R v Davis

[2008] NZCA 424

IN THE COURT OF APPEAL OF NEW ZEALAND

CA618/07
[2008] NZCA424

THE QUEEN

v

TREVOR LINDSAY DAVIS

Hearing:25 September 2008

Court:O'Regan, Chisholm and Gendall JJ

Counsel:W C Pyke for Appellant

K J Glubb for Crown

Judgment:16 October 2008 at 2.30 pm

JUDGMENT OF THE COURT

AAppeal against convictions on counts 1 and 2 dismissed.

BAppeal against conviction on count 3 allowed.  Conviction quashed.  No retrial ordered.

CAppeal against sentence allowed.  Sentence on count 2 fixed at seven years’ imprisonment.

REASONS OF THE COURT

(Given by Gendall J)

[1]       The appellant was convicted following a jury trial on counts of aggravated burglary, wounding with intent to cause grievous bodily harm, and kidnapping.  He was sentenced to eight years’ imprisonment on the count of wounding, with concurrent terms of five years’ imprisonment on the counts of kidnapping and four years’ imprisonment of the count of aggravated burglary.  He appeals against convictions and sentence.

Background

[2]       The complainant lived with his wife and daughter in their home in South Auckland.  At 9.20pm on 27 November 2004, three men broke into the home and the complainant was initially attacked by one, later identified by him as Mr Peter Muller, in the kitchen.  He was struck about the head with a weapon.  He put up a fierce resistance so the assailant called for assistance from another who had been standing, inside the doorway, apparently as a lookout.  That person was identified as the appellant.  He entered the conflict and both accused continued the attack upon the victim, striking him about the legs with the steel bar.  The complainant grabbed a knife and attempted to strike the appellant with it.  In the meantime, the third intruder had entered the lounge and disabled the complainant’s wife, binding her hands and mouth with tape.  That person has never been identified.

[3]       Such was the resistance put up by the male victim that all the assailants departed and the police were called.  At the scene a cellphone was found which was later to be identified as that of the appellant, and a fingertip of a glove was found which, after scientific analysis, revealed mixed DNA of the appellant and the complainant.

[4]       Evidence at the trial was that the complainant had been visited by the appellant at his home some weeks before the home invasion, in order to serve some debt-related documents upon him.  The evidence was that the complainant was able to identify the appellant as one of his attackers after being shown a photographic montage. 

[5]       The appellant admitted to the police that he had been a visitor to the complainant’s home on the earlier occasion in connection with debt collection, but denied being present when the home invasion and assaults upon the complainant and his wife occurred.  His explanation for the presence of his cellphone and DNA on the glove tip was that he had used his phone on the day prior to the date of the offending (there was a record of him having made a call from it on that day) but had lost it and did not “recollect having [his] phone from that time on”.  He said that he had repaired the toilet of a co-accused, Mr Muller, on the previous evening, used rubber gloves in doing so and left them in a rubbish bag at the home of a Mr Buckley for whom he had undertaken other tasks.  He provided some equivocal evidence of an alibi nature as to his work time recorded in his driving logbook.  He gave evidence at trial and said he had earlier gone with Mr Muller to the premises of the complainant, at the direction of Mr Buckley, to deliver some papers to the complainant.  This was in July/August 2004, about three months before the events which are the subject of this appeal.  He denied being present on the day of the home invasion and attack.

[6]       The Crown’s case was that the appellant, together with Mr Muller and the unidentified third person, broke into the complainant’s home and committed the crimes, with the appellant originally acting as a lookout and then becoming involved at Mr Muller’s request in the direct physical attack upon the complainant.  Further, that the appellant was a party to the third intruder’s acts of detaining and binding the complainant’s wife.

[7]       The jury was unable to agree on any verdict in respect of Mr Muller.  The appellant was convicted all three counts, despite his claim in cross-examination that he had been “framed” by Mr Buckley.

Submissions on appeal

[8]       On the behalf of the appellant, Mr Pyke submitted that the Judge failed to warn the jury pursuant to s 126(2)(a) of the Evidence Act 2006 that a mistaken identification can result in a serious miscarriage of justice.  Secondly, he submitted that the Judge’s directions to the jury were wrong in law, confusing, and inaccurate because he suggested that the appellant was charged with the wounding crimes as a principal even though that had not been alleged by the Crown.  Further, the Judge failed to differentiate between the elements necessary to establish guilt as a principal and a secondary party under s 66(2) of the Crimes Act 1961, especially in relation to the kidnapping count.  He said that the Judge’s directions were inadequate in applying the legal elements to the facts of the case to establish guilt as a party.

Discussion

[9]       The Crown accepted that the trial Judge’s direction on identification did not include the warning required by s 126(2)(a).  The Judge gave the orthodox warning about identification evidence as formerly required.  But s 126 now requires an additional mandatory warning that a mistaken identification can result in a serious miscarriage of justice, where the case against the defendant:

depends wholly or substantially on the correctness of one or more visual or voice identifications of the defendant or any other person.

[10]     Obviously, this was such a case, and the Crown concedes the point.  But there existed strong circumstantial other evidence pointing to identification of the appellant, namely the presence of his cellphone at the scene and his DNA on the glove tip.  The real issue is whether, in terms of this Court’s decision in R v Hohepa [2008] NZCA 316, there was a reasonable possibility of an acquittal even if the Judge had given a direction in compliance with s 126(2)(a).

[11]     The jury was warned about the possibility of an honest witness being mistaken about identification and referred to those factors the Crown had advanced to support the reliability of the identification evidence and those matters upon which the defence relied.  Clearly the jury were alive to the issue of mistaken identification given that the jury was unable to unanimously agree on all three counts as they related to the co-offender.

[12]     As was the case in R v Hohepa, we are satisfied there is no reason to doubt the jury adopted anything other than the careful approach notwithstanding the failure to give a s 126(2)(a) warning.  The Judge had told them what was required and, the jury must have accepted the Crown proved the identity of the accused beyond reasonable doubt, especially given the strong items of circumstantial evidence which could not be satisfactorily explained by the accused.  Accordingly, on this point, we would apply the proviso to s 385(1).

Judges’ directions as to parties

[13]     The appellant contends that the Judge did not tailor his directions as to parties to the particular facts or evidence.  It was contended that the Judge’s directions were confusing in respect of the counts involving the attack upon the male complainant.  The Judge advised the jury that they could convict only if satisfied beyond reasonable doubt that:

They were the ones that entered into the residence and that the entering on that day was with the intention to either steal money or commit an offence … referred to is the assault in the causing of grievous bodily harm. 

[14]     It was argued that this direction was inadequate in regard to the appellant’s initial role as lookout.  But, the actual evidence was that, whilst initially employed as the lookout, the appellant had entered the home when called by Mr Muller and he then took part in the attack upon the complainant either as a principal assailant or aided Mr Muller by restraining the complainant whilst blows were being struck.  Once identification was established, the appellant’s role in relation to the crimes of violence upon the male complainant was abundantly clear.  It might have been preferable for the Judge to separate out the two ways in which the appellant could have been found guilty of those counts, whether as a principal assailant or a party.  But we are satisfied that the directions were adequate given the evidence, and bearing in mind that the sole issue in the trial was one of identification.

[15]     There is however concern as to how the Judge’s directions may have affected count 3 of kidnapping.  The Judge told the jury that the appellant and Mr Muller could be found guilty only if the jury was satisfied beyond reasonable doubt they unlawfully detained the complainant’s wife.  Apart from referring to identification, the Judge then dealt again with the question of parties again as follows:

The Crown case charges that these two acted together as parties committing these offences.  The way the evidence had unfolded is that only one of them carried the metal bar and only one of them hit them with the metal bar and only one of them bound up [the complainant’s wife].

The law allows that when two people acted together with a common intention then they are parties to that offence which was committed wherever, by either one of them.  So if you are satisfied beyond reasonable doubt that they both entered the building together and that they acted together in the course of the events that you need to consider that they would then be parties to whatever offence the other committed.  Now, again that was not directly challenged to you but I need to explain that to you as a matter of law, that the offences, although committed by one rather than the other, if you find it that way, then if you are satisfied at the time of the commission of those offences they were acting together with a common intention, then you can find them guilty.  They are equally guilty of the other’s offending during the course of the general occasion as referred to by counsel as the home image.

[16]     The indictment alleges that the appellant and Mr Muller “together with another” unlawfully detained the female victim.  The Crown contends that the evidence showed that three men had entered the address by force pursuant to an established plan, pursuing a joint enterprise and acting in concert, wearing gloves and disguises (with one of them at least carrying black tape – the inference being that this was to be used as a means of restraint). 

[17]     The Crown says in reality all were joint principals. While it concedes that the Judge’s directions may have been truncated, it claims that they were adequate, and that in fact by referring to the “common intention” in the sense of s 66(2) the Crown had been required to meet a higher test than ought to have been the case.

[18]     The evidence was that the kidnapping or detention of the complainant’s wife was performed physically only by the unidentified third offender, and that the appellant took no active part in that.  Initially he was the lookout, and then took an active part in the attack upon the male complainant.  Whilst the common intention may be established by inference from the joint conduct of parties, the real issue was whether the appellant knew that a kidnapping or detention of the female could well happen or was a real and substantial risk in the course of the carrying out of the invasion into the home and attack upon that victim’s husband: R v Curtis [1988] 1 NZLR 734 at 739 (CA). So the issue was whether the parties directions was tailored to record whether the appellant was a party to a common intention to prosecute the unlawful purpose of kidnapping, in the sense that he knew that such could well happen or was a real or substantial risk in the course of the other offending.

[19]     The Judge’s directions as to parties in respect of counts 1 and 2 may have posed a more stringent test for the Crown.  However, in respect of count 3, the Judge needed to spell out in the clearest terms (given that there was no evidence of any physical participation at all on the part of the appellant) that for him to be convicted of being a party to the crime of kidnapping, the jury had to satisfied that the three came to an agreement to do something unlawful (such as home invasion and attack), and that whilst the offenders may have had different roles and degrees of involvement, each had agreed to participate to achieve the common goal.  Crucially, the jury had to be clearly directed that the appellant would be a party to the kidnapping offence if the kidnapping was known to be something that could well happen during the course of those events.  The directions do not explain the requirement that the offence of kidnapping was known by the appellant to be something that could well happen while the three offenders were carrying out their unlawful enterprise.

[20]     Given the directions, the possibility cannot be excluded that the jury concluded the appellant was guilty simply because the kidnapping was an offence committed in the course of the enterprise, whether or not he knew it was something that could occur.  We think there was misdirection in this regard.  It requires the conviction for kidnapping to be quashed.

Sentence appeal

[21]     The Judge described the charges as very serious and took as a starting point a term of nine years’ imprisonment on the lead sentence of wounding with intent to cause grievous bodily harm.  He allowed a small discount for personal mitigating circumstances and, to a limited extent, ill health.  He fixed a sentence of eight years’ imprisonment on the lead sentence, five years’ imprisonment on the kidnapping count and four years’ imprisonment on the count of aggravated burglary.

[22]     In terms of R v Taueki [2005] 3 NZLR 372 (CA) there were sufficient aggravating features to place the offending in the 9-13 year band. Although the Judge did not separately identify those features, there existed extreme violence, premeditation, use of a weapon, attack to the head, multiple attackers, and home invasion. A starting point of at least nine years’ imprisonment was justified. There can be no quarrel with the allowance given for personal mitigating features. However, the sentence has to reflect the overall culpability and criminality of the appellant’s actions. Given that the conviction for kidnapping is quashed, some reduction in the sentence is required. It does not warrant a substantial reduction given that the more serious offending related to the breaking into the home and the violent attack upon, and wounding of, the male complainant. In our view a reduction of one year is appropriate.

[23]     Accordingly, on the lead sentence of wounding with intent to cause grievous bodily harm, the appeal against sentence is allowed and the sentence quashed and replaced with the sentence of seven years’ imprisonment.  On the charge of aggravated burglary a sentence of four years’ imprisonment is upheld, with sentences to be served concurrently.

Conclusion

[24]     For those reasons, the appeal against conviction in respect of count 3 is allowed, that conviction is quashed and there will be no order for a retrial.  The appeal against convictions on counts 1 and 2 is dismissed.

[25]     The appeal against sentence is allowed and the sentence on the count of wounding with intent to cause grievous bodily harm is quashed and replaced with a sentence of seven years’ imprisonment.

Solicitors:
Crown Law Office, Wellington