R v Genovese CA151/02
[2005] NZCA 369
•20 September 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA151/02
CA152/02
THE QUEEN
v
RICARDO GENOVESE
Hearing: 15 and 18 August 2005
Court: William Young, Robertson and Gendall JJ Counsel: N J Sainsbury and M W Snape for Appellant
A Markham for Crown
Judgment: 20 September 2005
JUDGMENT OF THE COURT RECALLING JUDGMENT OF
8 SEPTEMBER 2005
The judgment delivered on 8 September 2005 is recalled and replaced with a judgment released on 20 September 2005.
REASONS
(Given by William Young J)
[1] In the judgment of this Court delivered on 8 September 2005, we did not address specifically the sentence appeal by Mr Genovese. The presiding Judge
R V GENOVESE CA CA151/02 20 September 2005
subsequently conferred by telephone with counsel. Mr Sainsbury made it clear that the sentence appeal was only to prosecuted if some of the convictions were set-aside. As that was not the outcome of the case, the sentence appeal can be dismissed.
[2] There are various ways that this result can be recorded but perhaps the most simple is to recall the earlier judgment which we do and re-deliver it in revised form which we also do.
Solicitors:
Crown Law Office, Wellington
JUDGMENT AS REISSUED PURSUANT TO RECALL DECISION OF
20 SEPTEMBER 2005
ORDER SUPPRESSING PUBLICATION OF NAMES OF WITNESSES DN AND KH PENDING FURTHER ORDER
IN THE COURT OF APPEAL OF NEW ZEALAND
CA151/02
CA152/02
THE QUEEN
v
RICARDO GENOVESE
Hearing: 15 and 18 August 2005
Court: William Young, Robertson and Gendall JJ Counsel: N J Sainsbury and M W Snape for Appellant
A Markham for Crown
Judgment: 20 September 2005
JUDGMENT OF THE COURT
A Appeals against conviction and sentence are dismissed.
B Order suppressing publication of names of witnesses DN and KH
pending further order.
REASONS
(Given by Gendall J)
[1] Ricardo Genovese was convicted after trial before a Judge and jury in the Auckland High Court on three charges of aggravated robbery, two of theft of motorcycles and three of unlawful possession of firearms. He was sentenced on
24 September 1999 to an effective term of 16 years nine months’ imprisonment. He appeals against conviction and sentence but on a basis which primarily focuses on his convictions on the three counts of aggravated robbery.
[2] On his behalf it is contended that a miscarriage of justice occurred and he did not receive a fair trial. First, because he was left to represent himself without counsel for the last two weeks of a three week trial. Secondly, his counsel seriously erred in not applying for, and pursuing, an application for severance of the counts of aggravated robbery so as to result in a serious prejudice to the appellant. Thirdly, he was deprived by the Judge of disclosure of certain security videotapes, which denied him the opportunity of investigating matters which he says are essential to his defence.
Factual background
[3] The appellant was charged with the aggravated robberies of an Armourguard van in Bombay, Auckland on 27 January 1998 in which $19,000 was stolen; an ASB Bank in Waiuku on 13 February 1998 when $3,604 was obtained; and of the Auckland Art Gallery on 9 August 1998 when a painting (valued at $2 million) was stolen and for which a ransom of US$250,000 was later demanded. The theft charges relate to motorcycles the Crown allege the appellant stole. The Arms Act charges related to weapons which were found in his home during the execution of a search warrant.
[4] The Crown case was that over a significant period three carefully planned armed robberies occurred in the Auckland region, with, as it emerged, similar features. On each occasion a disguised offender was in possession of a shotgun and used a large Japanese motorcycle with false number plates as the “getaway” vehicle. The sole issue at trial was one of identity. The Crown called a large amount of circumstantial evidence which cumulatively pointed to the appellant as being the offender. An execution of a search warrant on his home eight days after the
Art Gallery robbery disclosed three firearms, including two pump-action shotguns, bolt cutters similar to those used in the ASB Bank robbery, pistol grips, a typewriter, camouflage jacket, false number plates, and other items which linked to a number of LTSA enquiries and applications for licence plates. The appellant endeavoured to escape from the address on a motorcycle carrying a bag containing, amongst other things, a police scanner, and false identification documents. That motorcycle was stolen. Inside the home a second motorcycle was located. Evidence indicated that the appellant used a number of aliases to make enquiries with the LTSA to obtain registration details in respect of motorcycles similar to those that he had stolen, and he had then created or stole licence plates which he used on them.
[5] In the immediate aftermath of the Armourguard robbery the offender rode off on a motorcycle. Witness descriptions of the motorcycle were consistent with it being one of the motorcycles later located at the address of the appellant. On the motorcycle used by the offender was a number plate which corresponded to a fake number plate later found in the appellant’s wardrobe. A request to the LTSA for details associated with that number plate had been made under a name which was used by the appellant as an alias. There were other matters of circumstantial evidence which the Crown relied upon, including evidence that on the morning of the Armourguard robbery the appellant telephoned his employer DN to ask whether he had seen a helicopter in the area. The police helicopter was at that time flying overhead. In addition, the appellant spent a total of $14,000 in a few days following the robbery.
[6] Similarly, in respect of the robbery of the ASB Bank Waiuku, a description of the motorcycle used was similar to that found at the appellant’s home. The identifying licence plate then carried by that motorcycle was recorded as being one stolen from a carpark at a steel mill at which the appellant worked. The day following the robbery the appellant spent $1,600 in cash in purchasing various items.
[7] Found at the appellant’s home were items such as bolt cutters, the Polaroid camera (said to be used to photograph the stolen painting), handwritten notes referring to the Art Gallery and making calculations in US dollars, black paint of the same type found to have been used to paint the crowbar that was left at the
Art Gallery after jemmying the painting from the frame, a cartridge which was ejected from the gun in the Art Gallery being forensically matched to the shotgun found in the appellant’s wardrobe, a false licence plate bearing the number on the motorcycle which departed from the Art Gallery, being found folded inside the appellant’s jeans in his bedroom, evidence of communications by the appellant to LTSA, together with the painting itself.
[8] The Crown’s case was presented on the basis that the same person committed each robbery. In the end the circumstantial evidence surrounding the items found at the appellant’s property was extraordinarily powerful. It involved three firearms; a rare motorcycle admittedly stolen from Hamilton in 1996 and described as being used in the first two robberies; the attempt by the appellant to escape on a further motorcycle carrying a bag containing a police scanner; false identification documents; the evidence involving the appellant using aliases to make enquiries with the LTSA to obtain registration details of motorcycles similar to the two that he had stolen; creating false plates for the motorcycles which matched generally the description of the motorcycles and its licence plate when departing from robberies.
[9] It was accepted at trial by the appellant that he stole one of the motorcycles and claimed to have received the other one, knowing it to have been stolen. But he denied involvement in the robberies. His defence was that a man he knew by the name of “Jaffa” was responsible for the Art Gallery robbery, he having stolen a motorcycle and that all the incriminating items found at the address belonged to him as he also lived there. The appellant gave evidence generally to that effect. He also denied any knowledge of the Armourguard or ASB Bank robberies and called some evidence loosely said to be “alibi” but in fact not being capable of that description. His defence in respect of the crimes was that the Crown had failed to establish the identity of the offender(s) and that it was the same man, namely the appellant.
Trial process
[10] The trial commenced on Monday 26 July 1999 in the High Court at Auckland. The appellant was represented by an Auckland barrister, Mr Bioletti. The Crown spent that day in opening, concluding its opening address on the morning
of Tuesday 27 July 1999. Evidence then commenced and about 30 Crown witnesses were called over that week. Over the weekend the appellant wrote a letter dated
1 August 1999 to the trial Judge. She received it on Monday 2 August. In that letter the appellant made a number of complaints generally about his counsel failing to properly cross-examine two Crown witnesses, Messrs DN and KH. There were other complaints about Crown counsel but essentially the appellant was contending that he had been “severely compromised in my defence” and he sought to recall the two Crown witnesses for further examination. He went on to say:
I wish to impress upon your Honour that, due to this shortcoming I will have no other option, but to dismiss Mr Bioletti, and to continue in my own defence, if I cannot have access to a full and adequate examination of these witnesses.
The appellant went on to contend that Mr Bioletti failed to issue an Alibi Notice which would “compromise” the appellant’s credibility when he came to give evidence.
[11] The Judge took the unusual step of investigating the complaints against Mr Bioletti and, having done so, concluded that that counsel had acted professionally, competently, and responsibly throughout. She recorded in a Minute that Mr Bioletti had advised from the Bar that his instructions were that an Alibi Notice should not be given. Crown counsel indicated that even at such a late stage if Notice of Alibi was to be given it would not be opposed provided the Crown had the opportunity to check out the alibi.
[12] The Judge observed in her Minute that she had heard nothing which would suggest there had been a failure or oversight in respect of cross-examination of the witnesses which required the Crown to recall them but noted that the Court had an overriding discretion. She adjourned to enable counsel to confer with the appellant so as to determine whether the interests of justice required any application for recall to be heard. Subsequently that day Mr Bioletti sought leave to withdraw as counsel for the appellant. This was declined by the Judge saying that she was satisfied that counsel had conducted the defence in an appropriate and professional manner. It was signalled that the witnesses would be recalled but the trial had to proceed. Mr Bioletti’s application for leave to withdraw was declined.
[13] Following this Mr Bioletti was dismissed by the appellant as his counsel. The Judge arranged for alternative counsel to be provided by the Legal Services Agency and adjourned the trial for two days – that is, until Thursday 5 August 1999 but observed that she was not prepared to adjourn the trial for any significant length of time. A replacement counsel, Mr Edgar, was assigned. Naturally, he had a difficult task to accept the brief at short notice. He was instructed by the appellant that he wished to call up to 35 witnesses (said to be mostly police officers) and wanted the trial to last, he said, until the APEC Conference which was then about a month away. On 4 August 1999 Mr Edgar sought leave to withdraw, he said on the basis that he was unable to obtain adequate instructions and to be sufficiently prepared to act for the appellant. A file note taken by junior Crown counsel at the time records that the Judge was advised that the appellant was seeking to call a large number of witnesses and wished to prolong the trial for another month.
[14] The Judge granted leave for Mr Edgar to withdraw. The appellant then sought an adjournment or abandonment of the trial. The Judge refused advising the appellant:
You face the position now that two counsel whom the Court considers highly competent and highly cognisant of their obligations, have been obliged to seek leave to withdraw. There is no alternative therefore, Mr Genovese, that this trial should proceed with you representing yourself. There will be no adjournment.
[15] The trial Judge directed that the trial was to recommence the following day, Thursday 5 August 1999. No formal application for further adjournment was made and the trial recommenced with Mr Genovese representing himself. He was advised that if he provided the Crown before the end of the weekend with a list of witnesses, whether alibi or not, the Crown would co-operate to the extent that it would not take any formal objection to the lateness of notice if there were alibi witnesses.
[16] The appellant had written to the Judge the previous day in which he had said:
Mr Bioletti informed me that [DN] was on the pre-robbery video at the Art Gallery. This matter can be reviewed by my viewing or your Honour’s viewing of the video.
DN was a witness who had given evidence and was still to be recalled for further cross-examination by the appellant. It was said by the Crown that the police had viewed the Art Gallery security videotapes not only for the day of the aggravated robbery but on preceding days but that due to the fuzziness around the facial areas of persons visiting the Gallery and the particular camera angles, no person (including the appellant) could be identified on the tapes. The constable who viewed the tapes was to be called as a witness. The Judge said that whilst the duty of the Crown was to make disclosure of material evidence and information, nevertheless the Crown’s stance that it had no obligation to disclose these tapes was appropriate in those circumstances. The Judge observed that she found it very difficult to see that the tapes could be significantly material in the conduct of the trial and she upheld the stance of the Crown in declining to disclose the Auckland Art Gallery tapes. The trial then proceeded with the appellant cross-examining witnesses, generally with some skill and astuteness.
[17] The witnesses that he sought to have recalled were recalled and cross-examined.
[18] During the course of the trial as it proceeded thereafter the appellant wrote to the Judge on 12 August 1999 making certain claims that it had been reported to Mr Bioletti by a third party that two suspicious persons were seen in the Art Gallery prior to the robbery and had asked about the value of the painting. He said that it was said that one of those persons was DN. The appellant claimed that DN appeared in pre-robbery security videotapes taken at the Auckland Art Gallery. This letter was the second occasion on which the appellant made an assertion attributed to Mr Bioletti of the claim of DN’s presence on an earlier occasion at the Gallery. The Judge recorded that Mr Bioletti denied that he had said that to the appellant. Application to recall DN was made but the Judge declined stating that he had twice been in the witness box and on neither occasion had it been put to him by the defence (Mr Bioletti or later the appellant in person) that he was at any time at the Auckland Art Gallery prior to or in conjunction with the robbery of the painting.
[19] Mr Bioletti’s evidence was that he suspected that DN might be shown on the tapes and for this reason suggested to the appellant that it might be wise to check the
tapes but he maintained that he did not tell the appellant that DN was on the tapes or that anyone had told him that. We accept that evidence. Irrespective of that, the appellant asserted that DN being there was, or might have been, the case. He did not put that proposition to DN when recalled. Nor had it earlier been put in cross-examination by Mr Bioletti but, of course, the appellant’s instructions to Mr Bioletti was that a man who was sharing the appellant’s accommodation named “Jaffa” was responsible for the Art Gallery robbery. Generally the tenor of the evidence later given by the appellant at trial was that seriously incriminating items of evidence found at the appellant’s home were those of “Jaffa” and had (or must have) been put there by him.
[20] The security tapes are no longer available having been used again some time after the conclusion of the first appeal.
[21] The appellant unsuccessfully challenged his conviction in 1999 but given the way in which his appeal was disposed of he is entitled to have his appeal reheard.
[22] Affidavits have been filed by the appellant and also by Mr Bioletti and Mr Edgar. There are further affidavits filed on behalf of the appellant as to enquiries made by a licensed investigator regarding tapes of the Auckland Art Gallery and a forensic scientist as to his opinion on whether or not the original video footage surveillance could have been enhanced so as to provide better images. We also heard oral evidence from Mr Bioletti and Mr Genovese.
Representation of the appellant
[23] The appellant submits that he was denied a fair trial by the Judge refusing to grant an adjournment to enable the appellant to adequately instruct counsel or, more probably by refusing to stop the trial.
[24] The right to legal counsel is important and often crucial, but not an absolute. An accused may waive an entitlement to a lawyer by either his choice or his actions. This Court in R v Hill [2004] 2 NZLR 145 at [42] said:
[42] There is no dispute that every application for an adjournment is to be considered on its own facts. The mere fact that a refusal of an adjournment may result in the withdrawal of counsel leaving the accused unrepresented is not, by itself, a ground for an adjournment: R v West [1960] NZLR 555 (CA). The Court is entitled to have regard to whether an accused may be seeking to manipulate the system by uncooperative behaviour and may also have regard to the public interest in the prompt and efficient administration of justice.
[25] In this case the evidence of Mr Bioletti was that he believed the appellant in expressing his unhappiness about Mr Bioletti’s cross-examination of two witnesses and writing to the Judge, was “deliberating using me in order to engineer a situation where he could cause a mistrial”. Consequently, upon the appellant dismissing Mr Bioletti, it came as no surprise to him:
because three or four weeks prior to the trial he told me that he might decide to represent himself, and not to be concerned or to take it personally if he dismissed me.
We accept Mr Bioletti’s evidence.
[26] Much earlier, on 2 March 1999, the appellant had written to the police requesting return of his property not being used in evidence and said:
…It is simple. I will be conducting my own defence at trial if this matter is not addressed to my satisfaction and the properties returned promptly….p.s. This defence I estimate will through x-examination would cover 10-16 weeks duration.
[27] We accept that Mr Edgar would not have found it entirely easy to pick up the appellant’s defence mid-trial but any difficulties associated with this became irrelevant given the stance taken by appellant in instructing him to call multiple witnesses for no obvious purpose other than to prolong the trial for another four weeks. This made his representation of the appellant untenable and in turn left the Judge understandably with the view that the appellant was abusing and manipulating the system.
[28] Once Mr Edgar withdrew the Judge was left with the option of either aborting the trial, which presumably was the appellant’s aim, or adjourning again in order to enable further counsel to be instructed. It might have been prudent if the Judge had postponed the recommencement of the trial for another couple of days to the
following week. Anything beyond that would have been impractical given that the trial had been run for one week before the jury, and had already been postponed for several days. However, we are not persuaded that what occurred was not reasonable and denied the appellant a fair trial.
[29] The appellant’s dilemma arose from his own conduct and he was an accused fully aware of the disadvantages of conducting his own case. No doubt, as Mr Sainsbury submitted, if he had counsel he might have been represented more competently but if counsel had acted strictly in accordance with the instructions and requirements of the appellant, that is by no means certain.
[30] Having reviewed the appellant’s cross-examination of Crown witnesses we note that he was generally astute and alive to the issues. Mr Sainsbury submitted that the appellant was disadvantaged by not putting certain allegations to Crown witnesses, and then being taken to task about this when he himself gave evidence and by the Judge in her directions. Such an omission did not arise through a lack of awareness of this issue. Mr Genovese was fully aware of what he was doing because that is why he sought, and was granted, recall of the witnesses. Any omissions in cross-examination arose only because, as the appellant himself said in evidence, he did not put allegations to the witnesses as to what he was to later claim might have been their involvement because “he knew what their answer would be”. That is, he did not want to run the risk of outright denial of that which he was later to claim in evidence.
[31] The defence strategy was, as is apparent from the manner in which the trial proceeded and the eventual evidence of the appellant, that a man named “Jaffa” was responsible for the crimes. It might have been viewed by a jury to be somewhat intriguing if in cross-examination, or for that matter in his evidence, the appellant was suggesting that in fact it was someone else. Applying the test in R v Hill (supra) the actions of the accused were neither perfunctory nor inept. The trial Judge was entitled to have regard to the delay before a new trial could occur and the fact that the appellant’s actions were designed to thwart the progress of the trial which was well on the way.
“Incompetence” of counsel – failure to apply for severance
[32] The appellant’s counsel alleges that trial counsel was “incompetent” in failing to apply for severance of the counts in the indictment before trial. He also contended incompetence in failing to seek pre-trial disclosure of the Art Gallery security tapes.
[33] As to severance, Mr Bioletti sought exclusion of evidence of an earlier aggravated robbery of a bank in Kerikeri on which the appellant was convicted in
1992. In a reserved pre-trial judgment Randerson J ruled that the so-called “similar fact” evidence sought to be adduced by the Crown did not disclose any special characteristic system, pattern or underlying unity with the offending at least in the indictment and its probative force was outweighed by its undoubted prejudicial effect.
[34] Counsel for the appellant said that the three aggravated robbery counts in the indictment should have been the subject of a severance application to obtain separate trials because the evidence in respect of each aggravated robbery did not qualify as “similar fact” so as to be admissible in respect of the other. He argued that Randerson J came to that view in the course of his reserved judgment when His Honour said that the undoubtedly common features in the evidence relating to the three aggravated robberies in the indictment were insufficiently “similar” to qualify for admission on similar fact principles. However, His Honour was not called upon to decide the issue of severance as between the three robbery counts and his was an obiter view and made rather in passing in the context of comparing the counts in the indictment with the evidence as it related to the 1992 aggravated robbery.
[35] The law is clearly set out in R v Holtz [2003] 1 NZLR 667 (CA) where
Gault P in delivering the judgment of the Court said (at [35]):
One of the problems with evidence of past conduct, whether labelled evidence of bad character, propensity evidence or similar fact evidence, is the tendency to look for principles of admissibility applicable to all such evidence in all circumstances. At a very general level there is the broad principle that to be admissible the evidence must be such that its probative
value outweighs illegitimate prejudice to the accused in having adduced evidence of past conduct that might be given undue weight or used improperly in reasoning towards guilt of the crime charged. It is in the application of that general principle in the circumstances of particular cases that difficulties arise. Often this is because the approach adopted in one set of circumstances is taken as the rule to be applied in a quite different case. Because of the wide variation in circumstances in which the issue calls for consideration, the preferable approach in a particular case is that which determines and weighs probative value and potential prejudice in the circumstances. It is necessary to consider the nature of the evidence, what it is sought to prove, what other evidence there is and its relationship and whether the evidence relates to prior proved offending or to concurrent charges, all against the underlying dangers inherent in propensity or bad character evidence.
Striking similarity in two incidents may be something that gives the particular evidence special probative force. Instead of one, there may be several previous incidents each separately having little distinctiveness but when taken together compelling the exclusion of coincidence.
[36] We are satisfied that there were common features or characteristics linking in a sequential way the evidence relating to the three counts of aggravated robbery. The evidence pointed to one motorcycle being used in two of the robberies with both that motorcycle and the motorcycle used in the other robbery being located in the possession or at the house of the appellant. There was the evidence of the use of false licence plates skilfully created with records manipulated so as to provide false lines of enquiry if detected and evidence of communications with the LTSA and evidence of such documentation at the appellant’s home all comprise common features. If Mr Bioletti had applied for severance of counts in the indictment we have no doubt that that would have been declined. Once this had been in issue, the directions the Judge would have given to the jury would have encompassed the manner in which the similar fact evidence could be used in relation to all of the counts. As it happened the Judge’s directions to the jury assisted the appellant because they comprised the standard direction that they were required to consider each charge separately and that it would be wrong to decide one and then conclude that the others were established. The Judge emphasised that each count required independent assessment and consideration of the essential ingredients. The Crown did not, it appears, seek to rely upon the admission of some items of evidence,
otherwise unrelated to a particular count, to assist in proof of guilt on that count through the “similar fact” proposition.
[37] We add for completeness that Mr Bioletti’s evidence was that it was considered by both himself and the appellant that it was in the appellant’s interests for there not to be severance because inconsistencies in the eye witness identification evidence in respect of each of the counts was thought to be able to be used in favour of the defence. Mr Bioletti was not incompetent in not applying for severance and this ground of complaint is without merit.
Incompetence: failure to “investigate” alibi witnesses
[38] Although counsel for the appellant did not in his submissions advance this aspect as a criticism of counsel’s handling of the case, the appellant himself complained in evidence that Mr Bioletti was negligent or incompetent, and ignored his instructions in failing to follow up, interview or call alibi evidence. There was also some cross-examination of Mr Bioletti on this issue in this Court.
[39] There is no substance to the complaint. Mr Bioletti obtained instructions from his client as to possible alibi witnesses. We accept that he investigated those that were provided to him as best he could. For example, the claim to alibi evidence connected with the return of a lawnmower, which was claimed to be an alibi by Mr Genovese for the Art Gallery robbery, yet was found to have occurred on a different weekend. Mr Bioletti’s view was that his client did not have an alibi for the Art Gallery and he was advised of none by the appellant in any firm or precise way. An Alibi Notice would not be required to be served because the specific alibi was not able to be put forward by the appellant.
[40] In giving evidence before us the appellant was anxious to make it clear that he insisted and instructed Mr Bioletti to call a large number of witnesses who he said would give “alibi evidence”. We do not accept that those instructions were given. The appellant himself said in evidence he did not accurately recall what his alibi may have been – yet wanted it explored. If the persons mentioned were not in truth alibi witnesses then the calling of them would have been of no avail to the appellant.
Criticisms directed at counsel by the appellant and in cross-examination by the appellant’s counsel (although not in submissions) were not warranted.
Failure to view, and obtain disclosure of security tapes
[41] Mr Sainsbury argued that Mr Bioletti was incompetent in not insisting on disclosure of, and viewing pre-trial, the Art Gallery security tapes for days preceding the robbery.
[42] We think that counsel should have endeavoured to obtain access to the security tapes before trial started and also that it would have been prudent for the Judge to have given the appellant access to them pre-trial. But the issue is whether any risk of a miscarriage of justice arises because of failures of those events and if so, then the appeal should be allowed.
[43] The circumstantial case against the appellant was overwhelming to the extent that it was inconceivable that he was not involved. Trial strategy of counsel was that the Crown evidence as to the identity of the offender at the Art Gallery as shown on the security camera tape (that is, the actual robber) was inconsistent with being the appellant. His instructions from the appellant were, however, that the actual robber was “Jaffa”.
[44] The claim by the appellant that DN was on the pre-robbery security tapes carries some puzzling connotations. Mr Bioletti could not have told the appellant that DN was depicted because he could not have known that for certain notwithstanding his suspicions. The appellant nonetheless chose to assert affirmatively that DN was shown on the pre-robbery tapes in a context suggesting complicity in the robbery. If DN was so depicted, the appellant could have known that only because of his own involvement in the robbery. There was no suggestion at trial that “Jaffa” (assuming he existed) knew DN. So if DN had in truth been checking out the Art Gallery prior to the robbery that would have been used by the Crown as another plank in the circumstantial case against the appellant; this given his friendship and association with DN and the absence of any evidence of a relationship between DN and “Jaffa”. All in all, it is not surprising that neither
Mr Bioletti nor the appellant suggested in cross-examining DN that he had been at the Art Gallery.
[45] In the end the appellant was in a position to challenge DN at trial on the point which if DN had denied being present then the Judge would have had no choice but to compel production of the tapes. But even if the case had proceeded down that line this would not have benefited the appellant because it was not consistent with the defence that he was propounding, namely that “Jaffa” was the robber.
[46] The view that counsel error had to be “radical” before a guilty verdict could be set aside did not properly reflect what this Court said in R v Pointon [1985]
1 NZLR 109 (CA) and R v Horsfall [1981] 1 NZLR 116 (CA) because the ultimate issue in terms of s385 Crimes Act 1961 is whether a miscarriage of justice may have arisen, or may have occurred, howsoever that came about. This has been reconfirmed by the Supreme Court in Sungsuwan v The Queen [2005] NZSC 57 with the focus being on outcome. Where counsel’s conduct was reasonable the client would not generally succeed in asserting miscarriage of justice so as to obtain a new trial but there would be rare cases where conduct of counsel although reasonable, nevertheless could be shown to have given rise to an irregularity which prejudiced an accused’s chance of acquittal or conviction on a lesser offence to the extent that an appeal court is satisfied there was a miscarriage of justice. Further discussion is not required other than to refer to the passage of Gault J delivering the reasons of himself, Keith and Blanchard JJ at [70]:
In summary, 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 at the time, that conduct may have met the objectively reasonable standard of competence.
[47] The short point is that if the risk of a miscarriage of justice exists then howsoever that came about, whether through error by way of miscalculation or complete incompetence, (radical or gross) does not really matter. In this case
counsel has argued that trial counsel was “incompetent”. We reject that submission. We are satisfied that he did all he could in investigating any possible alibi. In respect of his alleged failure to pursue disclosure and inspection of the Auckland Art Gallery’s security tapes we have concluded that it would have been thorough, prudent and wise to do this but such oversight or omission could not have had any significant prejudicial effect to the appellant on the outcome of the trial. Counsel’s argument that inspection might have thrown up something that may have assisted the appellant is conjecture because, on the other side of the coin, the instructions by the appellant to his then counsel were based upon a defence that “Jaffa” was the offender.
[48] In any event the evidence was that images on the videotapes were so blurry or distorted as to be of no assistance and strong support for that view is to be gained from observing the still photographs of the actions at the time of the robbery which we have seen. It is purely speculative that non-viewing of security tapes led to any prejudice to the appellant and the submission that they were “vital” to the appellant’s defence is an overstatement. Mr Bioletti had been instructed by the appellant that the defence was that he had nothing to do with the Art Gallery robbery and that the culprit was “Jaffa”. Now it is asserted that the witness DN may have been a culprit or implicated and that that may have been ascertainable by Mr Bioletti or anyone enhancing the tapes if in fact DN was on them. It does not elevate either non- application to view the security tapes to the category of being such an error as to lead to any miscarriage of justice, or risk of such miscarriage.
Trial Judge error
[49] It may have been prudent for the trial Judge to order production of the tapes to the appellant. The request was mid-trial, which had been adjourned several days, and this may well have had to result in a further adjournment for perhaps some days, given the length of the tapes. Jury inconvenience loomed as a feature. But arrangements for viewing could have been made, even if with some difficulty in evening sessions and over the weekend. The right for disclosure of material matters, whilst not absolute, is important. If there is any dispute as to the relevance or
materiality of disclosure items then it is for the trial Judge to determine the relevance, and not the prosecution or police.
[50] There is no evidence before this Court to establish that it is probable that the tapes would or might have been of any real assistance to the defence. They were not relied upon by the Crown as evidence to inculpate the appellant. However, that is not the test. Despite difficulties, which would have existed at the feet of the defence, in the absence of the Judge being able to view the tapes, disclosure was required, and the trial adjourned for a further three to four days, at least over the weekend, so it could recommence on Monday 10 August 1999. In that way the appellant would have had the opportunity of viewing the tapes. But just as we found it would have been wise for counsel to have sought disclosure of the tapes before trial, given the way matters developed and the fact that it was said that the tapes were not capable of identifying anyone, we cannot see that such omission could be classified as a mistake compromising a fair trial of the appellant.
[51] The argument that if they had been disclosed they may have shown someone who may have been DN is no more than speculation and kite flying. The question remains: how would that have helped the defence? The defence instructed to be run by the appellant, and as given by him in evidence, was that the Auckland Art Gallery robber was the man “Jaffa”, yet disclosure of the tapes was pursued mid-trial on the basis that DN was involved.
[52] The tapes no longer exist. Any failure to preserve them was not the fault of the prosecution. In terms of the “lost evidence” or “unavailable evidence”, despite the deficiency in not disclosing the fuzzy tapes, it is entirely a matter for speculation whether the defence might have gained assistance if they had been examined or retained.
[53] As the Court said in R v Harmer (CA324,02, 352/02 26 June 2003) at [87]
and [91]:
[87] It is not of course the position that a criminal trial cannot proceed or must be regarded as unfair to the defence or in breach of the right guaranteed under s 24(d) merely because certain material or testimony which might
possibly have contradicted the Crown case is unobtainable or is no longer available or has been contaminated….
[91] In our view, there are two relevant considerations, namely whether the evidence has been lost because of acts or omissions by the police involving bad faith, and whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case. 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.
[54] And further at [93]:
[93] Although this might appear to be a substantial list of deficiencies, in all instances it is entirely a matter of speculation whether the defence might actually have gained assistance if the item in question had been examined or retained or if things had otherwise been done differently. It is just as likely, indeed on the balance of the evidence as a whole, to which we will refer later, it would seem more likely that availability of the items or additional testing would actually have assisted the Crown or would not have advantaged the defence.
Conclusions
[55] Standing back and viewing all matters complained of individually and cumulatively, we have no reservations about the appellant having received a fair trial. There were difficulties, some of which were the appellant’s making. He may have been better served if he had counsel throughout. However, he displayed an astuteness to cross-examination and also, as all the evidence establishes, a determination that the trial would be run as he required and dictated and not as his counsel might advise. Mr Bioletti made it clear that he informed the appellant that it would be unwise to give evidence but the appellant chose to ignore that advice. He cannot complain that he did not have counsel to protect him from making mistakes and a poor impression whilst in the witness box.
[56] We are not persuaded there was any possibility at all of a miscarriage of justice having occurred as a result of the refusal of the adjournment so that the appellant was required to represent himself. On the basis of Mr Bioletti’s evidence, which we accept, that possibility had been anticipated and expected if not engineered by the appellant from a very early stage. We are not disposed to question the
Judge’s determination that the appellant was seeking to manipulate the system so as to derail the trial.
[57] Equally we are satisfied that the refusal to require disclosure of the security tapes (whether by counsel or mid-trial by the Judge) did not result in unfairness to the appellant, at trial or otherwise, so as to give rise to any risk of injustice.
[58] Verdicts of guilty were fully consistent with, and justified by, all the evidence. We are satisfied that there was no miscarriage of justice so the appeal must be dismissed in its entirety.
Appeal against sentence
[59] The appellant also appealed against sentence; but this appeal was only relevant if one or more of the convictions was set-aside. That not being the case, the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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