.

Conclusion

[93]              In coming to the conclusion that the appeal should be allowed, I do not overlook the recent warning of the Court of Appeal in Saumanaia v R against defendants resorting to appellate remedies when attempting to reverse an adverse result on the grounds of counsel’s conduct:19

“A defendant who is acquiesced in his or her counsel’s advice not to go into the witness box him or herself will usually have great difficulty in showing any miscarriage of justice on that account.”

[94]              I agree that great caution must be exercised in these circumstances, particularly in cases such as the present where the evidence supporting the prosecution case would appear to be strong. Appellate Courts should not provide a vehicle for “another bite of the cherry” where tactical trial decisions, often finely balanced and nuanced, might later be regretted. The question will always be a decision for the defendant to make. But it must be a properly informed decision made following legal advice which balances the risks against the benefits.

[95]              Here counsel’s advice regarding his assessment of the strength of the defence case was misplaced. I am satisfied that assessment, at the very least, strongly influenced Mr Pritchard’s decision not to give evidence. It follows I am satisfied a miscarriage of justice has occurred and the appeal should be allowed.

Result

[96]Appeal allowed.

19     Saumanaia v R, above n 8 at [27].

[97]              A re-trial is ordered and the matter is remitted back to the District Court for rehearing.

Moore J

Solicitors:

Public Defence Service, Auckland Crown Solicitor, Auckland