R v McMaster

[2009] NZCA 393

IN THE COURT OF APPEAL OF NEW ZEALAND

CA608/2008
[2009] NZCA 393

THE QUEEN

v

PHILLIP MICHAEL MCMASTER

Hearing:29 June 2009

Court:Hammond, Simon France and Lang JJ

Counsel:H D M Lawry for Appellant

M D Downs for Crown

Judgment:9 September 2009 at 10 am

JUDGMENT OF THE COURT

A        The application to adduce further evidence is dismissed.

B        The appeal against the convictions and sentence is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]       The appellant, Phillip McMaster, was found guilty by a jury, presided over by Judge Blackie, on one count of unlawfully taking a motor vehicle and one count of aggravated robbery.  He was sentenced to a term of eight years imprisonment.

[2]       Mr McMaster appeals his conviction on two bases.  First, it is submitted that the Judge erred in the directions he gave to the jury on the elements of the aggravated robbery offence (s 235(b) of the Crimes Act 1961) and the parties issue (s 66(2) of the Crimes Act).  Secondly, by way of a fresh evidence application, the other offenders involved in the robbery now say that Mr McMaster was not one of their number.  For these reasons, it is said the verdicts are unsafe and should be set aside.

[3]       If the convictions are upheld, a sentence appeal is advanced on the footing that the sentence was manifestly excessive and failed adequately to take into account parity with the sentence of the co-accused.

Background

[4]       On 20 November 2006, two security guards were engaged in replenishing two automated teller machines in South Auckland.  They were robbed at gunpoint of a sum of $140,000, which was in four canisters in $10 and $20 denominations.

[5]       The security guards were confronted by two men, one holding a firearm.  The gunman demanded that the guards drop the bags containing the canisters, otherwise he would shoot.  The other man picked up the bags that were dropped to the ground by the guards.  These two men left the scene of the offending in a stolen Subaru which was driven by a third person.

[6]       Nathan Stevens admitted picking up the bags.  He pleaded guilty to aggravated robbery, car conversion and money laundering in relation to some of the proceeds of the robbery.  He later testified on behalf of the Crown.  In addition to giving evidence as to his role, Mr Stevens said that Joshua Kite was the get-away driver, and that the appellant was the gunman.

[7]       Mr Stevens said in evidence that after the aggravated robbery, he, Mr Kite, Mr McMaster, and a further offender, Rima Tuau, went to the home of a relative of Mr McMaster to count and then divide the proceeds of the robbery.  For his part in the robbery, Mr Stevens took $20,000.

[8]       Mr Stevens’ testimony squared with other evidence led by the Crown at trial. 

[9]       First, there was supporting oral evidence.  Mr McMaster’s grandfather said Mr McMaster came to his home on the day of the robbery, as did “three or four” of his friends.  A witness described overhearing Mr McMaster and Mr Stevens talking about the robbery for approximately “half an hour”.  The witness said their discussion involved reference to “over $100,000” having been stolen.  This witness said that he was asked by Mr Stevens, in Mr McMaster’s presence, to dispose of the cash boxes that had held the stolen monies.

[10]     Secondly, in the period between the aggravated robbery and Mr McMaster’s arrest on 12 December 2006, Mr McMaster bought a car for $10,000.  He paid in cash, in $100 notes.

[11]     Thirdly, between the time of the robbery and the trial, Mr McMaster had changed his appearance somewhat by cutting his long braided hair.  He had also put on weight by the time of the trial.  The significance of this feature is that while witness descriptions of the gunman were typically varied, the balance of the evidence led at trial suggested he was “lean”.

[12]     Fourthly, at the time of the robbery, Mr Kite lived next door to Mr McMaster.  The shotgun used in the crime and a further money box were recovered from Mr Kite’s address on 6 December 2006.

[13]     Mr McMaster denied the offending when he was spoken to but otherwise said nothing to the police.  He did not give evidence at the trial.

Preliminary applications

[14]     Mr Lawry was not trial counsel.  In addition to the grounds in the Notice of Appeal, Mr Lawry has advanced two preliminary applications on Mr McMaster’s behalf. 

[15]     First, an application is made for leave to adduce fresh evidence, in the form of affidavits from Mr Tuau, Mr Kite, and the appellant’s father, John McMaster.

[16]     Secondly, and very belatedly, Mr Lawry made an application to “file a further ground of appeal”, which was then stated as a further three grounds of appeal.  Reduced to essentials, these were that the trial Judge failed to grant an application to abort the trial, and if that was not done, to take appropriate steps to avoid or deflect reference to the appellant having been in prison.

The fresh evidence application

[17]     Mr Tuau and Mr Kite, the co-offenders, now assert that the appellant was not involved in the aggravated robbery.  Further, the appellant’s father provides what is said to be an innocent explanation for his son’s possession of $10,000 in cash in the period following the aggravated robbery.

[18]     As to the co-offenders, Mr Kite pleaded guilty to this and certain other aggravated robberies in October 2006.  He received a sentence of 11 years and eight months imprisonment with a minimum period of two-thirds of that term.  This Court dismissed a sentence appeal in 2007.  Because the appellant’s trial began on 10 July 2008, Mr Kite was compellable in terms of s 73 of the Evidence Act 2006.

[19]     Mr Tuau pleaded guilty prior to the appellant’s trial.  As he was sentenced with the appellant, he was not compellable at the appellant’s trial.  However, Mr Tuau could have given evidence voluntarily and no application was made to adjourn Mr McMaster’s trial until after Mr Tuau’s sentencing.

[20]     Mr Tuau was in fact at the District Court during Mr McMaster’s trial, possibly for the purposes of giving evidence.  Mr McMaster did not waive privilege.  It is possible that Mr Tuau was not called for tactical reasons.  In any event, there is no evidence before the Court as to why he was not called in circumstances where the theory of the case, embodied by the fresh evidence, was put to, and rejected by, Mr Stevens at trial.

[21]     The issue of when potentially helpful evidence of a co-accused is to be treated as fresh for the purposes of an application of this kind was recently considered by this Court in R v Saggers [2008] NZCA 364 at [18]:

(a)If a defendant (A) knows that a co-defendant (B) could give evidence favourable to A and therefore wishes to call B at his trial, A should seek severance of his trial from B’s.

(b)If A elects not to seek severance in those circumstances, he or she cannot be heard to argue on appeal that B’s evidence, which is now available, is “fresh”.

(c)Even where B’s evidence is fresh (in that A did not know of it at the time of the joint trial and could not reasonably have been expected to discover it), this court will examine B’s evidence with real care, being conscious of the risk that a former co-defendant may well give false evidence to assist an appellant (A) safe in the knowledge that he (B) cannot be prosecuted again for the substantive offence or one like it.   

[22]     As a matter of caution, we allowed cross-examination of Mr Tuau and Mr Kite, in order to assess whether their evidence should be admitted.  A record was taken of that cross-examination.  We have to say that neither man was an impressive witness.

[23]     As to the appellant’s father, he said he had decided he would provide the money for his son to buy a car for his 21^st birthday, which was on 23 October 2006.  The source of the funds is however somewhat extraordinary.  It was drawn in cash from four separate ASB  and ANZ bank accounts, in odd denominations at various times.  Mr McMaster said that he asked his son to look after the money until he found a car that he wished to buy, and that his son had got down to a short list of cars by November 2006.  It was deposed that the appellant was given $11,000 from the $11,165 that had been withdrawn.  The appellant’s father said his son was given the money in $100 notes.

[24]     If the appellant’s father’s evidence is correct, it must follow that the appellant was completely aware of the source of the funds.  The appellant’s father could therefore have been called to give evidence to this effect.  The only explanation offered for why this was not done is weak: “the appellant did not live with me.  At the time of his trial, I was not involved in supporting the appellant because he was too ashamed to discuss the matter with me.”

[25]     Again, as a matter of caution we allowed John McMaster to be cross-examined.  His suggestion that this was a planned pattern of events did not accord with our appreciation of the rather makeshift attempt which is advanced to provide a coherent source of the funds.

[26]     The application to adduce further evidence is dismissed.  It falls a long way short of the orthodox tests for further evidence both as to freshness and cogency.  In any event, having heard the witnesses, the panel was unanimously of the view that it did not believe them.

Further grounds of appeal

[27]     The late further grounds of appeal are thoroughly unfortunate.  The original Notice of Appeal was expressed only in bland and unparticularised terms (for instance, the learned Judge erred in summing up, counsel error, and a wrong decision on a question of law).  Then there was the very late attempt to stitch something together with more precision, accompanied by (unsigned) submissions by Mr Hart.  However, in fairness to the accused, we allow the additional grounds.

The directions

The aggravated robbery offence

[28]     The first ground of appeal relates to the aggravated robbery charge only.   The wording of the indictment makes it clear that the appellant was charged under s 235(b): “being together with any other person or persons, robs any person”.  Mr Lawry accepted that the Crown could have relied on the use of the firearm (s 235(c)) but the indictment makes it clear that the feature of the robbery elevating it to an aggravated robbery in this case was “being together with others”.  The s 235(b) offence requires proof that the accused was part of a joint enterprise of robbery by two or more persons, who are physically present at the robbery, who share an intent to rob, and each of whom must play some definite part to accomplish the design: R v Feterika [2007] NZCA 526 at [32]-[33].

[29]     Judge Blackie summed up on the aggravated robbery charge as follows:

[23]     The second charge is one of aggravated robbery.  Much easier to understand aggravated robbery, that is simply to take something, to steal something, with violence or the threat of violence.  Usually in aggravated robbery cases there’s more than one person involved.  There doesn’t have to be.  In this case though there was more than one person involved the Crown say, and there were threats of violence, the threat coming from the production of the gun.

[24]     So fairly straight forward, the threat to take something, offering violence, one or two persons doing so.  And I suppose you could say that this case is the classic aggravated robbery of someone with a gun accompanied by others holding up some – a bank albeit an ATM machine, grabbing the cash, and taking off.  Each person playing a different role.  According to the Crown, one person was the gunman who pointed the gun at the security guards, the second person grabbed the cash, and the third person took off in the car or was the getaway driver.  The Crown also suggested there were other people involved further down the line who had other cars to do swap overs and things like that.  But basically your focus will be on what happened outside that chemist shop in Dawson Road at this particular time of day, on the 20^th November 2006.

[30]     Significantly, Judge Blackie went on to say:

[33]     What you have to be satisfied is, are you satisfied beyond reasonable doubt that Phillip McMaster also took part with Nathan Stevens, Joshua Kite and Rima Tuau in the aggravated robbery.  Rima Tuau you’ll remember was not on the scene, not alleged to have been on the scene, at the actual scene of the robbery, but nevertheless its alleged that he was part and parcel of the overall plan.

[31]     It was not altogether easy to understand Mr Lawry’s submissions.  He submits that the direction at [23]-[24] is erroneous, in its suggestion that there does not have to be more than one person involved.  However, [23] is directed at the range of ways an aggravated robbery may be perpetrated, of which s 235(b) was one.  Mr Lawry also seemed to suggest that [33] should have been framed more specifically: for example, that the definite part played by the appellant in accomplishing the design (in Feterika parlance) should have been explicated in the summing up. But we do not think there is anything in this point: the reference to the appellant “taking part” at [33] suffices as a direction to the jury under s 235(b).

Parties direction

[32]     A number of complaints are advanced in relation to the parties direction given by the Crown and the Judge.  Mr Lawry argued that the prosecution, in its opening and closing addresses, erred in failing to make it clear that s 66(2) enunciates a subjective test, on the authority of R v Vaihu [2009] NZCA 111 at [51]: “whether the accused had actual knowledge that the commission of the offence with which each was charged was a probable consequence of prosecution of the common purpose”.

[33]     That submission ignores the following passage from the summing up, in which the Judge clearly instructed the jury that the Crown was required to show that the appellant knew that the unlawful taking of a motor vehicle was a probable consequence of the plan to carry out the robbery:

[31]     So the issues which you’ve got to look at as far as Mr McMaster is concerned are set out in the questions below.  And the questions are, are you satisfied beyond reasonable doubt, and there are four questions.  Firstly that Nathan Stevens, Joshua Kite and Rima Tuau, you remember Rima Tuau he was referred to as – by the name of Crim, had something to do with the overall business, and Phillip McMaster formed a common intention to carry out a robbery.  In other words did they all form – have some sort of agreement to help each other to carry out a robbery.  The second question is that in the carrying out of that purpose Nathan Stevens, Joshua Kite and Rima Tuau took a Subaru Forrester motor vehicle owned by Rajay Maharaj.  The third question is that the taking of the Subaru Forrester was recognised by Phillip McMaster as being a probable consequence of carrying out the robbery in the sense that he knew that there was a real or significant risk that the taking of the vehicle was part and parcel of the intention to commit the robbery.  In other words, to commit the robbery there was a need for a vehicle, and was it recognised by Phillip McMaster as a probable consequence of the intention to carry out the robbery that they would need a vehicle, and indeed there was a significant – a real and significant risk that the taking of the vehicle was part and parcel of the robbery.  To put it the other way round.  And finally, that Phillip McMaster was without an honest belief, however mistaken, that he, Stevens, Kite and Tuau had a legal right to take the vehicle.

(Emphasis added.)

[34]     A concern was also voiced that resort had been had to s 66(2), which this Court has often remarked makes a jury’s task more difficult and confusing rather than the straightforward approach under s 66(1).  See, for example, Vaihu at [59]. The Crown only relied upon s 66(2), however, in relation to the charge of unlawfully taking the motor vehicle. The prosecutor never suggested to the jury, in either his opening or closing address, that s 66(2) applied to the aggravated robbery charge. Reliance on s 66(2) in relation to the unlawful taking charge was obviously appropriate given the fact that the Crown never suggested that the appellant was involved in the physical taking of the vehicle.

[35]     It has to be said that the parties directions in this case were not careful enough.  It would have been preferable for the Judge to have explained to the jury how the appellant could be liable as a party under the various limbs of s 66(1).  At one stage too, the Judge made reference to the robbery, and the roles that the various accused may have played in relation to it, being a probable consequence of the agreement to carry out an unlawful act.  This suggests that the Judge considered that the Crown was relying upon s 66(2) in relation to the aggravated robbery charge when that was not the case at all. 

[36]     However, we are not satisfied that there has been a miscarriage of justice.  This is because this was a case in which there is absolutely no doubt that an aggravated robbery was committed, on the relevant date, in circumstances where the only issue at trial was whether the jury was satisfied that the appellant was the gunman.  The trial was run on that basis.  The jury was plainly satisfied that the appellant was the gunman and that entailed proof of the commission of the offence, albeit that the indictment was framed rather differently.  No concern about this was voiced at trial, given the way the trial was run, and there was no miscarriage of justice.

Failure to abort the trial

[37]     The essence of this point is that it had slipped out in evidence that Mr McMaster had been in prison; this was said to be highly prejudicial; and that the trial should have been aborted. 

[38]     We had some difficulty establishing, at the hearing, precisely what had happened.  Mr Lawry complained that the Judge did not make bench notes.  We were concerned about that, but Mr Lawry is quite wrong; everything was scrupulously recorded.  We now know that because we called for what records there are of the discussion with counsel at the Manukau District Court, and also for a report from the trial Judge.

[39]     The source of the difficulty was that the brother of the accused, during the course of his evidence-in-chief, was asked about the accused’s employment.  He gave the answer: “I don’t know, I think when he came back he came out of jail.”

[40]     Relevantly, for present purposes, what the records show is that the Judge saw counsel in chambers at 4.38 pm on Friday, 11 July 2008 to discuss where the trial then stood.  The Judge commenced the discussion (for which we have the record) by asking whether the Crown case would finish on the Monday.  The answer to that was, “Monday morning”.  The Judge then inquired of Mr Juran (trial counsel) where things stood with the defence.  Mr Juran said it was undecided whether to call evidence, but Mr Juran then said, “I do wish to raise one point and that’s about the evidence of Jonathan McMaster.  I mean, the jury clearly heard the comment about prison sir.”  Mr Juran said he may have an application to make on the Monday morning.  There was something of an exchange between the Judge and counsel, with Mr Juran maintaining that he had had trials aborted because of this sort of remark.  The Judge was firm.  He said that it would not be aborted by him and that Mr Juran would “have to be very persuasive”.  The Judge clearly indicated that whatever happened, the prison comment “would be expunged from the notes of evidence”.  So, at that time no formal application had been made and matters were left on the basis that Mr Juran was going to take instructions.

[41]     At 10.25 am on Monday, 14 July 2008, Mr Juran adopted a somewhat ambivalent stance.  After a discussion of a Court of Appeal decision, Mr Juran is recorded as saying:

Well sir I haven’t found [that case].  It seems to me that Your Honour’s already hinted at the way – the direction would go and so I would then vary my application to say well then I think that we should certainly amend the transcript.

The Judge said: “We can certainly amend the transcript.”  Mr Juran then seemed to change tracks and said, “If it could be noted that the application has been made.”  There was then some discussion of other evidential matters which occupied some little time.

[42]     The Judge then delivered Ruling 1, in these terms:

[1]       At the commencement of the third day of the trial Mr Juran on behalf of the accused submitted that the trial ought to be declared a mistrial on account of the fact that one of the witnesses, indeed the brother of the accused, during the course of his evidence in chief was asked about the accused’s employment.  He gave in the answer, “I don’t know, I think when he came back he came out of jail.”  It is submitted by Mr Juran that that statement would have been prejudicial to the accused, and therefore gave rise to his application.

[2]       However having regard to the pronouncement of the Court of Appeal in the case of R v Grey, a decision relating to s 374 of the Crimes Act 1961, I have declined the application to declare a mistrial.  However I think it is appropriate that the offending line in the transcript be deleted.  The trial will therefore continue.

[43]     We have recited these details because they were not apparent to us until we had an investigation made.  We add that it is common ground that the Judge elected to say nothing to the jury but that the notes of evidence were amended as they appear at page 98 of the Case on Appeal.

[44]     It is apparent enough that the Judge took the line of “least said soonest mended”.  It is not at all uncommon for something inadvertent to slip out in response to a question.  There is then the difficulty of whether to say anything at all, for a direction to the jury to forget particular words runs the risk of giving prominence to what was said.  In such a context, the question is always whether what was said was prejudicial to the extent that the Judge is obliged to discharge the jury and have the trial begin again.

[45]     Mr Lawry’s submission was that “the only course the trial Judge should have followed was to abort the trial.  Nothing could be said to remedy the situation”  (emphasis added).

[46]     We note that under s 8(1) of the Evidence Act a Judge is required to exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect.

[47]     Mr Lawry referred us to R v H [2008] NZCA 368. That was a case where a complainant with respect to sexual offending was cross-examined about letters written by the accused while the accused was in prison. In re-examination the District Court Judge had allowed the letters to be produced, thereby making it clear that the accused had been in prison. This Court said at [26]:

We doubt that any direction was capable of overcoming the damage to the appellant’s case arising from the disclosure that the appellant had served a prison sentence or sentences … we have no doubt at all that those references would have compromised the defence case.

[48]     R v H is a completely different kind of case.  There the letters were produced to show familiarity and intimacy between the accused and the complainant.  But they were also full of details about prison life.  If they were to go in for the purpose to which they were directed, very heavy editing would have been required.

[49]     We also note the recent decisions of this Court in R v Milligan [2009] NZCA 344 (inadvertent references to Mongrel Mob affiliations not as such to give rise to a mistrial); and, more importantly, as to the fundamental principle, R v Thompson [2006] 2 NZLR 577 (SC) at [16]:

Whether to discharge the jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial judge on the particular facts.  An appellate Court will not lightly interfere with the exercise of that discretion.  It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what in light of those circumstances of the case as a whole, is the correct course.

Thompson should have been cited both to the trial Judge and us.  It was not.

[50]     We are nowhere near persuaded that we should interfere in the Judge’s considered exercise of his discretion in this case.  This was one of those minor inadvertencies in evidence in which “least said” is a sound approach, and a minor redaction in the notes of evidence was made.  We do not consider that a jury direction was necessary to remedy any prejudice that might have arisen. 

[51]     These points on appeal are dismissed.

Sentence appeal

[52]     The short point on the sentence appeal is that Mr McMaster’s eight year term of imprisonment is said to be manifestly excessive in light of the sentence imposed upon Mr Stevens.  It is a disparity issue.

[53]     It is not necessary to rehearse the authorities, which are legion in this area.  In one of the longstanding authorities, R v Rameka [1973] 2 NZLR 592 (CA), it was said that the disparity must be unjustifiable and gross: “what has to be shown is that the particular appellant has received too long a sentence” (at 593).

[54]     In this case, Mr Stevens’ sentence is explicable given his more limited role in terms of the enterprise overall, his guilty plea, his remorse and the distinct assistance he provided to the authorities.

[55]     To the extent the Court may consider Mr Stevens’ sentence a lenient response, it remains incumbent on the appellant to demonstrate that his sentence is manifestly excessive.  But in any event, Mr McMaster’s sentence simply involved an orthodox application of the Mako guidelines established by this Court: R v Mako [2002] 2 NZLR 170. There are also no mitigating circumstances beyond those dealt with by the sentencing Judge. We completely agree with the Judge that the probation officer’s recommendation for “intensive supervision” (at [46]) was hopelessly out of line for offending of this kind.

[56]     The sentence appeal is dismissed.

Solicitors:
Crown Law Office, Wellington