R v Johnson CA17/00

[2005] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/00

THE QUEEN

v

IAN DOUGLAS JOHNSON

Hearing:         16 March 2005

Court:             Chambers, Randerson and Salmon JJ Counsel:  P J Kaye for Appellant

A J F Perkins and D J Colbert for Crown Judgment:    3 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Table of Contents

Para No

Appeal from a murder conviction  [1]

Issues on the appeal  [3]

Trial counsel incompetence

R V JOHNSON CA CA17/00 [3 May 2005]

The emergence of trial counsel incompetence as the

main ground of appeal  [5]
The history of this appeal up to 14 July 2004  [10]
The Crown case at trial  [21]
The defence run at trial  [26]
Evidence on the appeal  [28]
Mr Johnson’s principal complaint  [32]
Detective Richard Harris  [47]
Trevor Rarere  [52]
Failure to call other witnesses  [56]
Failure to advise on the effect of consenting to

some Crown briefs of evidence being read  [60] Failure to cross-examine three Crown witnesses  [66] Conclusion  [77]

Unreasonable verdict  [78]

Appeal from a murder conviction

[1]    On 13 December 1999 Ian Johnson was found guilty on a charge of murdering Stavros Stavrianos on 15 January that year. Robertson J, the trial judge, sentenced him to life imprisonment.

[2]Mr Johnson has now appealed against his conviction.

Issues on the appeal

[3]By the time of the hearing, there were two issues to be determined:

(a)was there a miscarriage of justice as a result of Mr Johnson’s trial counsel’s incompetence?

(b)was the jury’s verdict unreasonable or unsupportable having regard to the evidence?

[4]    Neither had been raised as a ground of appeal in the notice of appeal. The grounds specified in that notice were all abandoned. Some other grounds advanced in the written submissions of Mr Kaye, for Mr Johnson, were not in the end pursued.

Trial counsel incompetence

The emergence of trial counsel incompetence as the main ground of appeal

[5]    Trial counsel incompetence arose clearly as an issue on this appeal for the first time on 14 July last year, more than four and a half  years after the trial.   On   14 July last year, Mr Kaye wrote to the registrar of this court seeking an adjournment of a hearing scheduled for 29 July 2004. Mr Kaye said in his letter:

As discussed, literally today it has become apparent that the basis and scope of Mr Johnson’s appeal has altered substantially from that originally envisaged by Counsel. In particular Mr Johnson now wishes to progress an appeal on the basis of competence of Counsel and matters other than the summing up of the learned Judge.

[6]    Mr Kaye went on to say that, in addition, “there was also the possibility that fresh evidence could be available”. A “fresh evidence” ground of appeal was never subsequently advanced.

[7]Mr Kaye concluded:

Both of these aspects have resulted in Counsel’s view now that the matter will not be ready for hearing by 29 July 2004, and draft submissions prepared to date are no longer able to be submitted.

[8]    It is significant, in  our  view,  that  Mr  Kaye  did  not  become  aware  of  Mr Johnson’s allegations relating to his trial counsel’s competence until 14 July last year. Clearly, Mr Kaye’s instructions up to that date had been based on alleged deficiencies in the trial judge’s summing up. The extreme delay in the surfacing of these allegations of trial counsel incompetence is of significant moment in the overall assessment of Mr Johnson’s credibility. We shall come shortly to the allegations which Mr Johnson now makes against his trial counsel. Those  allegations are strenuously refuted by Mr Johnson’s trial counsel, Steven Cullen.

[9]    The late emergence of the incompetence allegations is even more significant when one considers the history of this appeal. We refer to the salient points of that history, as they emerge from this court’s records.

The history of this appeal up to 14 July 2004

[10]   On 20 January 2000 Mr Johnson filed in this court a notice of appeal. He himself prepared that notice of appeal. He told us, when he was being cross-examined at the hearing before us, that another inmate, Arthur Taylor, had helped him prepare the grounds of appeal. Mr Taylor is well known for providing this kind of assistance to prisoners: he might colloquially be known as something of a “bush lawyer” and has developed over the years a good layman’s knowledge of the criminal law and criminal procedure. The original notice of appeal set out some five points where it was alleged the trial judge had misdirected the jury. Significantly, there was no allegation at that time that trial counsel had been incompetent. Indeed, in the notice of appeal, Mr Johnson asked that Mr Cullen be appointed as his counsel for the appeal.

[11]   At the same time, Mr Johnson prepared (in handwriting) a three page document setting out why he required “experienced counsel assigned to prepare/present his appeal”. Once again, there was no suggestion in that document that Mr Cullen had been incompetent at the trial. Rather, the essence of the application was that Mr Johnson had been “convicted of murder on … the flimsiest of evidence”. We mention at this point some other aspects of that legal aid application because of their bearing on some allegations Mr Johnson was to make in the evidence he gave before us. Mr Johnson said in his legal aid application:

At its highest, it is submitted the evidence of Mr Rarere would convict the Appellant of accessory after the fact. There is nothing in it that would support a conviction for murder.

All of the other evidence is more consistent, or just as consistent, with accessory after the fact as murder. …

It should have been made clear to the jury [by Robertson J], that assistance, such as disposing of a body after a crime had [been] committed, in the absence of anything else, could not constitute sufficient “involvement” so as to make the Appellant guilty of murder, but an entirely different offence, namely accessory after the fact.

[12]   Mr Johnson’s application for legal aid was refused by the registrar of this court.

[13]   On 30 March 2000 this court dismissed Mr Johnson’s appeal on the ex parte basis then in practice.

[14]   Mr Johnson then joined with Mr Taito and others in a set of appeals to the Privy Council, challenging the way in which the criminal legal aid regime had traditionally been operated in this court. Mr Johnson was represented on the appeal by two experienced New Zealand criminal lawyers, Barry Hart and Nigel Cooke. The Privy Council  delivered  its  decision  on  those  appeals  on  19  March  2002: R v Taito [2003] 3 NZLR 577.

[15] The Privy Council allowed all the appeals. It directed that the appeals should be remitted to the Court of Appeal for hearing: at [25].

[16]   Mr Cooke was then assigned as legal aid counsel for the rehearing of the appeal. It would seem from this court’s file that a fixture was not immediately  sought because Mr Johnson wanted some further enquiries to be made. It is not clear on the evidence whether the extra work to be done involved scientific testing of a pair of Mr Johnson’s shoes or whether it involved “an investigator”. For current purposes, it does not matter. What is significant is that there was no suggestion at this stage that Mr Johnson had made any complaint about Mr Cullen’s service.

[17]   On 8 May 2003, the registrar of this court allocated a date for the rehearing of Mr Johnson’s appeal. That date was 17 November 2003.

[18]   On 14 October 2003, Mr Johnson wrote to the registrar of this court, advising that he had that day dismissed Mr Cooke as his counsel. In his letter, Mr Johnson made various  complaints  about  Mr  Cooke.  In  particular,  he  complained  that  Mr Cooke had failed to arrange for independent testing of his shoes. He also made other complaints about Mr Cooke. What they were is not currently relevant. The significance of this eight page letter lies in the fact that there was no suggestion that Mr Johnson was complaining about trial counsel incompetence.

[19]   On 22 October 2003 the Legal Services Agency appointed Jonathan Wiles as counsel in Mr Cooke’s place. Mr Wiles immediately advised this court that he was

not available on the allocated fixture date.   Accordingly, a new fixture date was allocated: 24 February 2004.

[20]   On 2 February 2004 Mr Wiles sought an adjournment. Mr Wiles was unable to continue acting as he had recently been appointed to the new Public Defenders’ Service. The adjournment was granted on 3 February 2004. A day later, the Legal Services Agency appointed Mr Kaye as counsel in place of Mr Wiles. A new fixture date was then scheduled for 29 July 2004. It was then on 14 July 2004 that Mr Kaye learnt that Mr Johnson now wished to progress an appeal on the basis of trial counsel incompetence. What emerges therefore is that at no stage from early 2000 until 2004 did Mr Johnson make any allegations against Mr Cullen, either in various documents he caused to be filed in this court, or through the numerous counsel he had acting for him at various stages during the period. The focus had always been on alleged deficiencies in the trial judge’s summing up or on the possibility of fresh evidence.

The Crown case at trial

[21]   Before we detail the allegations Mr Johnson now makes against Mr Cullen, we need to describe briefly what the Crown case was at trial and the defence run at trial.

[22]   Mr Stavrianos lived in a house at Green Bay in Auckland. He “disappeared” on or about 14/15 January 1999. Mr Johnson had been living at the same house for  at least several months leading up to Mr Stavrianos’s disappearance. Mr Johnson paid rent to Mr Stavrianos on a weekly basis. Mr Johnson ceased living at the address at the same time as concerns by family and friends of Mr Stavrianos as to his whereabouts became heightened.

[23]   On 2 February 1999 a plumber attended the house due to a malfunctioning toilet. A portion of Mr Stavrianos’s skull cap was found to be lodged in the U-bend of the toilet plumbing. No other part or parts of Mr Stavrianos’s body have ever  been located. Examination of the piece of bone located disclosed that Mr Stavrianos had died from a shotgun blast to his face or forehead or slightly to either side of his head.

[24]   Forensic examination revealed blood stains which identified the scene of the shooting as the toilet area of the address. Crown evidence indicated that efforts had been made to clean the walls of the toilet. Further blood staining was consistent with Mr Stavrianos’s body having been dragged from the toilet area to a bedroom wardrobe, although Crown scientists could not assist in determining how the body had been removed from the house.

[25]   On 23 February 1999, the police charged Mr Johnson with the murder of    Mr Stavrianos. The Crown case at trial was circumstantial. We shall consider some of the details of the evidence later in these reasons.

The defence run at trial

[26]   The  defence   run  at  trial  was  that  Mr  Johnson  had   stumbled   upon   Mr Stavrianos’s dead body and had decided to dispose of it. The Crown called one Trevor Rarere, to whom Mr Johnson had made that admission. Mr Rarere had said that Mr Johnson had given two reasons for his actions:

(a)panic;

(b)he did not want Mr Stavrianos’s daughter “finding him like that”.

[27] The defence was therefore that, while Mr Johnson might be an accessory after the fact, he was not a killer. The Crown had called evidence detailing highly suspicious actions of Mr Johnson after the “disappearance” of Mr Stavrianos. The defence tactic at trial was to explain away those actions on the basis that he was in a state of panic and he thought that he would be (wrongly) suspected of murder. This line of defence is clearly reflected in Mr Johnson’s handwritten legal aid application as referred to at [11] above.

Evidence on the appeal

[28]   On 6 October last year, Mr Johnson swore his first affidavit. Mr Cullen responded by an affidavit sworn on 24 February this year. Subsequently, on

10 March this year, Mr Johnson swore a second affidavit in reply. Both Mr Johnson and Mr Cullen were cross-examined at the hearing before us on 16 March.

[29]   Mr Johnson confirmed that, in preparing his affidavits, he had had to rely largely on memory of events that had occurred in 1999.

[30]   Mr Cullen on the other hand was able to refresh his memory from numerous file notes and other documents, many of which had been countersigned as accurate by Mr Johnson. Mr Cullen’s record-keeping was meticulous. Indeed, none of the present bench can recall a case where trial counsel’s records were relevant in which better records had been kept. We do not know whether Mr Cullen’s record-keeping in this case is symptomatic of his normal practice or whether his care reflected the fact that “from the outset [he found] Mr Johnson…a difficult client”. Whichever is the case, we would observe that the record-taking cannot be faulted. It has also enabled us to reach findings as to what happened during the course of preparation for the trial and during the trial itself with a high degree of certainty.

[31]   Indeed, it  is  obvious  that  Mr  Johnson  was  caught  quite  unawares  by  Mr Cullen’s notes, many of which Mr Johnson had in fact signed, although clearly forgotten. There is a significant shift in Mr Johnson's allegations between his first affidavit and his second. The shift no doubt reflected the fact that even Mr Johnson recognised that some of the assertions in his first affidavit were plainly unsustainable in light of documentary material Mr Cullen appended to his affidavit.

Mr Johnson’s principal complaint

[32]   Mr Johnson’s principal complaint now is that Mr Cullen ran a defence which he (Mr Cullen) knew to be false. Mr Johnson says that he went along with it, even though he knew it exposed him to some risk. This, of course, is an alarming allegation. If true, it would mean that Mr Cullen had acted in complete breach of his duties as an officer of the High Court. We are satisfied, however, that Mr Johnson’s allegation is completely baseless and a lie.

[33]   Mr Johnson’s assertion now is that, at his first meeting with Mr Cullen, he told Mr Cullen what his friend Mr Rarere had told him to say about Mr Stavrianos’s death and that he expressly told Mr Cullen that this was an account made up by     Mr Rarere.  The  alleged  “Rarere”  account   given  to  Mr  Cullen  was  that  he   (Mr Johnson) had come home and found Mr Stavrianos on the floor, looking like he had been whacked with a spade. Mr Johnson had then panicked and disposed of the body. According to Mr Johnson, Mr Cullen knew right from the start that this was a false story and that it was simply what Mr Rarere had told him to say. According to Mr Johnson, Mr Cullen just accepted this false account. According to Mr Johnson, Mr Cullen never said to him  words  to  the  effect,  “I’m  not  interested  in  what  Mr Rarere  says  for  you  to  say,   I  want  to  know  what   you  say  happened.”   Mr Johnson’s account now is that not only was he not the murderer but also he knows nothing about the death, did not stumble upon the body, and did not dispose of it.

[34]   Mr Cullen strongly disputes that this is what occurred. He says that the account he took from Mr Johnson was what Mr Johnson said had happened. That account was to the effect that Mr Johnson was not involved in the murder but had disposed of the body.

[35]   We have no hesitation at all in rejecting Mr Johnson’s account and in accepting Mr Cullen’s. There are a number of reasons for that conclusion.

[36]   First, it is noteworthy how this allegation has developed since Mr Johnson filed his first affidavit. He said nothing in that affidavit about his telling Mr Cullen that his account as to what had happened was what Mr Rarere had told him to say and that it was not accurate. Indeed, the only assertion made which in any way involved Mr Rarere in that affidavit was this:

27. I also instructed Mr Cullen I did not accept I had made any statements to Mr Rarere about finding a  body and cleaning up.  Accordingly I wanted   Mr Rarere to be cross-examined on this point, but Mr Cullen did not do so.

[37]   Mr Kaye, in his written submissions filed on 12 October last year, did not refer to this damning allegation against Mr Cullen, namely that he had been told that the account as to finding the body was just Mr Rarere’s suggestion as to what he

(Mr Johnson) ought to say and that it was not in fact what happened. What eventually emerged as the principal allegation against Mr Cullen came later, after  Mr Johnson had read Mr Cullen’s affidavit and was scrambling to find an answer to it. The developing nature of the complaint and its absence from the original affidavit are very significant.

[38]   Secondly, the assertion makes no sense. Mr Cullen had no conceivable interest at the time of his first meeting with Mr Johnson in fabricating a defence. He asked Mr Johnson his account and took detailed notes of what Mr Johnson had said. Had Mr Johnson said to him words to the effect, “This is what Mr Rarere has told  me to tell you”, it is inconceivable that Mr Cullen would not have said words to the effect, “Look, I’m not interested in what Mr Rarere told you to say. I want to know what you say occurred.” Yet, according to Mr Johnson, he said nothing to that  effect.

[39]   Thirdly, if, as Mr Johnson now says, he was not even an accessory after the fact, what conceivable reason would there be for him not to tell Mr Cullen that?  Why give him Mr Rarere’s account which places him in the house, cleaning up, and disposing of a dead body? Mr Johnson gives no explanation for what could only be described as bizarre behaviour on the basis of what he now says the situation to be.

[40]   Fourthly, Mr Johnson’s new account is quite inconsistent with the entire way in which the defence was run. We do not need to go into all the details. One feature alone will demonstrate beyond any doubt at all that Mr Johnson had told Mr Cullen that his defence was to be that he was an accessory after the fact but not a murderer. There is no doubt about the instructions Mr Johnson gave. There is also no doubt  that Mr Cullen faithfully carried them out.

[41]   That telling fact is this. On 10 December 1999 Mr Cullen saw Mr Johnson at Mount Eden Prison. He gave Mr Johnson a copy of his proposed final address to the jury and he read out the entire address to him. He made certain  alterations to it as  Mr Johnson instructed. He then obtained written confirmation of Mr Johnson’s approval of the contents of the address and of his permission to make the admissions contained in it. Mr Johnson then signed a document which read as follows:

10/12/99 meet I Johnson @ Mt Eden & read address in its entirety to you.

Ian Johnson confirms & approves the contents of the proposed address of his Counsel as read thru’ & delivered today, 10/12/99 and confirms Mr Cullen is authorised to make such concessions and invite such inferences as are in that address.

[42]   What were some of the “concessions and … inferences” to which Mr Cullen referred in that note which Mr Johnson signed? Part of the approved final address read as follows:

Well, equally I’d suggest to you, you might have no difficulty in concluding or accepting that:

(1)SS [Mr Stavrianos] is dead as a result of events that occurred some time after 12.00 on 14-15/1/99; and

(2)That the premises were cleaned up by my client IDJ some time on 15/1/99; and

(3)That IDJ then disposed of the remains of Mr Stvrns [Stavrianos].

I’d suggest to you, you would have no difficulty in accepting those three pts [points] because they have not, after all, been challenged in this trial.

[43]   Mr Cullen then went on in the address to develop the defence which was, as it had always been, that those findings (of cleaning up and disposing of the body) might make Mr Johnson an accessory after the fact but did not establish that he was the murderer. Mr Cullen went on to explain that the actions Mr Johnson later took were consistent with panic on his part and more particularly his being scared of the police because of his possible apprehension on fraud matters, where he acknowledged that he had been up to no good.

[44]   Mr Perkins, for the Crown, cross-examined Mr Johnson about this at the appeal hearing. The cross-examination read as follows:

Q.This is the address that was read to you and you approved and confirmed of Mr Johnson, you told us that a moment ago didn’t you?

A.       Yeah.

Q.But you also told us earlier today that you never told Mr Cullen that you cleaned up?

A.       Well I didn’t.

Q.       Why would you not ask him to change that?

A.       I don’t know. I just signed – I just signed it, did what he told me.

Q.Have a look at 3 please, still on page 9.  That “Ian Douglas Johnson  (IDJ) then disposed of the remains of Mr Stravianos”. Why didn’t you ask him to change that?

A.       I don’t know. I don’t know why he didn’t.

Q. Well, could it be Mr Johnson that it’s because those were your instructions to Mr Cullen at the time, but you are now claiming on this appeal that they weren’t, that’s the truth of the matter isn’t it?

A.       No it isn’t.

[45]   Notwithstanding  Mr  Johnson’s   denial,   we   are   quite   satisfied   that   Mr Perkins’s “truth of the matter” is indeed just that.

[46]   Mr Johnson’s principal complaint against Mr Cullen is baseless. We are very clear that Mr Johnson instructed Mr Cullen that he had stumbled across the body, cleaned up, and then  disposed  of  the  body.  We  are  satisfied  that  the  defence Mr Cullen ran on Mr Johnson’s behalf was in line with the instructions Mr Cullen had been given.

Detective Richard Harris

[47]   Detective Richard Harris gave evidence for the Crown. Mr Kaye, in his submissions, has articulated Mr Johnson’s complaint as follows:

The Appellant instructed Trial Counsel to challenge all of the evidence of Detective Harris as inadmissible, but Trial Counsel insisted it remain in evidence.

[48]   Detective Harris gave evidence of  an  interview  he  had  conducted  with  Mr Johnson. Mr Johnson had made no admissions to Detective Harris. What he had said was consistent with the instructions he had given to Mr Cullen.

[49]   Mr Cullen had discussed Detective Harris’s brief with Crown counsel and had had some excisions made. They were marked  up  with  a  pen.  Before  Detective Harris was called, Mr Cullen went to see Mr Johnson in the cell adjoining

courtroom 6 (where the trial was being conducted). Mr Cullen, who had not previously received any instructions to challenge Detective Harris’s evidence, went through the marked up brief. Mr Johnson said that it was “okay”. Mr Cullen kept a detailed file note of their exchange. After Detective Harris had completed his evidence-in-chief, Mr Cullen gave Mr Johnson a note which read:

As we’ve discussed, I will not ask this witness, Mr Harris, any questions. Can you write O.K. below to confirm you still agree with this?

[50]Mr Johnson did write “O.K.”.

[51]   We are satisfied that Mr Johnson never gave instructions to challenge the admissibility of Detective Harris’s evidence. Indeed, even now, Mr Kaye has not explained the basis upon which a challenge could have been made to it. Further, we are satisfied that Mr Cullen followed his instructions in every respect. Mr Johnson instructed him not to cross-examine Detective Harris. Mr Cullen’s advice in that respect was entirely sensible, given the nature of the defence being run and the nature of Detective Harris’s evidence.

Trevor Rarere

[52]   Trevor Rarere gave evidence that he had had a conversation with Mr Johnson in which Mr Johnson had told him that he had come home and found his flatmate [Mr Stavrianos] with a hole in his head. Mr Johnson had told him, Mr Rarere said, that he had panicked, cleaned the house up, got rid of the body, and left.

[53]   Mr Rarere’s account was, of course, entirely consistent with Mr Johnson’s instructions to Mr Cullen. Further, Mr Rarere was the only witness through which the “accessory after the fact” defence could be raised, as Mr Johnson had made it quite clear to Mr Cullen that he did not intend to give evidence himself.

[54]   Mr Rarere was, therefore, a vital witness from the defence perspective. It is true that there were certain  aspects  of  Mr  Rarere’s  evidence  which  concerned  Mr Johnson. Mr Cullen had given those matters careful thought.  Prior to trial he  had prepared a document dealing with questions he knew Mr Johnson wanted him to

ask of Mr Rarere. In this document, which he annexed as Exhibit X to his affidavit, Mr Cullen had set out what he saw as being potential  problems  in  questioning     Mr Rarere. We observe in passing that this document to our mind reinforces the care with which Mr Cullen approached his task. He set out in Exhibit X the three topics on which Mr Johnson had suggested questioning, and then set out the possible downsides. Exhibit X was then discussed with Mr Johnson prior to trial. Then, at a morning adjournment during the trial, while Mr Rarere was still giving his evidence-in-chief, Mr Cullen saw Mr Johnson in the court cell and reread Exhibit X to him. Having discussed the matter again, Mr Cullen then asked Mr Johnson, “Can  I go up and say ‘No questions’, ‘cos he’s helping you at the moment but clearly doesn’t like you?” Mr Johnson replied, “O.K.” Mr Cullen then recorded that exchange on the bottom of Exhibit X.

[55]   We are quite satisfied that Mr Johnson did not instruct Mr Cullen “to challenge and discredit the evidence of Trevor Rarere”. On the contrary, he instructed him not to cross-examine Mr Rarere. That decision was made on the basis of counsel’s advice, which advice we find to have been sound advice.

Failure to call other witnesses

[56]   Complaint is now made about Mr Cullen’s failure to call three possible witnesses, Dean Watts, Bryce Cowan, and Harry Pilling. This point can be disposed of quickly. There is nothing in it.

[57]   Defence counsel had discussed with Mr Johnson on several occasions as to whether  any  witnesses  should  be  called.   Mr  Johnson  had  suggested  some.   Mr Cullen and his junior, Mr Wells, had looked at what they could say, and had concluded that they would not advance the defence. Mr Johnson had approved that decision, both orally and in writing.

[58]   We have looked at what those witnesses would have said.  We agree with   Mr Cullen’s assessment that they would not have assisted the defence. Indeed, parts of their police briefs would have been harmful to Mr Johnson’s position, had they been called and been exposed to Crown cross-examination.

[59]   We find, contrary to Mr Johnson’s assertion now, that he did  not  instruct  Mr Cullen to call these witnesses. On the contrary, he accepted Mr Cullen’s advice that the witnesses should not be called. That advice was soundly based.

Failure to advise on the effect of consenting to some Crown briefs of evidence being read

[60]   In the normal way, some uncontroversial Crown briefs of evidence were read.

[61]   Mr Johnson, in his first affidavit, asserted that he had thought that, by consenting to a brief of evidence of a witness being read, that brief “would not be before the jury”. He said that it was not until after the trial commenced that he realised that was not the case. In cross-examination, he accepted that, at least by the second day of trial, he appreciated what the effect of reading briefs was.

[62]   Mr Cullen said that, before trial, he had fully explained the issue of reading briefs of evidence. He said he had explained to Mr Johnson which evidence was to be read and why.

[63]   We accept Mr Cullen’s evidence. Mr Johnson could not possibly have believed that, by consenting to evidence being read, he was thereby eliminating that evidence from the trial. Were that possible, he could simply have consented to all  the evidence being read, thereby eliminating the entire Crown case. That is  obviously illogical and Mr Johnson is not a fool.

[64]   Further, we note that Robertson J, in his opening remarks to the jury, said this:

What happens next is that first of all Mr Colbert will open. That is he will talk to you about what the case is about, and then the Crown calls witnesses. Many of those witnesses will come and stand in the witness box behind that microphone. I haven’t been told yet but I think I can be confident that some witnesses won’t actually come here. Whenever  there  is  a  trial  in  the  High Court there has always been a preliminary hearing in the District Court first. If there is a witness whose evidence is not controversial the lawyers for the accused can say they don’t want to cross-examine, so instead of bringing someone along to say what in advance all the lawyers know, what we do is

get the registrar to read out the record of what they said on the previous occasion. That is evidence exactly the same as if the person stood in the witness box. It is simply a way of us trying to be sensible and efficient about time and money and resource.

[65]   That can have left Mr Johnson in no doubt whatever about the status of read evidence.

Failure to cross-examine three Crown witnesses

[66]   The witnesses concerned were John Duxfield, Nigel Cheer, and Louis Alp. The   evidence   of   Messrs   Duxfield   and   Cheer   was   read   by   consent   on    7 December 1999. Mr Alp’s evidence was read the following day.

[67]   We deal with these witnesses in turn. Mr Duxfield was Mr Johnson’s brother-in-law. He gave evidence that Mr Johnson had visited him and his wife on three occasions in January 1999. Mr Perkins submitted to us that Mr Duxfield’s evidence was of no real moment to either the Crown case or the defence case. The only potentially significant part of his evidence related to Mr Johnson telling him, on the third visit on 30 January 1999, of an attempt Mr Johnson had made to travel by boat from Tauranga to Australia. That evidence did not particularly help the Crown case, although it was slight evidence in support of a proposition that, following the murder, Mr Johnson had tried to flee the country. But the evidence, as far as it went, was not inconsistent with the defence strategy. It was openly acknowledged by the defence that, prior to the murder, Mr Johnson had been involved in fraudulent matters and was keen to keep out of the police’s way. As well, on the defence case, he had disposed of a body, another fact which would have made Mr Johnson keen to leave the country. We are of the view that Mr Perkins’s submission was accurate  and that this evidence was, overall, of no real significance to either side. We can quite understand why Mr Cullen recommended that the evidence be read.

[68]   Mr Johnson’s complaint is that Mr Duxfield got the date of his first visit wrong. Mr Duxfield said that the first visit was on the weekend of 16-17 January.  Mr Johnson says that it was in fact about 11 January. It would seem from other evidence which was before the High Court that Mr Johnson’s date is accurate. But

the date of the first visit was of no relevance in the case at all. The evidence was being called because of what Mr Johnson told Mr Duxfield on the third visit. Even  if, therefore, Mr Duxfield did get the date of the first visit wrong, it was an inconsequential error, which any responsible counsel would have recognised.

[69]   Mr Cheer gave evidence that in October 1998 Mr Johnson was staying at a house occupied by Brent Cheer, Nigel Cheer’s brother. He said that one night when he (Nigel Cheer) was present at Brent’s place, they heard a possum in the tree outside. Mr Johnson said “he had a thing for that”. He went outside and came back with some “separate bits in newspaper”. The bits when assembled became  a sawn-off shotgun. Mr Johnson went outside and shot the possum. The significance  of the evidence was that Mr Johnson, at least as at October 1998, had access to a sawn-off shotgun and that he knew how to fire one.

[70]In his first affidavit, all Mr Johnson said on this topic was this:

So far as Mr Cheer was concerned, I challenged the inference that I owned a gun. I wished Mr Cullen to cross-examine Mr Nigel Cheer on that point…

[71]   What  is  noteworthy  is  that,  even  now,  Mr  Johnson  does  not  dispute  Mr Cheer’s account of the possum-shooting incident. Mr Cheer  did  not  say that  Mr Johnson owned the gun. He merely reported that Mr Johnson had said he had “a thing” for dealing with possums and had then gone out of the house, coming back with bits which, when assembled, formed a sawn-off shotgun. Given that there was and is no challenge to the description of the incident, what was Mr Cullen  to  ask  Mr Cheer? The only question he could have asked him was, “Do you know whether Mr Johnson owned the gun?” Probably he would have answered, “I don’t know.” Where would that have taken matters? Even now, Mr Johnson does not expressly assert that he did not own a gun. Even if Mr Cheer had answered “No, Mr Johnson didn’t own a gun”, it still would have left open the fact that he obviously had access to one. A “Yes, he did own a gun” answer would, of course, have been most unhelpful to the defence.

[72]So far as Mr Alp is concerned, all Mr Johnson said in his affidavit was this:

Mr Alp ought to have been called as I instructed Mr Cullen that I denied the evidence given by Mr Alp. I had told Mr Cullen that Mr Alp was lying. Accordingly, he ought to have been called to give his evidence before the Court so that he could have been cross-examined by Mr Cullen both as regards to the comments that he alleged I made, and his suggestion that I knew what had happened.

[73]Mr Cullen denied that he had received any such instruction.

[74]   Presumably, the passage in Mr Alp’s evidence to which Mr Johnson now objects is  the  following  passage  relating  to  a  meeting  between  Mr  Alp  and  Mr Johnson in mid to late January 1999:

The accused then used the cellphone and made a call to his brother.

I heard the accused saying that the police were looking for him because his flatmate was missing and that the police suspected foul play.

The accused was edgy just sitting there.

The accused then said, “Something has happened, but it wasn’t me.”

The accused then went on about a Maori guy James who wasn’t getting on with Stavros.

The accused didn’t say if he had seen or done anything.

The accused obviously knew what had happened but I didn’t push him.

[75]   Whether Mr Alp was lying or not, the statements attributed to Mr Johnson were perfectly consistent with what Mr Johnson had told Mr Cullen and with the defence  strategy  at  trial.  That  “something  has  happened”  is  consistent  with   Mr Johnson’s having stumbled upon Mr Stavrianos’s body. The statement “but it wasn’t me” is not only consistent with the defence case but also potentially helpful to that case. It is arguable whether the last sentence was admissible, but it was not inconsistent with the defence case. After all, it was the defence case that Mr Johnson knew that Mr Stavrianos had died as a result of some extremely violent action. The inference Mr Alp drew that Mr Johnson “knew what had happened” could not be used by the Crown and was not used by the Crown as an admission to murder; it could not be as Mr Johnson had clearly said he was not responsible for the death of Mr Stavrianos. Rather, he was pointing the finger at another man.

[76]   We do not accept that Mr Cullen was instructed to cross-examine Mr Alp. His decision not to cross-examine Mr Alp was entirely sound.

Conclusion

[77]   All of Mr Johnson’s allegations against Mr Cullen are baseless. We are satisfied that Mr Cullen acted at all times in accordance with his instructions and that his trial judgments were sound. Mr Johnson has not come anywhere near showing trial counsel incompetence, still less a miscarriage of justice as a consequence of his trial counsel’s actions. Mr  Johnson  was,  in  our  opinion,  very  well  served  by  Mr Cullen. This ground of appeal must fail.

Unreasonable verdict

[78]   The second  ground  of  appeal  was  that  the  verdict  was  unreasonable.  Mr Kaye advanced this argument on the  basis  that  all  of  the  suspicious  things Mr Johnson did were as consistent with his being merely an accessory after the fact as with being the murderer. Mr Kaye finished this part of his submissions  as follows:

In summary, the weight of evidence so far as it showed any involvement of the Appellant in the death of the deceased at best showed evidence of guilt  as an accessory after the fact.

[79]   There are two ironies about this argument. First, this was exactly the argument Mr Cullen ran at trial. Despite all the criticisms that have been advanced  of Mr Cullen, we come back to the very approach he adopted, in our view with great skill.

[80]   Secondly, it is somewhat ironic that Mr Johnson now wishes to be acquitted on the basis that the evidence was consistent with his being merely an accessory after the fact, a position he has now repudiated on oath. Mr Johnson now tells us that the defence theory run at trial, namely that he stumbled across the body, panicked, cleaned up, and then disposed of the body, was untrue. It is surely somewhat  unusual then to be asked to contrast the Crown case with what is now a discredited

defence theory run at trial. Mr Kaye on this branch of the argument would have us look at the case on the basis of Crown theory versus defence theory at trial. Mr Kaye sought to have us  conclude that  a jury must have had  a reasonable doubt as to     Mr Johnson’s involvement in the killing, because of the possibility that he was merely an accessory after the fact.  If, of course, we did so conclude, the result of  this appeal would have to be an acquittal. That would surely be surprising given that Mr Johnson, in his sworn evidence before us, expressly repudiated the defence theory run at trial. An acquittal in such circumstances would surely  be  extraordinary.

[81]   Even without that conundrum, however, this case does not come anywhere near the test set out in R v Ramage [1985] 1 NZLR 392 (CA) at 393. There is no way in which we could be satisfied that a jury acting reasonably must have entertained a reasonable doubt as to Mr Johnson’s guilt.

[82]   Mr Johnson was at home that night with Mr Stavrianos. Mr Stavrianos’s daughter Danielle was present that night and sensed tension in the air. Danielle and her partner left Mr Stavrianos’s place somewhere between 10 pm and midnight. At that time only Mr Stavrianos and Mr Johnson were  at  the  house.  The  next  day  Mr Stavrianos failed to keep appointments. No one else ever saw Mr Stavrianos  alive again.

[83]   Next morning, at 7.06 am, Mr Johnson telephoned his brother from his home. There is no evidence that Mr Johnson was elsewhere during the night. There is no evidence of any break in to the house. Clearly on that evidence alone Mr Johnson had the opportunity to kill Mr Stavrianos.

[84]   Next there was the disposal of the body, to which Mr Johnson had confessed to Mr Rarere. Mr Johnson’s explanation to Mr Rarere could have been accepted by the jury. But clearly it was open to the jury to reject that explanation and open to the jury to  decide  that  it  was  nonsensical  for  Mr  Johnson,  if  he  had  not  killed  Mr Stavrianos, to act in the way he did. As Mr Perkins submitted, his actions were  so much more consistent with those of the killer than with someone who had simply stumbled upon a crime scene. As to Mr Johnson’s explanation that he did not want

Danielle Stavrianos “finding him like that”, it was clearly open to the jury to reject that. If he was so concerned for Danielle, why would he leave her with a lifetime of uncertainty as to the whereabouts of her father’s body?

[85]   As to the clean up, it was clearly open to the jury to consider that only the killer would be prepared to handle the body of a man who must have had very little of his face or head remaining attached to his body. Only the killer would be  prepared to undertake what could only amount to a revolting clean up assignment.

[86]   Mr Perkins, in his submissions, referred to numerous other aspects of the Crown case which were, he submitted, much more consistent with Mr Johnson being the killer rather than a mere accessory after the fact. We do not see the need to go into details regarding that evidence. We are quite satisfied that this was a strong Crown case and that it does not come near meeting the s 385(1)(a) test, as explained in Ramage.

[87]This ground of appeal too must fail.

Solicitors:
Crown Law Office, Wellington