R v Cameron

[2009] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND

CA568/2008
[2009] NZCA 87

THE QUEEN

v

PAUL JOSEPH CAMERON

Hearing:3 March 2009

Court:William Young P, Hammond and Robertson JJ

Counsel:D J Sharp and R T Hovell for Appellant

S B Manning and D M Kerr for Crown

Judgment:24 March 2009 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]       The appellant, Mr Cameron, was convicted on one count that on 31 October 1993 he murdered Balwinder Singh.  The conviction was entered on 15 February 2008 in the High Court at Gisborne, and Mr Cameron was sentenced to life imprisonment.

Background

[2]       Mr Singh was reported missing at the end of October 1993.  Before his disappearance, Mr Singh had been in a relationship with Mr Cameron’s mother.  Mr Singh, through that connection, was known to Mr Cameron.

[3]       In October 1993, Mr Cameron and a man called David Koia were growing cannabis in the Wharerata Forest, south-west of Gisborne.  The two men planned to go to the forest to tend to their respective plots and arranged to meet in Gisborne.  Mr Koia said that when Mr Cameron arrived, Mr Singh was with him.  Mr Koia knew Mr Singh but he was not expecting to see him on that occasion.

[4]       The three men then drove into the forest.  Mr Koia went to look after his plot, while Mr Cameron and Mr Singh went in a different direction.  Mr Cameron was carrying a bag which contained a rifle.  Approximately half an hour later, when Mr Koia was returning to the car, he heard two loud bangs.  The Crown case was that the noise that Mr Koia heard was gunshots from Mr Cameron shooting Mr Singh. 

[5]       Shortly after these noises were heard, Mr Cameron returned to the car.  Mr Singh was not with him.  Mr Cameron was agitated, and told Mr Koia to “just drive” when questioned about Mr Singh’s whereabouts.

[6]       Mr Singh’s skeletal remains were found in the forest in November 2005, by forestry workers.  As a result of their inquiries, the police received information from relatives and acquaintances of Mr Cameron which tended to suggest that he had had something to do with Mr Singh’s disappearance and death.

[7]       On 27 January 2006, Mr Cameron was interviewed by Detective Pepere about Mr Singh’s disappearance.  In the course of that interview, Mr Cameron was shown a photograph of Mr Singh.  He said he had never seen the man in the photograph, although later in the interview he admitted that his mother had an Indian boyfriend.  He accepted that he had spoken to family members, a former partner and a pastor about a shooting incident that occurred in the forest where he had a cannabis plot.  He said, “We went to grab a plot and there was gunfire going off all over the place and this guy we’ve never heard from him since”.  The statement, which Detective Pepere recorded in her notebook, was never challenged and was signed by Mr Cameron.

[8]       Police inquiries continued.  In October 2006, resort was had to “scenario evidence”, an investigative technique occasionally employed by the police which is designed to provide a suspect with an opportunity to speak about their involvement, if any, in a crime.  In this case, on 27 October 2006, Mr Cameron went to Wellington to meet with “Tony”, who was portrayed as the “boss” of a criminal organisation with whom Mr Cameron wished to become more closely associated. 

[9]       Broadly, the ostensible reason for the meeting was for Tony to determine if Mr Cameron could be trusted before becoming involved in further criminal activity with the group.  To achieve this, Tony raised with Mr Cameron the issue of Mr Cameron’s involvement in the homicide of a man in the area in which Mr Singh had lived some years earlier.  During the course of this conversation, which was recorded on video camera, Mr Cameron made a number of admissions, including that he had shot a person he described as a “Punjabi” and that he had just left the body in the forest.

[10]     Tony had arranged for Mr Cameron to fly back to Gisborne on 28 October 2006.  When Mr Cameron arrived at the airport, he was met by Detective Hunter and Detective Wilkie and arrested on a warrant for breach of community work.  He was cautioned, given his rights, and taken to the police station.

[11]     When this party arrived at the police station, Detective Hunter told Mr Cameron that he wished to speak to him about Mr Singh, that he was still under caution, and that he was a suspect in the murder of Mr Singh.  There was then an interview with Detective Hunter, structured around a series of disclosures of information that the police had obtained.  The undercover operation, including the video footage of the scenario evidence, was disclosed at that time.   When asked to clarify the meeting with Tony, Mr Cameron said, “I didn’t murder anyone”.

[12]     Mr Cameron remained in custody overnight on the arrest warrant.  The following morning Detective Wilkie spoke to him again, inviting him to go over both the notes from the day before and Mr Koia’s statement, which was then available.  Mr Cameron refused and engaged a lawyer.  There was some contact between Mr Cameron’s lawyer and the police.  The lawyer made it plain that Mr Cameron did not wish to make a statement or answer any further questions.  At 1:07 pm that day, Detective Hunter charged Mr Cameron with the murder of Mr Singh.  At about 5:00 pm that day, Mr Cameron asked to speak to Detective Wilkie.  He said that he needed to tell the detective what had happened because he could not handle it any more.  Mr Cameron agreed to make a video interview, which was made from 6:10 pm until 9:00 pm that evening.  During that interview, Mr Cameron admitted being with Mr Singh, and that he had “just pulled the trigger on the rifle” but that he had “accidentally shot him”.

[13]     Prior to trial, Mr Cameron challenged the admissibility of statements he had made to Tony, those made at the police station as a result of questions from the police, and those in the video-taped interview.

[14]     Venning J ruled that the statements made to Tony, the scenario evidence, was admissible.  He excluded the statements made at the police station, apart from the video-taped interview which the Judge ruled was admissible: HC GIS CRI 2006-016-003325 10 August 2007. 

[15] Mr Cameron sought leave to appeal to this Court from that decision, under s 379A of the Crimes Act 1961. Leave to appeal was granted, but the appeal was dismissed: [2007] NZCA 564.

[16] After his conviction for murder, Mr Cameron sought leave to bring a “leapfrog” appeal directly to the Supreme Court of New Zealand. That application, which essentially sought to challenge the admissibility of the scenario evidence and argue that this Court’s pre-trial ruling was erroneous, was dismissed: [2008] NZSC 60.

[17]     The appeal to this Court against the conviction was then lodged on 12 September 2008.

The appeal grounds

[18]     The appeal against conviction is put broadly under two heads.  First, a further attack is made upon the admissibility of the scenario evidence, notwithstanding the earlier determination of this Court that the scenario evidence was admissible.  The grounds advanced before us replicate to a large extent, but do not exactly overlap with, those advanced at the pre-trial appeal.  Secondly, it is said that the verdict was unreasonable, having regard to the evidence.

The scenario evidence

The nature of scenario evidence

[19]     Scenario evidence involves an investigative technique which has been employed by the police in various jurisdictions.  The suspect is invited to participate with an undercover police officer in a constructed event designed to simulate criminal activity.  During the course of his or her interaction with the particular police officer, the opportunity is provided for the suspect to make admissions about his or her involvement in a particular crime under investigation.

[20]     The technique has been held to be lawful in Australia, England and Canada: see Tofilau v R (2007) 238 ALR 650 at [219] (HCA) (per Callinan Heydon and Crennan JJ); R v Christou [1992] 4 All ER 559 (CA); and R v Grandinetti [2005] 1 SCR 27 (SCC). Mr Sharp did not challenge the lawfulness of the technique in this jurisdiction.

The complaints in this case

[21]     Scenario evidence is, however, subject to the requirements of the Evidence Act 2006, which can lead to the exclusion of evidence gained in this manner: s 28 (exclusion of unreliable statements); s 29 (exclusion of statements influenced by oppression); and s 30 (improperly obtained evidence).  Mr Sharp sought to resort to all of these provisions in support of his proposition that the use of the scenario evidence in this case had contributed to a miscarriage of justice.  The factual basis for these complaints about the scenario evidence, to the extent that there is one, rests on a somewhat common base.

The context of the scenario evidence

[22]     The meeting between Mr Cameron and Tony, known to the police as “Operation Draw”, was video-taped.  We have not viewed the video tape, although we have a copy of the 121 page transcript.  No objection was made to the accuracy of that transcript. 

[23]     The interview, which began at 1:30 pm on 27 October and continued until 3:42 pm, was conducted in a Wellington apartment, a “domestic” environment in which the participants were able to, and plainly did, move around freely at times. 

[24]     The scenario that the police had constructed involved a gang involved in fictitious criminal transactions with access to large sums of money.  Mr Cameron was allowed to handle some money.  Mr Cameron had shown interest in becoming associated with this organisation.  The discussion on 27 October was to see whether Mr Cameron could be trusted enough to “come aboard” the organisation.

[25]     There is no doubt that the deception in fact worked.  As Mr Sharp himself said, at no stage did Mr Cameron “show any sign of scepticism” and there is nothing in the transcript to indicate any signs of concern on Mr Cameron’s part.

The scenario evidence in closer detail

[26]     The essence of the scenario was that Mr Cameron’s possible involvement in a previous killing could be an impediment to his joining the criminal gang, or his advancement therein.  As Mr Manning rightly said, Mr Cameron had an incentive to deny his involvement in the killing, if in fact he had no such involvement.

[27]     We were taken to a number of passages in the “Operation Draw” transcript.  It is not necessary to set them all out.  In exchanges with the panel, Mr Sharp agreed that, as a matter of analysis, his suggested concerns about the possible impact on Mr Cameron could be broken down under four heads: first, an alleged perception of the potential for shooting in retribution for perceived misbehaviour; secondly, an alleged perception of danger to Mr Cameron’s family and the value of his own life; thirdly, an alleged perception that Tony could “fix” these sorts of things; and fourthly, that there were indications of some greed on Mr Cameron’s part, which might go to inducement and unreliability.  All of these four factors involve Mr Sharp’s somewhat strained interpretation of how these factors might be viewed.

[28]     The first point is that Mr Cameron did not give evidence at the pre-trial hearing, nor at trial.  As Mr Manning correctly emphasised in his written submissions, there was no evidential foundation for the proposition that anything that had been said had a particular impact on Mr Cameron.  The impact on Mr Cameron was suggested by counsel before us on appeal, from the side-lines as it were.

[29]     Secondly, the point of the charade which Tony was playing was that he wanted an admission to the killing so that it was out in the open between him and Mr Cameron and would thus enable him to fix it up with his corrupt police contact.  The unresolved issue was thus a problem to Mr Cameron joining Tony’s criminal organisation and in that sense the admission was not an impediment.  Rather, it was leaving the matter up in the air that was portrayed as being the impediment.  This is consistent with the way scenario evidence is set up: it provides a context and is an incentive for a criminal to confess a crime.  The scenario did not provide a context or an incentive for Mr Cameron to make a false confession to murder.  The ostensible point of the exercise from Tony’s point of view was to get the true position out in the open, so that he could deal with it.  On the scenario, in which so much turned on trust, a false confession would have been inconsistent with the relationship which Tony was trying to build with Mr Cameron.

[30]     Thirdly, there is no evidence that the things which Mr Cameron said were said out of “bravado” or puffery, nor do they have that appearance. 

[31]     Fourthly, consideration of the transcript as a whole demonstrates that Mr Cameron was distinctly reluctant to talk at first, and then increasingly regretful about what he had done.  Mr Cameron’s decision to talk to Tony about the killing led to him becoming emotional about what he had done, and why he needed to talk about it.  For instance, he said things such as: “it will haunt me until the day I die”; “it puts the shits up me every time I think about it”; “something that has haunted me for the rest of my life”; and “I mean fuckin’ it’s not something every man expects to see in his life”.  As Mr Manning emphasised, this sort of evidence suggests strongly that “the burden of guilt”, as described by Gleeson CJ in Tofilau v R (at [19]), was weighing heavily on Mr Cameron.

[32]     Those general comments aside, we turn to the specific subsets under which the complaints were advanced.

Reliability

[33]     Section 28 of the Evidence Act provides for the exclusion of unreliable statements.  It envisages a two stage process.  Section 28(1) applies to a criminal proceeding in which the prosecution proposes to offer a statement of a defendant if the defendant raises “on the basis of an evidential foundation” the issue of the reliability of the statement and informs the judge and the prosecution accordingly.  Then, under s 28(2), a judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability. 

[34]     Neither Venning J, nor Ellen France J for this Court on the pre-trial appeal, had any concerns under this head.  However, we have independently considered whether there is cause for concern here. 

[35]     Reliability is concerned with whether what was said was sound.  When provided with the opportunity to talk with Tony in circumstances in which the whole emphasis was on trust and honesty, Mr Cameron felt a need to disclose his involvement in the killing.  This was because he was convinced he could trust Tony. 

[36]     Importantly, there is factual confirmation in the evidence of other witnesses that what Mr Cameron said to Tony was, in all material respects, true.  These include such statements as Mr Cameron confirming that Mr Singh was Indian, an overstayer, and that Mr Singh was going out with his mother; Mr Cameron saying that he “did it” with his mate “Dave”, which is consistent with the evidence of Dave Koia; Mr Cameron confirming that the only other person he had told about his involvement with the homicide was his pastor (the pastor himself confirmed this); there was confirmation of what was said to the pastor by Mr Cameron’s ex-partner; Mr Cameron saying he did not bury Mr Singh but “just left him where he lay mate”, which is consistent with the nature of the remains found by forestry workers; and Mr Cameron telling Tony that what he did has “haunted him” for the rest of his life, which is consistent with what he said to his ex-partner.

[37]     Perhaps unusually, this is a case in which the first requirement of s 28(1) is not met because, as we have said, there was no evidence by Mr Cameron, or on his behalf, going to this issue.  But, even if viewed more broadly, there is no proper basis to doubt the reliability of the statements made by Mr Cameron.

Oppression

[38]     The appellant submits that there is an evidential foundation to suggest that his admissions in “Operation Draw” were influenced by oppression.  Section 29(1)(a) requires the appellant to provide that foundation.

[39]     This can be shortly dealt with.  There is no evidence in the transcript – and we were not urged to look at the video tape – of Tony engaging in oppressive, violent, inhuman or degrading conduct towards, or treatment of, the appellant: see s 29(5)(a).  On the contrary, Mr Cameron saw distinct opportunities to advance his own criminality by joining the gang.  He voluntarily put forward the account he did.

Improperly obtained evidence

[40]     Notwithstanding Mr Sharp’s earlier acceptance that the investigative technique of acquiring scenario evidence is lawful (see [20] above), he kept straying perilously close to the argument that such a technique is inherently unfair or inappropriate, leading to the evidence being regarded as improperly obtained.

[41]     This Court has had to consider deception used by the police as a technique to obtain admissible evidence on a number of occasions in recent years.  The authorities were helpfully reviewed by Gault J in R v Ahamat CA143/00 19 June 2000, in the context of a recorded telephone conversation orchestrated by the police between a complainant and an accused.  In the course of reviewing those authorities, he said (at [11]):

There must be unfairness in the manner in which the evidence is obtained (bearing in mind that even illegally obtained evidence is not automatically excluded) or unfairness likely to arise from the giving of the evidence at the trial. … To exclude probative evidence on fairness grounds is warranted only when that is consistent with the interests of justice or when that is necessary to ensure the fundamental right of an accused to a fair trial.

See also R v Ross [2007] 2 NZLR 467 (CA) and R v Petricevich [2007] NZCA 325 (CA).

[42]     The governing principle remains the same between those cases and the instant case: the accused is talking voluntarily to a person about his or her involvement in a crime and, in each instance, he or she is unaware that the person to whom he or she is speaking is either a police officer or somebody who had been given questions to ask by a police officer.

[43]     A review of the entire transcript shows that throughout the 27 October meeting, the essential character of the discussions between Tony and Mr Cameron was relatively relaxed.  There was nothing going anywhere near overbearing questioning and/or intimidation.  Mr Cameron was left free to volunteer any information about his involvement with Mr Singh.  He chose to do so.

Verdict against the weight of evidence

[44]     The Crown case to establish cause of death and murderous intent against Mr Cameron rested upon the following essential evidential features, none of which (apart from the scenario evidence) were challenged by the defence:

·     Mr Cameron went into the forest with Mr Singh.

·     Mr Cameron was carrying a bag that contained a rifle.

·     Mr Koia heard two shots, and possibly a muffled third shot.

·     The shots which Mr Koia heard came from the direction of where Mr Cameron was known to have a cannabis plot.

·     Mr Cameron returned after the shots were fired.  He was still carrying the bag.

·     Mr Singh did not return with Mr Cameron.

·     Mr Koia did not see or hear other people in the area at the time.

·     Mr Cameron was “agitated” when he returned to Mr Koia.

·     When Mr Koia asked Mr Cameron where Mr Singh was, Mr Cameron replied, “Don’t worry mate, just drive”.

·     Not long after Mr Singh went missing, Mr Cameron went to Mr Singh’s flat and asked his flatmate to borrow Mr Singh’s car.  He did not ask where Mr Singh was.  The flatmate refused, and later that night Mr Cameron stole the car.

[45]     In addition to the facts set out above, the Crown was able to point to a number of admissions (leaving the scenario evidence completely aside), where Mr Cameron admitted to shooting an Indian man in the forest.  The Crown relied in particular on what was said to Mr Cameron’s ex-partner, his pastor, and to Detective Wilkie.

[46]     The law to be applied in a challenge of this kind has been authoritatively settled by the Supreme Court of New Zealand in R v Owen [2008] 2 NZLR 37, citing R v Munro [2008] 2 NZLR 87 (CA) at [86]-[87] with approval (at [14]):

The correct approach to a ground of appeal under s 385(1)(a) is to assess, on the basis of all of the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant.  We consider the word “ought” is a better indication of the exercise to be conducted than the word ‘must’ used in [R v Ramage [1985] 1 NZLR 392 (CA)]. It emphasises the task that the Court has to perform. This test also, in our view, accords with the statutory wording.

We consider that McLachlin J’s comments in R v W(R) [1992] 2 SCR 122 encapsulate the main elements of the test. The test is not whether the verdict is one that no jury could possibly have come to. A verdict will be deemed unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt. The Court must always, however, keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact – see the comments in [R v] Biniaris [2000] 1 SCR 381 and those in [R v Mareo (No 3)][1946] NZLR 660.

[47]     In this case, there was an overwhelming volume of evidence, even apart from the scenario evidence, that it was Mr Cameron who had shot Mr Singh.  As to Mr Cameron’s intent at the time that he shot Mr Singh, we need to add some further facts.  The passage of time and the nature of the environment was such that the condition in which the remains were found conspired to ensure that little in the way of evidence remained.  The skeleton lay in a “watercourse”; there was a slip just below where the skeleton lay; branches had fallen from the trees above; these trees had considerably increased in size in the intervening 12 years; animals had disturbed the scene; not all of the skeleton was present; and the skull lay some distance apart from the rest of the skeleton.  No bullets were located and no damage to the skeleton could be attributed to bullet wounds..

[48]     However, there were found to be some fractures to the skull.  There was a dispute between the pathologists about this.  The Crown pathologist thought that these fractures were caused post-death; the defence pathologist thought the fractures were caused prior to death.

[49]     The defence pointed to this last factor to develop an alternative theory that Mr Singh may have fallen and hit his head.

[50]     In summing up, Potter J directed the jury as follows:

Mr Sharp referred to a possible scenario where Mr Cameron fired a shot at [Mr Singh], the shot missed, [Mr Singh] stumbled and fell and possibly rolled down the steep bank hitting his head on something hard which caused a skull fracture, which in turn caused death.  Of course there is no evidence to support or provide a basis for such a scenario.  It is a theoretical possibility posed by Mr Sharp in his closing address.  But even if you were to consider that such a scenario was possible I must direct you that the sequence of events would constitute murder.

[51]     The appellant’s contentions with respect to this are somewhat confusing.  No appeal point has ever been raised, whether in the written submissions, or in oral argument before us, that this amounted to a misdirection.  Rather, Mr Sharp put his point concisely in his submissions:

The verdict was unreasonable or cannot be supported having regard to the evidence.  In particular given the expert evidence provided to the jury, the jury could not reasonably have excluded a verdict of manslaughter.  In particular the issue of causation of death ought to have left the jury with doubt concerning the facts surrounding the death and as a logical consequence the jury could not have ruled out the death having being from an unlawful act as opposed to one which satisfied the requirements for murder.

[52]     Given an absence of challenge to the direction, it is difficult to see how this point could possibly succeed.  It was open on the evidence for the jury to infer – and it could only ever have been an inference – that Mr Cameron had the requisite murderous intent at the particular point of time that he fired the shots, whichever factual scenario was correct.  We cannot say that a jury acting reasonably ought to have entertained a reasonable doubt as to Mr Cameron’s intent, particularly when the evidence appears overwhelmingly to indicate that he shot at Mr Singh more than once.

Conclusion

[53]     It follows that there is no basis on which we could responsibly hold that no jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of Mr Cameron on the issue of whether he shot Mr Singh, and with a murderous intent.

[54]     The appeal against conviction is dismissed.

Solicitors:
Burnard Bull & Co, Gisborne for Appellant
Crown Law Office, Wellington