R v McKenzie Ca7/03

[2003] NZCA 385

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RETRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 7/03

THE QUEEN

v

PAUL DESMOND MCKENZIE

Hearing:         26 May 2003

Coram:McGrath J Doogue J Panckhurst J

Appearances: D Bunce for Appellant

M N Zarifeh and A M Toohey for Crown Judgment:   12 June 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1]    Two grounds are raised in support of this appeal against conviction for aggravated robbery. They are that the trial Judge erred in declining an application to discharge the jury once evidence emerged that the appellant had served time in prison. Secondly that the Judge was wrong to allow cross-examination of the appellant by the prosecutor with reference to a statement made to the police by a co- accused. Thereby, it was argued, the principle that out of court statements are only

R V PAUL DESMOND MCKENZIE CA CA 7/03 [12 June 2003]

evidence against their maker was infringed. This issue became the major ground of appeal and it is convenient to consider it first.

Background

[2]    The aggravated robbery occurred on 28 April 2002. Three men including the appellant and Michael O’Connor went to the home of the complainant who was a cannabis dealer. The Crown case was that the three men intended to steal cannabis, by force if necessary.

[3]    Upon arrival there was a confrontation between the appellant and the complainant. Blows were struck and the appellant threatened the complainant with a cut-throat razor which was in his possession. At a point when all three  intruders were endeavouring to strip cannabis leaves from mature plants in a growing room in the house, they were secured in that room by the complainant. He then armed himself with a shotgun. The intruders endeavoured to escape from the growing room by breaking out through a boarded-up window. Meanwhile the complainant positioned himself outside the window. A further struggle ensued between the appellant and the complainant through the window, during which the shotgun was discharged. The appellant sustained arm injuries. The three intruders were then able to decamp via the window taking some cannabis and other items with them.

[4]    The appellant’s co-offender Michael O’Connor made a statement to the police. He said that only the appellant knew the complainant prior to  the event.  They did not have money to pay for cannabis, but wished to obtain some in order to procure other drugs. At the house the appellant endeavoured to subdue and control the complainant, while the co-offenders stripped the growing plants of cannabis and packed it into bags. In the process and at a point when the appellant entered the growing room, the three intruders were locked in.

[5]    By contrast the appellant denied both at interview and in giving evidence at the trial that robbery was ever contemplated. The intention was rather to purchase cannabis from the complainant. An argument developed. The  complainant was  upset that the appellant had brought two strangers to his home in the context of a

drug supply. A struggle ensued between the two. While they were so occupied Mr O’Connor and the third man of their own volition began stripping the cannabis plants. During a moment when the appellant was also in the growing room, the door was locked. The escape of the three and the shooting of the appellant occurred much as described by the complainant.

Cross-examination upon O’Connor’s statement

[6]    The appellant was first named in the indictment. Accordingly he was the first and, as it proved, the only defence witness.

[7]    After his evidence in chief counsel for Mr O’Connor briefly cross-examined the appellant. In relation to two topics she did so with obvious reference to passages in the statement which her client had made to the police. In the statement Mr O’Connor said that there was no pre-arranged plan to commit the robbery, rather that its commission was a spur of the moment result of the dispute between the complainant and the appellant. The appellant agreed with this but added (contrary to Mr O’Connor’s statement) that he had not instructed the others to fill bags with the cannabis plant. The second matter concerned the appellant’s assertion in chief that although there was a razor at the house, it was not his, it belonged to the complainant. With reference to her client’s statement counsel pointed out that Mr O’Connor told the police it was the appellant’s razor. Mr McKenzie maintained his denial with the aside that Mr O’Connor must have been tripping on acid if he  thought otherwise.

[8]    Cross-examination by prosecuting counsel followed. As soon as counsel put  a proposition which was identified as based upon Mr O’Connor’s statement, objection was raised by Mr Bunce. The trial Judge heard submissions in the absence of the jury. He ruled that the intended line of cross-examination was permissible. In reasons for that ruling which were delivered after trial (and to which we shall return in more detail shortly), the Judge held that the objection was too late, because once Mr O’Connor’s counsel had cross-examined on the statement the prosecutor could do likewise.

[9]    The balance of the prosecutor’s cross-examination included a number of references to factual matters contained in Mr O’Connor’s statement. These  questions were put in a fashion which clearly identified their source. The circumstances in which Mr O’Connor and the complainant had made statements to the police were referred to, in order to emphasise the point that there was no opportunity for collusion between the two, yet in various important respects their accounts were similar.

[10]   Perhaps the highpoint of the cross-examination for present purposes was aptly captured in the following exchange:

Q.    And I take it you’re not suggesting that somehow (the complainant) and Mr O’Connor got together and made up a story.

A.    I wouldn’t have a clue, probably. It’s amazing what the pigs can do these days.

Q.    Right, so somehow this is a conspiracy between your co-accused, the police and (the complainant) is it.

A.    Yep.

Q.    And that’s what you’re asking us to believe.

A.    Oh, I don’t care.

[11]   Mr Bunce submitted that the trial Judge was wrong to allow cross- examination upon the out of court statement of a co-accused. Because such  statement was not evidence against the appellant, cross-examination with reference to it should have been foreclosed. Otherwise not only was the appellant at risk of being discredited on the basis of questions derived from an inadmissible source, but the fundamental principle that statements are only evidence against their maker was likely to be compromised. Put rhetorically, how could the jury be expected to apply the trial Judge’s directions concerning the limited use to which the accused’s police statement could be put, when the prosecutor had been given licence to cross-examine with direct reference to its contents?

[12]   Mr Zarifeh resolutely defended the course of events at trial. He rightly pointed out that Mr O’Connor’s statement was already in evidence and its contents therefore known to the jury. This was not a situation where by means of questions in cross-examination totally inadmissible material was introduced. Rather the  issue was what use may be made by the prosecutor of material which was already in evidence.

[13]   With reference to authorities counsel submitted that co-accused’s statements were only evidence against their maker because vis-à-vis other accused they were hearsay, made in a situation and without the opportunity for other accused to rebut or comment on their contents. Once such statements were in evidence at trial it was legitimate for co-accused to be cross-examined upon their contents, as opportunity to accept or reject issues of fact was then given. Where an accused in cross- examination did not accept a proposition contained in the statement of a co-accused, the normal position obtained. That is the evidence in the statement was admissible and relevant only against its maker. However, any proposition which was accepted  in cross-examination became evidence against that accused. In the present case the trial Judge gave emphatic and correct directions concerning out of court statements. In the end result there was no risk of a miscarriage of justice arising from the method of cross-examination employed against the appellant.

Discussion

[14]   The Judge in his reasons for the ruling noted that Mr Bunce accepted the prosecutor could put any relevant factual propositions to the appellant, but objected to her doing so with direct reference to Mr O’Connor’s statement. The ruling continued:

I indicated to Mr Bunce that the objection was too late. That was because, without objection from him, Ms Lorimer had already cross-examined Mr McKenzie on Mr O’Connor’s statement, and therefore it would have been unfair to the Crown if Ms Toohey could not follow the same course. As through his counsel Mr O’Connor, whose interests were in conflict with Mr McKenzie’s interests, had put several passages in his statement to Mr McKenzie in cross-examination, without objection being taken by Mr Bunce, it seemed to me that the Crown should likewise be permitted to cross-examine Mr McKenzie on that statement.

[15]   It is apparent from the ruling that an experienced trial Judge did not find the issue a simple one, since he referred to the absence of authority on the point. As a matter of principle he did not see the rule as to co-accused’s statements as determinative of the limits of cross-examination. The matter was one to be met by directions to the jury in summing-up.

[16]   We do not consider that because Mr O’Connor’s counsel cross-examined upon her client’s statement to a limited extent it followed that the prosecutor was similarly entitled. Other considerations aside, counsel for Mr O’Connor confined  her questions to only two questions of fact. In relation to the first the co-accused were in agreement, namely that prior to arrival at the house there was no plan to commit a robbery. The second point concerned whether the appellant was armed with the razor (as Mr O’Connor told the police), or whether it belonged to the complainant. Seemingly counsel favoured the former because it suggested that the appellant went to the house armed and for his own motives, of which Mr O’Connor was unaware.

[17]   By contrast the prosecutor did not confine her questions to issues of fact which formed part of the Crown case. The focus was rather upon matters where the account of the complainant and Mr O’Connor were consistent. With reference to these consistencies the appellant was led to the suggestion that there must have been a conspiracy between the police, the complainant, and Mr O’Connor. Did this represent a legitimate cross-examination technique?

[18]   Counsel referred us to a number of authorities and we have considered some additional cases. These indicate that difficulties in relation to the proper limits upon cross-examination of an accused can arise in various categories of cases. The different categories are significant because the limits vary depending upon the circumstances and context of the case.

[19]   One category is cross-examination in the context of a single accused trial upon a document which is not in evidence. R v Treacy (1944) 30 Cr App R 93 is an example. The accused faced a murder charge. In custody he made a confessional statement. However the prosecution accepted the statement was inadmissible. Nonetheless, the accused was cross-examined upon the document when he gave evidence inconsistent with its terms. In delivering the judgment of the Court Humphreys J said at 96:

If it (the statement) is not admissible, nothing more ought to be heard of it and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a (an accused) person in cross-examination.

[20]   Likewise in R v Cross (1990) 91 Cr App R 115 the accused was shown and cross-examined upon a statement made by a person not called as a prosecution witness. At 122 the Court held:

At the end of the day, the probability is that, without calling Mr Sylvester, the prosecution persuaded the jury that he had made a statement contradicting the appellant’s account. That should not have happened, and it was, in our judgment, a material irregularity.

Unreported judgments of this Court in R v Lintott CA168/95, 25 September 1995, and R v Greig CA375/01, 2 May 2002, are further examples of cross-examination of an accused upon statements the makers of which were not called as witnesses. In each case the cross-examination was found to be irregular because of the introduction of material attributed to a defined source which was not otherwise in evidence.

[21]   Another and more difficult category of case is where there are multiple accused. In R v Rice (1963) 1 QB 857 the appellant was one of several accused in a conspiracy case. A co-conspirator made a statement to the police which was damning of others but not himself. The Crown did not introduce the statement in evidence in order “to avoid prejudice” to those co-accused who were implicated in the statement. Its maker however was cross-examined by the prosecutor upon the statement which he accepted was both voluntary and true. The Court of Criminal Appeal held at 868:

The decision in R v Treacy in no way supports any contention that the fact that a voluntary statement has been made cannot or should not be established or revealed in a cross-examination of its maker; on the contrary, such a statement made by one of several co-defendants can undoubtedly be used by the prosecution, in cross-examining him, as a tool to extract from him in the form of evidence on oath all that he has formerly said against his co- defendant. On the other hand, whilst information derived from an induced statement may be used, the fact that it was provided in a statement may not be revealed to the jury since evidence of, or revelation of, that fact tends in commonsense to lend weight to the subsequent evidence and is excluded, as has already been said, by the principle enunciated in R v Treacy.

[22]   This reasoning involved recognition of a distinction between cross- examination as to the content of a statement and cross-examination as to the existence (or fact) of the statement itself.  Where the statement is voluntary it may  be directly cross-examined upon. The existence of the document may be brought

out. Where, however, the statement is involuntary (or induced as it was put) the prosecutor may cross-examine with reference to matters derived from the statement provided their source is not revealed.

[23]   In R v Windass (1988) 89 Cr App R 258 one of two co-accused had been cross-examined by the prosecutor upon the diary of the other. It was produced as an exhibit and as evidence against its maker. In allowing the appeal the Court said at 263:

… it is, in our judgment, quite improper for counsel to take in his hand a statement which is inadmissible vis-à-vis the witness whom he is cross- examining, let alone allowing the jury to have a copy of the statement in their hands whilst he is doing that, and then to ask the witness to explain, almost sentence by sentence, the highly damaging statements, inadmissible against him, which the maker of the document had written.

The witness was of course the appellant. On the other hand it was considered “perfectly proper” to ask questions based on the content of the diary provided such questions were not linked to that document. Again then, there was emphasis upon  the method employed. Questions based upon the substance or content of the diary were permissible, so long as the link to that source was not made.

[24]   The next case is Lui Mei-lin v R [1989] 1 All ER 359 (PC). One of three co- accused made a statement to the police which was ruled inadmissible as resulting from an inducement. That accused gave evidence which differed materially from the account contained in the excluded statement. The appellant’s counsel sought leave to cross-examine the co-accused on his account to the police as a prior inconsistent statement. The trial Judge allowed cross-examination upon the substance of the statement, provided that source was not disclosed. In allowing the appeal Lord Roskill on behalf of the Board said at 362:

The only limit on the right of a co-accused to cross-examine another co- accused in these circumstances is, in their Lordships’ opinion, relevancy. If one co-accused has given evidence incriminating another it must be relevant for the latter to show, if he can, that the former has on some other occasion given inconsistent evidence and thus is unworthy of belief.

The Board added, however, that the trial Judge should warn the jury that the statement is not evidence supportive of the prosecution’s case and to that end should

“briefly tell” the jury why the statement was excluded. Should the inconsistent statement contain irrelevant material, such may be excluded, but otherwise the right to cross-examine upon it was said to be “unfettered”.

[25]   But the case closest in point to the present is the decision of this Court in R v Pui CA153/95, 30 May 1996. The parallels are quite striking. Three men were charged with rape. One of the accused (Moki) made a video interview which was supportive of the complainant’s evidence and also adverse to the appellant’s interests. Counsel for Moki cross-examined the appellant with reference to his client’s video interview which, by then, was before the jury.

[26]   Then the prosecutor cross-examined the appellant with reference to his admittedly false statement to the police, the complainant’s version of events and also by putting excerpts to him from the video interview of the co-accused Moki. As in the present case the consistencies between the accounts of the co-accused and of the complainant were emphasised. Finally, as here, the co-accused did not  give evidence.

[27]   In delivering the judgment of the Court Thorp J said that counsel for Moki was entitled to cross-examine the appellant for the purposes:

(1)of seeking his acceptance of Moki’s statements and thereby giving them evidentiary status; and

(2)of indicating Moki’s objection to contrary evidence given by the appellant, as unless this was done Moki would have been open to criticism in the event that he later elected to give evidence, at that time still an open question, and in the process contradicted the appellant’s evidence; or

(3)of shifting responsibility from Moki onto the appellant, and for that purpose attacking the appellant’s credibility.

However the “manner and extent” of such cross-examination was criticised, albeit only to a minor extent.

[28]   It followed that when the prosecutor cross-examined the appellant not only was Moki’s statement in evidence but the appellant’s acceptance or rejection of its contents was also before the jury through the prior cross-examination by Moki’s

counsel. The Court also accepted that it was proper for the prosecutor to cross- examine upon the co-accused’s statement for the purposes:

(1)of getting acknowledgement or adoption by the appellant of Moki’s statements, which would of course have converted them into evidence admissible against the appellant; or

(2)failing that, of getting the appellant’s rejection of the Moki position, either to use the appellant against Moki or so far as the inquiry and contradiction would bear on his credibility”.

[29]   Nonetheless the method of cross-examination adopted was strongly criticised. In particular direct reference to the transcript of Moki’s interview was said to be improper. A breach of the principles in R v Halligan [1973] 2 NZLR 158 (CA) and in R v Windass was indicated. With respect we are not sure that the reference to Halligan was helpful. That case proscribes the introduction of evidence not given by a complainant (who has failed to come up to brief) through police questioning of the accused based on the complainant’s out of court account. The so-called principle in Halligan, therefore, is simply a variant of the prohibition upon introducing material into evidence through cross-examination.

[30]   The present case, like Windass, involved a situation where the material cross- examined upon was already in evidence. Nothing new was introduced. Rather the issue was whether questions directly referenced to the co-accused’s statement, which was not evidence against the appellant, was permissible. The concern was as to method, not substance. In both Windass and the present case this is reinforced by the fact that the prosecutor in cross-examination drew out similarities between the accounts of the complainant and of the co-accused.  Obviously a prosecutor may,  and customarily does, challenge an accused on the basis of the complainant’s version of events. In pointing to consistency between the complainant and a co-accused’s accounts the questioner may be said to be doing nothing more than reinforcing the Crown case.

[31]   All of this indicates that it is the appearance of what is done which may be important. Assuming relevancy, an accused may be cross-examined upon all manner of factual propositions, some of which may be derived from a co-accused’s statement. But is it going too far to openly identify the proposition as one derived

from that source where the statement is before the jury although not evidence against the particular accused?

[32]   Mr Zarifeh argued that in such circumstances drawing a distinction between cross-examination on the subject-matter of a statement and cross-examination by reference to it was illusory. We understood him to mean that it was only natural for the prosecutor to refer to the similarities in the accounts of the complainant and the co-accused. Such would hardly escape the attention of the jury in any event. Therefore was it not appropriate to challenge the accused with reference to such concurrence and provide the opportunity for him to comment upon it? Provided the trial Judge gave adequate directions concerning the effect of out of court statements, no harm was done.

[33]   Mr Bunce, however, focused more upon the evidentiary aspects. The appellant was not responsible for what his co-accused said to the police. Moreover the co-accused’s statement was not evidence against him. Why therefore should he be asked to comment upon the co-accused’s account, even if it was materially similar to that of the complainant in some respects? To permit cross-examination of this  type would only render the task of the jury in following the directions of the trial Judge more difficult.

[34]   As is probably apparent from the above brief review of the cases the proper limits upon cross-examination of accused can be a difficult area in practice. It is important therefore that the approach adopted is workable both from the perspective of counsel and trial Judges. In our view the approach indicated in Cross, Rice, Windass and Pui is an appropriate one. In each the direct cross-examination of an accused upon a statement other than his own was found to be irregular. On the other hand cross-examination upon the substance of the statement, without reference to source, was permissible. This, we think, represents an appropriate dividing line as to what should be allowed.

[35]   It enables a prosecutor to fully explore any relevant issue of fact, including issues which may already be before the jury through a co-accused’s statement or other documents such as a diary. But a balance is struck to the extent that the

accused is protected against the need to explain or even comment upon remarks which are not of his making. And if counsel may not cross-examine with direct reference to another person’s document the Judge’s direction as to who the document is evidence against is less likely to be compromised.

[36]   The present case also provides a good example of the unfortunate consequences which can flow from direct cross-examination upon a co-accused’s statement. The appellant was questioned not only upon his co-accused’s statement, but also in relation to when it and the statement of the complainant were obtained by the police. In the result he was led to the spurious assertion of a conspiracy. We consider this was unfair, given the extent to which direct reliance was placed upon the out of court statements of others.

[37]   For these reasons we find that the manner and extent of the prosecutor’s cross-examination was irregular. The proper dividing line is that questions derived from, or based upon, the content of a co-accused’s statement may be asked. But  such questions may not be referenced back to that source as if the statement was evidence against the accused. In this instance the cross-examination by co-accused’s counsel also crossed the line, but only to an insignificant degree.

[38]   For completeness we note that cross-examination with direct reference to a statement is permissible where defence counsel seek to impeach a co-accused on the basis of their own previous inconsistent statement, as in Lui Mei-lin. That is in situations where the previous statement is not admissible and therefore is not in evidence at the suit of the prosecution. But such cases comprise their own category involving as they do cross-examination upon a document of which the accused is the maker.

Reference to appellant’s past

[39]   The complainant in giving evidence of the incident at his home said that he recognised the appellant on his arrival with the other two men. He explained they had known one another for a couple of years having met through the appellant’s older brother. Asked to estimate how often he saw the appellant the complainant

began to say that because the appellant was in jail for part of the time he had known him, their contact was irregular. The trial Judge immediately intervened by instructing the jury to disregard the comment since it “should not have been said”. Mr Bunce then indicated that he wished to be heard further on the matter. This occurred a little before the luncheon adjournment.

[40]   When the trial resumed in the afternoon Mr Bunce made formal application for the jury to be discharged. The Judge refused the application. The notes of evidence record that he was influenced by the circumstance that the matter was dealt with at the time and with little disruption to the flow of the complainant’s evidence. In other words it was not a case where the problem was highlighted by an argument in the absence of the jury leaving the jury with an opportunity to discuss and speculate upon the irregularity. The Judge also said he would give detailed reasons after trial, if necessary.

[41]   Such was done. In these the Judge noted that counsel for the co-accused expressed a preference for the trial to proceed. He also brought to account the  flavour of the case, namely that on any view of matters the appellant and his co- accused were actively in pursuit of drugs at the relevant time. Hence something of the character of the accused was already before the jury and firm directions in that regard were obviously required.

[42]   In the course of his summing-up the Judge repeated the direction to ignore the complainant’s comment concerning the appellant having been in prison. He instructed the jury to put this factor “entirely out of your minds” and added “you must ignore it completely”. In the event it was necessary for the Judge to extend that direction to cover evidence which the appellant gave at trial. In the aftermath of the robbery he used a false name, but he sought to explain this as attributable to the fact that he was wanted by the police on other charges at the relevant time. Accordingly the Judge gave a direction that this explanation was relevant only to the false name issue and was not to be otherwise brought to account.

[43]   In relation to this ground of appeal Mr Bunce realistically conceded that in light of the prompt intervention of the Judge on its own it could not support a

miscarriage finding. Rather he submitted it was an irregularity to be assessed alongside the cross-examination point.

Conclusion

[44]   The question is whether the two irregularities which we have discussed, either singly or in combination, could have influenced the verdict such that there is a risk the appellant did not receive a fair trial. In determining that question it is necessary to note a further aspect of the summing-up.

[45]   Both at the commencement of the trial and in his directions to the jury the trial Judge gave full directions concerning the use to which out of court statements to the police could be put. No criticism was made of these directions. The Judge illustrated the need to assess the case against each accused separately and with reference to the evidence admissible against that accused by reference to “boxes”. The Judge said:

Mr McKenzie’s statement goes only in his box. Mr O’Connor’s statement goes only in his box, and that dividing line between these two boxes cannot be breached in respect of the two statements.

[46]   Further, with reference to Mr O’Connor’s statement the Judge gave a specific direction concerning the cross-examination of the appellant upon it. He re- emphasised the point that the statement remained evidence against Mr O’Connor alone, regardless of the cross-examination by both Mr O’Connor’s counsel and the prosecutor.

[47]   We have considered whether these directions were sufficient to overcome the cross-examination irregularity. The Judge certainly gave both clear and firm directions concerning co-accused’s statements including that Mr O’Connor’s statement remained evidence against him alone regardless of the cross-examination upon it. But the damage which flowed from the permitted cross-examination  was not restricted to possible confusion in relation to the requisite direction. As noted earlier the appellant was eventually led to the assertion of a conspiracy. Thereby his credibility in the eyes of the jury must have been harmed.

[48]   That effect we regard as decisive. Once the appellant’s credibility was compromised in this way the fairness of the trial process was also affected. Regardless whether the defence case was tenuous in nature, we cannot confidently say that absent the impermissible cross-examination a guilty verdict remained inevitable.

[49]In these circumstances there shall be an order for a retrial.

Solicitors:

Crown Solicitor, Christchurch