R v Ford CA466/05

[2006] NZCA 414

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [34]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR

LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA466/05

THE QUEEN

v

JAMES TRIPLE M FORD

Hearing:         17 May 2006

Court:            O'Regan, Panckhurst and Potter JJ Counsel:   J K W Blathwayt for Appellant

G J Burston for Crown

Judgment:      23 May 2006

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed and a retrial is ordered.

BOrder prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [34]) in news media or on Internet or other publicly available database until final disposition of retrial.  Publication in Law Report or Law Digest permitted.

R V JAMES TRIPLE M FORD CA CA466/05  23 May 2006

REASONS

(Given by Panckhurst J)

Introduction

[1]      The  appellant  was  found  guilty  in  the  District  Court  at  Wellington  on

17 October 2005 of charges that he possessed a .22 rifle, and ammunition, without lawful, proper and sufficient purpose contrary to s 45 of the Arms Act 1983. Subsequently, Mr Ford was sentenced to two  years three  months  imprisonment. This appeal is against both conviction and sentence.

[2]      The only ground advanced in support of the conviction appeal is that the trial miscarried as a result of material which was disclosed to the jury in relation to other counts in the indictment, in relation to which the appellant was discharged pursuant to s 347 of the Crimes Act.  Counsel argued that such material was necessarily of a kind  which  the  jury  could  not  have  put  aside  when  considering  the  remaining charges.

[3]      The sentence appeal is based on the normal ground that the sentence imposed by the trial Judge, Judge Behrens, was clearly excessive.

The course of the trial

[4]      Originally the  indictment  contained  nine  counts concerning  events  which occurred between 21 December and 25 December 2004, at Masterton.  The first six counts related to events which occurred on 21 December, while count 7 charged the possession  of  explosives  (.22  ammunition  and  shotgun  rounds)  on  or  about

22 December 2004, and counts 8 and 9 related to Christmas Day.

[5]      On Tuesday, 21 December there was a party at the home of the appellant and his partner, Ms Whaanga.  An argument developed between Mr Ford and his partner. He was said to have obtained a cut-down .22 calibre rifle with which he threatened Ms Whaanga.   This gave rise to count 1, an allegation of unlawful carriage of a

firearm.  The next charge was one of assault on Ms Whaanga, based on an allegation that she was struck with the butt of the rifle.

[6]      At about this point, on the intended Crown case, people at the party scattered, including a Mr Wade.   However, he subsequently encountered the appellant on an adjacent property and was shot in the knee with the rifle.  This gave rise to count 3, a charge of wounding.

[7]      Subsequently the appellant  was said to  have threatened  to  kill Mr  Wade (count 4) and to have removed him to another property in Masterton, where he was unlawfully detained (count 5).  Finally, there was a further charge of threatening to kill Mr Wade (count 6) and the charge of possession of explosives in the form of rifle and shotgun ammunition (count 7).

[8]      This spate of alleged offences ended when Mr Wade escaped from the house where he was being detained and was taken, eventually, to Wellington Hospital for treatment to his knee.  The Crown also alleged that the appellant was then absent for about three days.  Then, on Christmas Day, Mr Ford was apprehended at a Masterton service station by police officers.   A search of the car which he was in with his partner, Ms Whaanga, and another man, revealed a .22 rifle, and ammunition (counts

8 and 9).

[9]      The trial on all counts commenced on Thursday, 13 October 2005.   The prosecutor introduced the case to the jury in somewhat greater detail than we have above.  The Crown opening was recorded and a transcript of it made available to us for  the purposes of this appeal.    It  was expressed  in suitable terms.    Naturally enough, the main emphasis was upon the more serious counts referable to the complainant  Mr  Wade.    Counts 8  and  9  were only mentioned  in  passing,  with reference to the appellant’s apprehension on Christmas Day.

[10]     Mr Wade was the first witness called by the Crown.   He declined to give evidence.  The Judge said:

Q.   Mr Wade, I take it that you are refusing to answer questions.  Do you have any excuse for not answering questions?

A.   For my safety, for my family’s safety.   What are the cops gonna do?

They can’t do anything.  I may as well dig my own grave.

Q.   I am going to direct you, Mr Wade, to answer the questions that are put to you by the Crown by Mr Laurenson.   Will you answer those questions?

A.   (No response).

By this point it was late in the day and the prosecutor sought an early adjournment until the following morning.  This was granted.

[11]     On  14  October  the  Crown  called  another  witness,  being  the  mother  of Mr Wade’s partner.   Although she  did  not  refuse to  give  evidence,  the  witness claimed that she was unable to remember anything of the events which occurred at the party on 21 December, or in its aftermath.  In the result, she gave no evidence in support of the Crown case.

[12]     At this point Mr Wade was recalled.  He again refused to give evidence.  He was placed in custody until 2.00 pm.  The Court adjourned.  At that time, and in the absence of the  jury,  Mr  Wade was placed  in  the  dock,  contempt  of court  was explained to him and he was offered the opportunity of legal advice.   He did not wish to take advice.  After some discussion the Judge decided to discharge Mr Wade “without further punishment”.

[13]     The trial continued in court for chambers.  Mr Blathwayt sought discharges in relation to counts 1 to 7.  The Judge made an order pursuant to s 347.  A sentencing indication was then sought in relation to counts 8 and 9, but, in the event, nothing came of this initiative, and Mr Ford maintained his not guilty plea to the remaining counts.

[14]     The balance of the day was taken up with evidence  from mainly  police officers concerning the appellant’s apprehension on Christmas Day and the finding of the firearm and ammunition in the car.  A further four witnesses gave evidence for the Crown on Monday, 17 October.

The defence case

[15]     The appellant neither gave, nor called, evidence in his own defence.  The rifle and ammunition was found concealed behind a  door lining  in the  car  in which Mr Ford was a passenger at the time of his apprehension on Christmas Day.   The vehicle belonged to, and was being driven by, another man at the time.  Ms Whaanga was also in the vehicle.   When asked, the appellant denied any knowledge of the firearm and ammunition.

[16]     The  Crown  case  against  him  was  circumstantial  in  nature.    A  security videotape recorded at the service station provided photographic evidence of where the appellant was seated in the car.  This placed him in the passenger’s seat beside the door lining, behind which the items were concealed.  Only one screw secured the lining in place.  The rifle was loaded.  The safety catch did not work.  Beneath the rifle was a damp cloth which was consistent, the prosecutor argued, with the items having been placed in the car door recently.

[17]     The defence was a denial of possession.  The other elements of the charges were not in dispute, including the absence of lawful, proper and sufficient purpose for possession of the items (in relation to which there was a reverse onus).   In essence, Mr Blathwayt submitted to the jury that the circumstantial factors relied upon by the Crown were insufficient to establish possession against the appellant to the required standard.

Basis of the conviction appeal

[18]     When  the  appellant  was  discharged  in  relation  to  counts  1  to  7  on  the afternoon of 14 October, Mr Blathwayt applied to the trial Judge for the jury to be discharged.  This was on the basis that it was not possible for the appellant to receive a fair trial in relation to the remaining counts, because of what had already occurred in relation to the other counts. The Judge declined this application.

[19]     Reasons were not given, or at least if they were, we do not have a record of them.  Trial Ruling (6) records:

All right we will go ahead with the trial then.

Mr Blathwayt recalls that this was the Judge’s final comment at the end of a discussion relating to the application to discharge the jury.

[20]     In this Court counsel argued that “the drama inherent” in both the Crown opening, and arising from the attempts to persuade Mr Wade and the female witness to give evidence, was such that it was unrealistic to expect the jury to be unaffected. The appellant’s right “to a fair and public hearing by an independent and impartial court”, in terms of s 25(a) of the New Zealand Bill of Rights Act 1990, could not be assured.   Regardless of the trial Judge’s endeavours to restore the balance in summing-up, an unacceptable risk of a miscarriage of justice remained.

[21]     For the Crown Mr Burston advanced two main points.  The first was that the evidence  relevant  to  counts  8  and  9  was  discrete,  being  the  evidence  of  the appellant’s apprehension at the service station and of a search of the vehicle which followed.  This separation in terms of time, place and circumstance from the subject- matter of the earlier counts, meant that it was realistic for a jury to exclude what had gone before from their minds and give the appellant a fair hearing.   The second argument was one based upon a very strong warning which was given by the trial Judge in the course of his summing-up.  We shall refer to its terms shortly.

Was a fair trial attainable?

[22]     Before we turn to this question it is as well to mention a jurisdictional point. The power to discharge a jury in the course of a trial is contained in s 374 of the Crimes Act.  Relevantly the section provides:

(1)     Subject  to  the  provisions  of  this  section,  the  Court  may  in  its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.

…….

(8)     No Court may review the exercise of any discretion under this section.

[23]     It was not contended that the Crown opening followed by the failure of two witnesses to give evidence, were events which did not fall within the category of “any emergency or casualty” which empowered the Judge to  discharge the  jury. This much was accepted.  With reference to subs (8) Mr Burston also accepted that although the exercise of the discretion not to discharge (or to do so, as the case may be) was not susceptible of subsequent review, this provided no bar to the jurisdiction of  this  Court  to  intervene  on  appeal  if  it  is  of  opinion  that  the  trial  decision occasioned a miscarriage of justice: R v Marshall [2004] 1 NZLR 793 (CA), at [16] of the judgment delivered by McGrath J. The distinction is that this Court is not engaged in a review of the trial Judge’s exercise of discretion (which could only occur when the trial has not run its course), but in assessing the fair trial consequences of the decision, in particular whether it occasioned a miscarriage of justice.

[24]     We are of the opinion that the trial events to the point where the appellant was discharged in relation to counts 1 to 7, were dramatic and obviously had the potential to sway the minds of the jurors.  This is not to say that the Crown opening was  in  any  way  inappropriate.    A  reading  of  it  confirms  that  the  prosecutor introduced the case  in an appropriately firm,  but  fair,  manner.   In so  doing he inevitably dwelt on the narrative of events in relation to the assault of the appellant’s partner, the wounding and kidnapping of Mr Wade and the latter’s escape from the situation in which he found himself.

[25]     Then, not only did Mr Wade refuse to give evidence, occasioning an order for his imprisonment overnight, but he also said in front of the jury that his refusal was prompted by concern for his family’s safety.  To give evidence would mean that “I may as well dig my own grave”.   The Crown’s difficulty in securing evidence in support of the charges was further brought home when, the following morning, the female witness effectively refused to give evidence, as did Mr Wade, although his recall and the decision not to  impose any further penalty for contempt  of court occurred in the absence of the jury.

[26]     Was it possible for the jurors to dismiss what they had seen and heard from their minds, so as to ensure a fair trial in relation to the remaining counts?  While

there is some basis for Mr Burston’s submission that these counts were based on evidence which was separate and discrete, this is not a convincing argument.  There was a separation in time of a few days before the appellant was apprehended at the service station.  But otherwise, the apprehension was a direct result of what had gone before.

[27]     Moreover, the remaining counts alleged the possession of a loaded .22 calibre rifle.  The sole issue at trial was whether the appellant was in possession of the rifle and ammunition.  A .22 rifle had, of course, loomed large in relation to the earlier counts.    It  was,  therefore,  a  situation  in  which  the  Crown  opening,  and  the subsequent events, carried the potential to unfairly influence the jury in relation to the subsisting charges.

[28]     We consider that this case is indistinguishable from R v Armstrong (1989) 53

SASR 25 in which a conviction was quashed on account of material opened to the jury,  which  was  not  supported  by  subsequent  evidence.     We  do  not  accept Mr Burston’s submission that the present case is different, because counts 8 and 9 concerned events disconnected from, or unrelated to, the offending material.  There is a clear relationship between the two.

[29]     After  the  appellant  was  discharged  in  relation  to  the  earlier  counts, Judge Behrens did not warn the jurors to dismiss from their minds the events to that point.  However, in summing-up he gave this direction:

[8]       You know, having heard the Crown opening, that it was intended that evidence was to be called on a number of serious charges involving allegations of violence – allegations of violence against the accused Ford. One was a charge of wounding by shooting.   You heard and saw the complainant.   You know that he did not give evidence and you heard him say at one stage why.  You know that of the nine charges in the indictment only two have proceeded before you.   Your decisions on these two counts must not – must not be influenced by that knowledge.   It would be wrong and unjust for you to allow your knowledge of these things to weigh against the accused.  The decisions that you now make are to be made only on the evidence  given  in  this  Court  in  relation  to  Counts  8  and  9.    Do  you understand that?   Thank you.   So put aside any feelings of sympathy or distaste or anger.  Make your decision or decisions objectively according to the relevant evidence as it applies to Counts 8 and 9.

[30]     Mr  Blathwayt  was  critical of the  direction,  at  least  to  the  extent  that  it reminded the  jurors of the opening and of Mr Wade’s failure to give evidence, including the reason he gave for not doing so.  Mr Burston responded by submitting that reference to these matters was appropriate, because thereby the Judge did not shrink  from what  had  occurred,  before  he  gave  an  emphatic  direction  that  this “knowledge”  could  not  influence  them.    We were also  told  that the  Judge  lent emphasis to the direction by asking whether jurors understood him, to which there was affirmative nodding, before the Judge said “Thank you” and continued.

[31]     We are satisfied that the direction was in suitably emphatic terms and tailored to the  situation of this case.    Many Judges  would  have  chosen  to  give  such  a direction before the trial continued in relation to counts 8 and 9 on 14 October.  This approach would have preserved the opportunity to return to the issue in summing-up and repeat the direction, in terms considered appropriate at that late point in the trial. But, that said, the issue of the timing of the direction was something about which opinions may differ.

[32]     The real question is whether an emphatic direction to the jury, whenever given, was sufficient to meet the risk entailed in not discharging the jury in the particular circumstances of this case.

[33]     It is our assessment that the events at the commencement of the trial were of a kind which it was not possible to manage, so as to avoid the very real risk of a miscarriage of justice.  Not only did the Crown opening contain information which was illegitimately prejudicial in relation to counts 8 and 9, but Mr Wade’s refusal to give evidence and his brief explanation of the reasons, must have had a significant impact.  We do not consider that, thereafter, the situation was retrievable.  The only safe course, following the appellant’s discharge in relation to counts 1 to 7, was to discontinue the trial.

Result

[34]     For these reasons the appeal against conviction is allowed and a retrial is ordered.  It is not necessary, therefore, to consider the sentence appeal.

Solicitors:

Wollerman Cooke & McClure, Carterton for Appellant
Crown Law Office, Wellington