R v Breton
[2019] NZHC 3016
•19 November 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000114
[2019] NZHC 3016
BETWEEN THE QUEEN
Appellant
AND
ANTON PAUL LE BRETON
Respondent
Hearing: 7 November 2019 Appearances:
R E Harcourt for Appellant
P H B Hall QC for Respondent
Judgment:
19 November 2019
JUDGMENT OF DUNNINGHAM J
Introduction
[1] The respondent, Anton Le Breton, is charged with the aggravated robbery of a bank in Christchurch in November 2016. He applied in the District Court to have the charge dismissed under s 147 Criminal Procedure Act 2011, on the grounds that his right to a fair trial had been breached because the original demand note which was presented during the robbery had been lost.
[2] On 26 July 2019, Judge Kellar declined the application for dismissal, but ruled that evidence of the defendant’s fingerprints on the demand note was inadmissible.1
1 R v Le Breton [2019] NZDC 14546.
R v LE BRETON [2019] NZHC 3016 [19 November 2019]
[3]The Crown appeals the exclusion of that evidence.
Background facts
[4] It is alleged that the respondent entered the Upper Riccarton branch of Kiwibank shortly before 5 pm on 17 November 2016 and put a note on the counter that read “GIVE ME $100 notes $50 notes, I HAVE A GUN!” He pushed his right hand forward in his jacket pocket so that the bank tellers could see the outline of what appeared to be a pistol. One of the bank tellers opened the cash drawer and put $200 in $50 notes onto the counter. The respondent is then alleged to have picked up the money and left the bank. The demand note was left behind.
[5] CCTV footage shows the offender placing the demand note on the counter, but the respondent cannot be identified from the footage. A fingerprint taken from the counter where the offender can be seen placing his hand was identified as the respondent’s. A fingerprint was able to be developed on the demand note and was identified as belonging to the respondent.
[6] The respondent denied the offending and had no explanation for how his prints came to be on the note and the counter. He accepted that he has accounts with Kiwibank but claimed not to have used the Upper Riccarton branch for several years.
[7] The demand note was initially held as an exhibit by police. It was treated with ninhydrin, a chemical that reacts with amino acids and proteins that are left from skin contact with an item and allows visible fingerprints to be developed. The only identifiable fingerprint developed at the time of the examination belong to the respondent and no further suitable fingerprints were discovered. However, as Mr Roberts, the fingerprint officer giving evidence for the police accepts, it is not unheard of for fingerprints to develop many days after treatment with ninhydrin, mostly on thicker, coarser surfaces.
[8] However, the note was subsequently either lost or erroneously destroyed due to an administrative error. It is therefore unavailable for examination by the defence. A copy of the front of the demand note was retained which is available to defence, but
no copy was made of the reverse side, with Mr Roberts noting that no identifiable fingerprints were found on it.
[9] The respondent made his application for discharge on the basis that the loss of the demand note deprived him of the right to have an independent expert examine the evidence, thus compromising his right to a fair trial. He submitted that if the demand note was still available, it would be possible to re-examine the front and rear of it to see if any further prints had developed. It may also be possible to undertake a handwriting analysis of the note comparing it to samples taken from the respondent.
District Court decision
[10] Judge Kellar identified the relevant rights at issue under the New Zealand Bill of Rights Act 1990 as the right to adequate time and facilities to prepare a defence, the right to a fair and public hearing by an independent and impartial court, and the right to the observance of principles of natural justice.2 He noted that the right to adequate time and facilities to prepare a defence included “adequate access to evidence which the accused requires to present his or her case”.3 In this case the demand note was “a major plank of the case”, and the respondent was entitled to have his own fingerprint expert examine the exhibit and any latent fingerprints on it.
[11] The Judge found there was no evidence of bad faith in the handling of the note, but agreed with the Crown that the chain of custody process had been improperly managed. The Judge stated the respondent may have an explanation as to why his fingerprint was on the counter as it seemed he had visited the bank several days before the offending. He found there was a possibility that further prints may have developed, and that it would have been possible to further examine the rear of the note.
[12] In Judge Kellar’s opinion, the absence of the demand note significantly compromised the respondent’s ability to offer an effective defence and constituted an abuse of process. The right to a fair trial outweighed the public interest in administering justice in this case. However, Judge Kellar considered the breach could
2 New Zealand Bill of Rights Act 1990, ss 24(d), 25(a) and 27(1).
3 R v B [1995] 2 NZLR 172, (1994) 12 CRNZ 417 (CA) at 182.
be remedied by excluding the evidence of the respondent’s fingerprint being obtained from the demand note rather than dismissing the proceeding, and accordingly made such an order.
Jurisdiction for appeal
[13] The jurisdiction for this appeal was the subject of some debate. The Crown noted that s 215 Criminal Procedure Act 2011 (CPA) would ordinarily be utilised to advance a pre-trial appeal against a ruling on admissibility of evidence in a judge-alone trial.4 That section relevantly provides:
215 Right of appeal by prosecutor or defendant against certain pre-trial evidential decisions in Judge-alone case
…
(2)The defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision that is one of the following:
(a)making or refusing to make an order under section 79 (as to admissibility of evidence):
…
[14] However, it was submitted for the Crown that s 296 CPA can also be utilised for an appeal that falls under subpart 2 of pt 6 CPA (that is, pre-trial appeals) and that was the appropriate course to adopt in this case.5
[15]Section 296 relevantly states:
296 Right of appeal
…
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
4 Which I understand from counsel is the mode of trial in this case, as otherwise s 217 could be the relevant section.
5 Citing Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321; and D v R [2016] NZCA 190.
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(emphasis added)
[16] Thus, despite identifying both options, Ms Harcourt sought to proceed on the basis that the appeal was brought under s 296 of the CPA and the question of law was stated as follows:
(a)Whether the probative value of the evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding, taking into account the right of the respondent to offer an effective defence, so as to render the evidence inadmissible.
[17] The respondent submitted that the proposed question did not raise a question of law. It did not specify how the Judge misdirected himself at law, overlooked a relevant matter or considered an irrelevant matter or made a factual finding unsupported by evidence.6 Thus, if the appeal was advanced under s 296, it must be dismissed. In any event, even if I considered the appeal under s 215, the respondent submitted the District Court Judge’s decision to exclude the evidence was proportionate and proper in the circumstances.
[18] In my view, there are two impediments to the appeal proceeding under s 296. First, I accept the respondent’s submission that the appellant has not identified a question of law in the question proposed for determination. Furthermore, I do not consider the question arises “in proceedings that relate to or follow the determination of the charge” or “in the determination of the charge”.
[19] When questioned on how the appeal related to the “determination of the charge”, Ms Harcourt suggested that the ruling excluding the evidence would have the practical effect of determining the charge as the appellant would be unlikely to proceed. However, I consider that s 296 only affords a right to appeal on a question
6 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
of law where the decision itself determines the charge or relates to the determination of charges, not where, as here, the prosecution chooses not to proceed simply as a practical consequence of a pre-trial ruling.
[20] In my view, the issues which the appellant wishes to raise fall squarely within s 215. It is seeking leave to appeal a pre-trial decision on evidence admissibility. While the application was not brought as an application as to admissibility of evidence under s 79, that is the practical effect of the District Court Judge’s ruling and s 215(2)(a) provides jurisdiction to appeal what is in substance a ruling as to evidence admissibility. I note a similar approach focusing on the substantive effect of the ruling has been taken in relation to pre-trial evidence admissibility decisions in jury trials under s 217(2)(b).7 Accordingly, I do not accept there is jurisdiction to hear the appeal under s 296. Instead, I have considered it under the alternate route identified by the appellant being s 215.
Leave to appeal
[21] Section 215(2)(a) requires the defendant or the prosecutor to obtain leave from the first appeal court before it can appeal to that court against a decision making or refusing to make an order under s 79 as to the admissibility of evidence. This Court may refuse to give leave to appeal if it considers that it is expedient for the issue under appeal to be determined by way of an appeal after the trial.8
[22] In R v Leonard the Court of Appeal specified non-exhaustive criteria to be considered when determining whether leave to appeal before trial should be granted.9 The following criteria are relevant to the present case:
(a)whether the application involves the admissibility of evidence that is important to one of the parties;
7 Morton v R [2015] NZCA 322.
8 Criminal Procedure Act 2011, s 216(2).
9 R v Leonard [2007] NZCA 452, (2007) 23 CRNZ 624 at [13]-[14]. These criteria continue to apply under the Criminal Procedure Act: Hohipa v R [2015] NZCA 73, [2018] 2 NZLR 1 at [27].
(b)whether the proposed grounds of appeal are arguable and have merit; and
(c)whether the appeal will cause unnecessary delay.
[23]If leave is granted, the appeal procedure is that of a general appeal.10
[24] I am satisfied that the fingerprints taken from the demand note comprise a critical piece of evidence and will likely be determinative of how the case will proceed. Accordingly, leave is granted to bring the appeal under s 215(2)(a) and I turn now to address the substantive submissions made by the parties.
Submissions
Crown submissions
[25] Ms Harcourt submits, first, that the Judge placed too much weight on the possibility that further prints may have developed on the note after testing. In the view of the police expert, Mr Roberts, there is only a slim chance that further prints would have developed. More importantly though, even if the note was available for examination, and further fingerprints were found to have developed that did not belong to the respondent, Ms Harcourt submits this would not materially advance the defence case. It is open to the defence to submit there may be other prints on the note, that those prints may belong to other people, and that there is an innocent explanation for the respondent’s fingerprint, with or without the availability of the note. Ms Harcourt argues that the probative value of an independent examination of the note is limited and that Judge Kellar placed too much weight on the value of such an examination.
[26] Ms Harcourt also submits that the District Court incorrectly understood that the respondent conducted a transaction at the bank branch in the days before the offending. The transaction was in fact conducted at the Hornby branch of Kiwibank, whereas the offending was at the Upper Riccarton branch. The Judge referred to this point twice in his decision as a potential innocent explanation for the respondent’s fingerprint on the counter. Ms Harcourt submits that the corroboration of the
10 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49]-[53].
fingerprint on the note by the unexplained fingerprint on the counter reduces the risk of unfair prejudice arising as a consequence of admitting the fingerprint on the note as evidence.
[27] Finally, Ms Harcourt contends the Judge was wrong to consider the respondent was prejudiced by being unable to undertake handwriting analysis from the note. The handwriting analysis that was undertaken by police was inconclusive because the writing on the note was small and in upper case. Any analysis by the respondent is therefore likely to be equally inconclusive. Furthermore, the respondent is not precluded from obtaining his own handwriting analysis using the copy of the note. Ms Harcourt submits that no weight should be placed on this factor.
Respondent’s submissions
[28] The respondent submits that the Judge undertook a detailed analysis of the handling of the exhibit by the police and its significance to the defence case. He concluded, correctly, that the absence of the note significantly compromised the ability of the respondent to offer an effective defence and, given the circumstances in which the demand note came to be unavailable, constituted an abuse of process.
[29] While the Judge accepted the evidence was highly relevant, the absence of the note was due to unacceptable negligence on the part of the police, which was acknowledged by the Crown. The respondent submits the Judge correctly determined that exclusion of the evidence was proportionate to the impropriety.11 The Judge considered that the loss or destruction of the note constituted an abuse of process and he was entitled to exercise his inherent powers to prevent such an abuse and to make the exclusion order to secure a fair trial for the respondent.
[30] In response to specific matters raised in the Crown submissions, Mr Hall QC submits that there is nothing in the judgment which suggests the Judge gave undue weight to the possibility that further prints may have developed during storage and that such other prints may have been attributable to some other person.12
11 R v Le Breton, above n 1, at [38]-[40].
12 R v Le Breton, above n 1, at [34] and [37].
[31] Although the Crown submits that if further fingerprints did develop which did not belong to the respondent, the defence case would not be materially advanced, Mr Hall says that would depend on whether the prints were identified as matching with other prints, whose prints they were, and how they might relate to the note and the crime. They may or may not raise with the fact finder a reasonable doubt about the guilt of the respondent. The probative value from the defence perspective may be crucial, moderate or minimal, depending upon identification and interpretation of expert fingerprinting analysts. Again, he says the Judge did not place too much weight on this aspect. He simply acknowledged that the opportunity to examine the document might well have been helpful to the defence. It was that concern which fed into the Judge’s decision.
[32] In response to the Crown’s submission that the Judge placed undue weight on the erroneous understanding that there was a transaction by the respondent in that branch in the days preceding the robbery, Mr Hall notes that on the documents disclosed it is not clear where the transaction occurred, and this evidence has not yet been tested and was not before the Judge. In any event, the Judge referred to the matter in such a way that it is clear he did not place too much on this issue, as evidenced by the Judge’s comments at [36] where he said:
He may have an explanation as to why his fingerprint was on the counter as it seems he had visited the bank to conduct a transaction in the days before the offending.
[33] Mr Hall therefore submits that this issue was not a factor which influenced the decision and the finding of an abuse of process which focused upon what happened to the note, its processing, the retention records and procedures and its inexplicable loss or destruction. Mr Hall submits that whether there is an explanation for the counter fingerprint is irrelevant to the focus of the hearing which is the note.
[34] Finally, he responds to the submissions by the appellant to the effect that the original document would not be required to undertake a handwriting analysis. He points out that Mr Coyle, the respondent’s forensic fingerprint expert, considered that the original note was needed for such an exercise to be properly undertaken. It was therefore appropriate for the Judge to take this factor into account in evaluating the prejudice to and breaches of the rights of the respondent.
Discussion
[35] The issue on appeal is whether the loss of the original demand note compromises the respondent’s right to offer an effective defence and thus his fair trial rights, making exclusion of the fingerprint evidence a proportionate response to what has occurred in this case.
[36] The Court of Appeal in R v Harmer, after canvassing a range of decisions from overseas jurisdictions on this issue, identified two relevant considerations where evidence has been lost:13
(a)whether the evidence was lost due to acts or omissions by the police involving bad faith; and
(b)whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case.
[37]The Court went on to say:14
The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt. … in the absence of such deliberate conduct or other bad faith by the police – which is the position in this case – the concern should be with the effect on the defence of the absence of the evidentiary material rather than with whether the police have been negligent.
[38] I agree with Judge Kellar’s assessment that the loss or destruction of the note was not the result of bad faith on the part of the police.15 Instead, he described the chain of custody process as having been “improperly managed”. The focus on appeal, therefore, is whether the lost evidence would have been of real benefit to the defence case.
[39] I accept it is possible that further prints could have developed on the note after it was tested by the police. This is relevant despite the police expert’s opinion that the
13 R v Harmer CA324/02, CA352/02, 26 June 2003 at [91].
14 At [91].
15 R v Le Breton, above n 1, at [35].
likelihood of that happening is low. Judge Kellar was correct to consider that possibility as part of his assessment.
[40] However, there is merit in the Crown’s argument that access to the note would not materially advance the defence case. The respondent is not challenging the evidence of his fingerprint being found on the note, but rather wishes to establish whether there were any other fingerprints on the note. Even if another fingerprint was found to have developed that did not belong to the respondent, that would not explain why the respondent’s fingerprint was present. It would be relevant only as a way of putting forward an alternative theory of the case which is that he may have touched the paper before it was used for an unlawful purpose. However, this theory can be advanced without proof of other fingerprints being present. It is the Crown that has the onus of dispelling any reasonable doubt.
[41] I do not accept that the respondent is prejudiced by an inability to conduct handwriting analysis. A document examiner, Ms James, has already undertaken an examination using a copy of the note and comparing it to specimens which were attributed to Mr Le Breton. However, she observed that:
4.2The handwriting comparison to the specimens attributed to Anton Le Breton was limited by several factors. These included the small amount of writing on the questioned note, its basic style and also the nature of the specimen material. This was largely in lower case print and small in size, except for the entries on the envelope which appear to be in felt or fibre tip pen.
[42] While she identified a number of similarities between the handwriting on the note and the specimens attributed to the respondent, she concluded that:
4.3… due to the limitations in the examination these similarities are insufficient to support any opinion of authorship suitable for court.
The examination was therefore inconclusive.
[43] While Mr Hall suggests that the limitations related to the fact the note was a copy (as the document examiner had observed that she could not determine whether the copy showed the note enlarged or at actual size), it is clear that the limitations referred to by her are the limitations she listed in paragraph 4.2. Those are:
(a)the small amount of writing on the questioned note;
(b)its basic style; and
(c)the nature of the specimen material from Mr Le Breton which was largely in lower case print and small in size.
[44] Clearly the document examiner, Ms James, felt able to embark on an examination to determine authorship using a copy, but she was hindered both because of the small amount of writing on the note and the limitations of the specimen material she had available for comparison. She did not suggest that any limitation arose because she was dealing with a copy of the note, rather than the original. Although Mr Coyle suggests the original is required, he does not have expertise in this area, nor does he give a basis for this opinion. I therefore do not consider that this has prejudiced the respondent.
[45] I do consider it relevant that the Judge appears to have relied on the incorrect assumption that the respondent visited the Upper Riccarton branch where the robbery took place several days before the offending, when he denied doing so, and when the appellant confirms the visit was to the Hornby branch. The Crown submits that this strengthens its case for inclusion of the fingerprint identified on the note, because if that evidence is corroborated by an unexplained fingerprint on the counter, the risk of unfair prejudice is reduced. I agree. The respondent’s argument that the presence of other fingerprints on the note suggests he touched it before it was used in the commission of an offence is undermined if he does not have an innocent explanation for his fingerprint being on the counter of the bank in question.
[46] I accept that the right to a fair trial is fundamental and I consider the Judge made an appropriate decision in the circumstances as he understood them to be. However, I consider the balance is tipped in the other direction now that there is no longer a potentially innocent explanation for the respondent’s fingerprint being on the bank counter. In my view, the availability of the original demand note would not be of real benefit to the defence case because:
(a)it could not explain the respondent’s fingerprint on the bank counter;
(b)the suggestion that other people may also have touched the note can still be made, regardless of its availability; and
(c)there is no basis for suggesting the original is required to undertake a handwriting analysis that would assist the defence.
[47] As a consequence, I accept that the evidence of the fingerprint on the note should be admitted.
Conclusion
[48] The appeal is allowed. The District Court Judge’s decision to exclude evidence of Mr Le Breton’s fingerprint on the demand note is quashed and the evidence is ruled admissible.
Solicitors:
Raymond Donnelly & Co., Christchurch P H B Hall QC, Christchurch
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