R v Harper

[2007] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

CA387/07 [2007] NZCA 438

THE QUEEN

v

DENIS JOHN HARPER

Hearing:         20 September 2007

Court:            Ellen France, John Hansen and Wild JJ Counsel:        W C Pyke for Appellant

D R La Hood and C A Patterson for Crown

Judgment:      12 October 2007         at 11.30 am

JUDGMENT OF THE COURT

The appeal, both as to conviction and sentence, is dismissed

REASONS OF THE COURT

(Given by Wild J)

R V HARPER CA CA387/07  12 October 2007

Introduction

[1]      Mr  Harper  appeals  his  conviction  and  sentence  following  trial  in  the District Court at Hamilton on two charges of damaging fibre-optic cabling with intent to obtain a benefit on 9 and 10 May 2006.  He was sentenced to nine months imprisonment and ordered to pay reparation of $5,000.   Judge O’Driscoll granted Mr Harper leave to apply for home detention and deferred the commencement of his prison sentence.

[2]      The submission on the conviction appeal is that the jury, properly following Judge O’Driscoll’s directions, could not reasonably have inferred guilt on the circumstantial evidence which comprised the Crown case.

[3]      Although Mr Pyke did not formally abandon the sentence appeal, he felt unable to argue that the sentence was wrong or manifestly excessive.

Factual background

[4]      Fibre-optic and copper cables in different parts of the Te Rapa shunting yards were cut on 6, 9 and 10 May.  On the last of those dates a rope was found around some of the cables.  It appeared considerable force had been used to try and pull the cables from their trench.  The Crown case was that whoever did this was trying to steal the cables for their scrap metal value.

[5]      Mr Harper owned a distinctive white Nissan Primera registration CCG753. Various  witnesses  saw  this  vehicle  in  the  Te  Rapa  yards  on  9  and  10  May. Mr Harper was not identified as the driver.

[6]      On the night of 10/11 May a lookout was kept at the yards, in case the culprits returned.  At about 1.30 am on 11 May Mr Harper’s vehicle came into the yards.   There were two people in the vehicle.   They got out and the passenger attempted to take the concrete lid off a cabling trench while the driver stood by watching.  Both men appeared to walk normally.  They left in the vehicle without doing any damage.

[7]      At 3 am, one and a half hours after his vehicle was seen in the Te Rapa yards, Mr Harper was stopped in his vehicle in a Hamilton street.  He was alone.  He said no one else had driven his vehicle that night.  He said he had been into the Te Rapa yards earlier that evening, looking for a mate called “Bruce”.   He maintained that was the only time he had ever been there.  He then said he had been there on another occasion, but about six months earlier.  When pressed further he said he did not want to say anything else and added “It’s not me you’re after”.

[8]      Mr Harper’s vehicle was then searched.   A handsaw, side cutters, pocket knife and sledgehammer were found in the vehicle.  The handsaw was on the front seat beside Mr Harper.   There was also an invoice that appeared to be for scrap metal, but had insufficient detail to be of much evidential value.   Tied around the towing eye at the rear of Mr Harper’s vehicle there was a piece of rope.  Although it was not forensically analysed, it appeared to match the rope found on 10 May tied around the cables in the Te Rapa yards.

[9]      The  defence  called  evidence,  in  particular  from  Mr  Harper’s  doctor. Dr Falconer  described  Mr  Harper  as  a  “partial  paraplegic”.    He  said  it  would overstate the position to say that Mr Harper could walk, because he was “pretty much confined to his wheelchair except he is able to shuffle with two sticks for short distances”.

[10]     Neither of the witnesses who saw the two men leave Mr Harper’s vehicle and walk over to the trench on the night of 11 May described either man as walking other than normally.

Conviction

[11]     Mr Pyke ultimately put the appeal on a narrow basis.  He contended that the Judge had put the Crown case to the jury on the basis they could convict only if satisfied that Mr Harper had himself cut the cables or had helped the person(s) who cut them.   He focused on this part of the Judge’s summing up at 21 (HC DUN CRI 2006-019-006907 23 May 2007):

It is not sufficient for the Crown to prove on any particular occasion that the accused’s vehicle was present.  To find him guilty you must be satisfied that the accused was present and either acted as a principal in cutting the wires, or that he aided and assisted in the damage to the cables as a party.  You are not entitled to speculate or guess.  You must deal with the case on the basis of the evidence.

[12]     Accordingly, Mr Pyke submitted that the jury could not find Mr Harper guilty by virtue of his car’s presence in the railyards, or even based on an inference of his presence.  The jury had to find that Mr Harper was actively involved, helping in the acts of damage.  Assistance only by provision of a car was not enough, as that was not the Crown case and not how the case was left to the jury.

[13]     Mr La Hood responded that this misunderstood the Crown case, which was that Mr Harper’s role in this offending comprised:

(a)      His  driving  the  principal  offender(s)  who  cut  the  cables  to  the Te Rapa  yards in his vehicle, and  then  driving them  away again; and/or

(b)Using his vehicle to try to pull the cables out of their trench with the rope found tied partly around some of the cables in the Te Rapa yards, and partly on the towing eye of his vehicle.

[14]     The Crown did not suggest that Mr Harper was the person who actually cut the cables or lifted the concrete lids covering the cable trenches, to give access to the cables beneath.

[15]     Mr La Hood’s position was that the Judge had put the Crown case accurately and fully in his summing up to the jury.  Mr La Hood referred particularly to this section of the Judge’s summing up at 11-12:

The law requires the person who is a party to have some active involvement in the offending.  Mere presence as a bystander is not enough.  A person who is a party need not know of the precise details of how a crime is to be carried out.  He must know at least the essential facts of what is going to happen. An accused must also intend that what he does should assist the person who commits the crime.  An accused would not be guilty if he accidentally, or inadvertently, helped someone else commit a crime.   The accused will be guilty if the Crown proves beyond reasonable doubt that Mr Harper either

caused the damage himself to the wires, or that he was a party in that he helped someone else cause the damage.

You have heard evidence that on a number of occasions there were two persons present, or who were in the car which witnesses have said belonged to the accused, or a car similar to his.

If you are satisfied beyond reasonable doubt that the accused was the person who cut the wires on those dates, and the other elements of the charge have been proved beyond reasonable doubt, then you would find the accused guilty.  The Crown case is that if he did not cut the wires himself then he was a party and that he aided or helped the principal offender, or the person who actually did cut the wires.

The Crown says to you that that could have occurred in one of two ways. The first is that he drove the principal offender to the marshalling yards in his car.  Or that he assisted by driving the car with the rope tied around his car and the other end of the rope tied around the wires in an endeavour to extract the wires from the trench.

The defence case to you is that there is insufficient evidence, no evidence in fact that the accused cut the wires himself and insufficient evidence that he was present at the yards, that he drove another person to the yards, that he drove the vehicle with the rope, or that he helped and assisted anyone else to cut the wires.

The Crown case to you has been presented on the basis that the accused was present in the car, in effect on those three dates mentioned in the indictment. If you were to find that the accused’s car was involved but the accused was not present in the car on those dates in the indictment then you would find him not guilty because the Crown’s case is that on each of those dates he was there and was present and was the driver and aided or assisted in cutting the wire, if not then he cut the wire himself.

(Mr La Hood’s emphasis.)

[16]     A  full  reading  of  the  Judge’s  summing  up,  particularly  the  passage  just quoted, leaves us in no doubt that the Judge put the Crown case fully and fairly to the jury in the way outlined by Mr La Hood.  It then became a matter for the jury. Mr  Pyke  responsibly  accepted  there  was  strong  circumstantial  evidence  that Mr Harper was at the Te Rapa yards on 9 and 10 May in his vehicle.  We note the jury found Mr Harper not guilty on count one, which charged him in relation to the

6 May 2006 incident.

[17]     There is no merit in Mr Harper’s appeal against his conviction on counts two and three.

Sentence

[18]     There is no merit in the sentence appeal either.  Mr Harper’s circumstances ruled out a fine:  he was receiving an invalid’s benefit, and owed $2,000 in fines. The pre-sentence report considered him unsuitable for community work and reported that supervision was not warranted.   The sentencing options thus reduced to reparation and imprisonment.  A sentence of nine months imprisonment can only be viewed as merciful indeed.  We say that because the cost of repairing the damage to the cables was estimated at around $40,000, and the cables were part of the railways’ signalling system.   Cutting them potentially endangered human life.   In ordering Mr Harper to pay $5,000 reparation, the Judge remitted his $2,000 outstanding fines.

[19]     We dismiss the appeals both against conviction and against sentence.

Solicitors:

Crown Law Office, Wellington