R v Morgan CA170/06

[2006] NZCA 477

IN THE COURT OF APPEAL OF NEW ZEALAND

CA170/06

THE QUEEN

v

THOMAS JAMES CHARLES MORGAN

Hearing:         26 October 2006

Court:            Robertson, John Hansen and Goddard JJ Appearances: J C Gwilliam for Applicant

K B F Hastie for Crown

Judgment:      1 November 2006         at 11 am

JUDGMENT OF THE COURT

A        Leave to appeal out of time is granted.

B        The appeals against both conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

[1]      Following a trial before Judge Mackintosh and  a jury in the Wellington

District  Court  the  applicant  was  convicted  of  one  count  of  burglary.    He  was

R V MORGAN CA CA170/06  1 November 2006

sentenced to two and a half years’ imprisonment, and ordered to pay reparation of

$7,326.

[2]      Before trial he was discharged, pursuant to s 347 of the Crimes Act 1961, on a second count of burglary, and during trial discharged under the same provision on a related count of arson.  He was acquitted on a third count of burglary.

[3]      The applicant seeks leave to appeal against conviction and sentence out of time.  In relation to the appeal against conviction two grounds are advanced.  The first is that a mistrial should have been declared because of a prejudicial comment made  by a  prosecution  witness  in  evidence in  chief.    The  second  is  that  fresh evidence is available relating to the credibility of the same witness.  The sentence is said to be manifestly excessive.

Background

[4]      Between 5 and 16 May 2005 three homes near each other in a Wellington suburb were burgled.  Entry was gained through a window at the rear of the house before a ransacking took place.  Items including cash, jewellery and electrical goods were taken.  At one of the addresses there was evidence a small fire had been started, but contained before it spread.  No fingerprints were found at any of the addresses, but a cigarette butt was secured from the kitchen floor at one address.  DNA on that was found to be five million times more likely to have originated from the applicant than any other male.

[5]      On 5 July 2005 the Police executed a search warrant at the address of a Ms Connelly, the applicant’s ex girlfriend and mother of his infant son.  Items stolen from two of the addresses were located in two bags seized from the basement of the address.  The next day a search warrant was executed at the applicant’s address but no items of interest were found.   When arrested the applicant declined to make a statement but asserted there was no stolen property at Ms Connelly’s address and that he had not been doing any burglaries.

[6]      At  trial  his  defence  was  a  complete  denial.    He  did  not  give  evidence. However, in the course of Ms Connelly’s evidence, the witness stated the applicant had only just been released from jail.  The Judge directed the jury to disregard the comment.

[7]      Subsequent to the trial a Mr Muir has come forward and has stated in an affidavit that he knew both the applicant and Ms Connelly.  He said that on a couple of occasions between April and June 2005 he drove Ms Connelly to one of the addresses.  At the time Ms Connelly was living in the same area and was not living with  the  applicant.    Mr  Muir  could  add  nothing  else  of  relevance  as  to  why Ms Connelly was dropped off at that address.

Submissions

[8]      Mr  Gwilliam  submitted  that  the  comment  by  Ms Connelly  was  highly prejudicial.   He accepted it was probably unexpected from the Crown’s point of view, but submitted it could not be rectified by an appropriate direction to the jury. He further submitted there was a real danger, or suspicion, that the applicant was prejudiced by the disclosure.

[9]      In relation to the fresh evidence, Mr Gwilliam submitted that at trial there was  no  evidence  available  to  the  applicant  to  show  that  Ms  Connelly had  any connection with the burgled address.  He said it was clear that the DNA evidence found there was critical to the Crown’s case which was shown by the fact the jury acquitted the applicant of the other burglary at a nearby address, despite some goods being located at Ms Connelly's address.

[10]     Mr Gwilliam submitted that there was now credible evidence of a connection between Ms Connelly and the burgled address.  He submitted that her credibility was a critical component of the prosecution case and formed the basis of an explanation for how the applicant’s DNA was found there.  Essentially, it is a submission that Ms Connelly was one of the offenders and planted the cigarette butt at the address to implicate the applicant.

[11]     Ms Hastie submitted that the evidence that the applicant had recently been in prison did not give rise to irreparable prejudice so that a mistrial should have been declared.   She stressed that this was not a situation where the prosecutor had improperly introduced prejudicial material.   She said the evidence came without warning, and the answer was directly relevant to the question asked.  It was treated sensibly at the time as nothing more was said and counsel moved on.

[12]     The  Crown  submitted  that  the  Judge’s  direction  did  not  compound  any perceived prejudice.  The direction was in proper form, and the jury was clearly told they must ignore the comment and must not use it against the applicant.  Ms Hastie submitted  that  such  a  strong  direction  would  have  the  effect  of  curing  any illegitimate prejudice that may have arisen.

[13]     The Crown accepted that the evidence of Mr Muir was fresh, but submitted the critical issue was whether it might reasonably have led to a finding of not guilty if called at trial.  The Crown submitted it would not.

[14]     Ms  Hastie  submitted  that,  at  its  highest,  Mr  Muir’s  evidence  raised  a possibility that Ms Connelly was involved in the burglary.  She submitted it did not exclude the applicant and, in any event, given the lack of particularity in the dates referred to in the affidavit, her involvement could have been for any number of reasons, legitimate or otherwise (eg by casing the property or in the execution of the burglary).

[15]     Given the DNA evidence, Ms Hastie submitted the defence would have had to raise as a reasonable possibility in the jury’s mind that Ms Connelly deliberately set out to set up the applicant as the offender for  the burglary by collecting a discarded cigarette butt and leaving it at the address.  Ms Hastie submitted that this appeared to have been the view of the applicant at the time from comments he made to the writer of the alcohol and drug assessment report, and also the submissions made at sentencing.  She submitted it was unlikely that Mr Muir’s evidence would have been sufficient to root such a machiavellian scheme in the jury’s mind that it might reasonably have led to a finding of not guilty.

Discussion

[16]     The Crown did not oppose the granting of leave to appeal out of time and leave is granted.

[17]     We are satisfied that the Crown did not lead the evidence that the applicant had just been released from prison.  The witness’s answer was directly relevant to the question asked of her.  It was treated sensibly at the time and nothing was said and counsel moved on.

[18]     We are further satisfied that the Judge’s direction did not compound any perceived prejudice.   Indeed, if such a direction had not been given, we have no doubt the applicant would have complained of that.   The direction given was in standard form, with the jury being clearly told they must ignore the comment and must not use it in any way against the applicant.  We have no doubt such a direction would have the effect of curing any illegitimate prejudice that may have arisen: R v Thompson [2006] 2 NZLR 589 (SC).

[19]     This ground must fail.

[20]     While we accept that Mr Muir’s evidence is fresh and appears credible, it is vague as to detail.  There is no explanation as to why the witness would be dropped off at the address when she lived nearby.  The evidence does not say whether or not the witness asked to be dropped off at the address, or whether the deponent saw her enter the address.  Nor does it say if he simply dropped her off in the vicinity.  At its highest, the witness drove Ms Connelly to the address on a couple of occasions between April and June 2005.

[21]     The Crown correctly identified the crucial issue as whether this evidence might reasonably have led to a finding of not guilty if called at trial.

[22]     It is obvious that the DNA evidence found on the cigarette butt at the scene that clearly belonged to the applicant was powerful evidence.   The applicant now takes the position that if he had been able to connect Ms Connelly to the address of

the burglary she could have been cross examined further, effectively suggesting that she planted the cigarette butt at the scene deliberately to incriminate the applicant.  It is said that this was done either to cover up for the fact that she and others committed the burglary, or that she wished to get even with the applicant for some reason.

[23]     It seems to be common ground that, in the course of the burglary, a fire was started.   It strikes us as incredible to suggest that, if Ms Connelly had intended to frame the applicant, she would have used an item that would have inevitably been destroyed  in  any subsequent  fire.    We  do  not  consider  this  proposition  can  be explained away by simply saying that the fire could have been accidental, which was supported by the decision in relation to the arson charge.

[24]     With  due  respect  to  Mr  Gwilliam’s  submissions,  in  our  view  the  Muir evidence, at best, raises the possibility that Ms Connelly was somehow involved in the burglary.  It does not exclude the applicant.  Given the lack of particularity of dates, the  involvement  could  have been  for  a  number  of  reasons,  legitimate  or otherwise.

[25]     In any event, if Ms Connelly wished to implicate the applicant she could have planted more damning evidence at the scene which was more closely associated with the applicant.  What is being suggested is a level of sophistication and understanding of DNA evidence, leaving aside the contradiction created by the fire, that we are not satisfied Ms Connelly would have.  There is certainly no evidence to support it.

[26]     It is clear from a number of sources that the applicant’s view all along was that Ms Connelly had framed him.  She was asked at the end of cross examination whether she was covering up for other people.  It was also put to her that she put the blame on the applicant because she had fallen out with him.  Both propositions were denied and nothing was put forward  to  justify this  alleged  falling out  with  the applicant.  His view that Ms Connelly framed him is reinforced by his comment to the report writer who prepared the Alcohol and Drug Assessment Report.  At 87 it is recorded that he told the report writer that he believed Ms Connelly may have planted evidence to set him up for this conviction.  To a limited degree this is also

supported by the submission made at sentence recorded in the Judge’s Sentencing

Notes at [11].

[27]     It is quite clear that Ms Connelly, like the applicant, lived in the vicinity of the burgled property, and it is common ground the stolen items were found at her address.  Those two matters raise at least the possibility that she was either involved in the burglary, or knew of it.  However, she denied those possibilities.

[28]     If Mr Muir’s evidence had been available at trial the defence could have put it to Ms Connelly.   If denied it could have led to doubts about her credibility in respect of those denials.  But raising doubts about involvement is far from raising as a reasonable possibility that she engineered the applicant’s conviction by planting the cigarette butt.   There is simply no evidence to support that as a reasonable possibility.   There is no evidence to suggest that Ms Connelly had some grudge against the applicant.

[29]     We agree with the Crown submission that a more plausible alternative is that Ms Connelly concealed her association with the address because she may have been involved in some way.  The second ground also fails.

[30]     The appeal against conviction is dismissed.

Sentence Appeal

[31]     Notwithstanding that counsel was reminded of this Court’s ability to increase sentence, the applicant persisted in his sentence appeal.  This case must be on the cusp as to whether or not this Court should exercise its discretion to increase the sentence.

[32]     The  applicant  is  a  recidivist  burglar  with  21  previous  convictions  for burglary, and 21 for receiving.   He has numerous convictions for a wide range of other offences.   All forms of Court sanctions and attempts at rehabilitation have failed  in   the  past.     As   a   full   Bench   of   the   High   Court   made   clear   in Senior v Police (2000) 18 CRNZ 340 at 27:

In the case of a recidivist burglar, the length of sentence will largely depend on the number of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors.

[33]     In R v Morgan CA311/97 25 September 1997, a sentence of two  years’ imprisonment for burglary was upheld but said to be "at the uppermost end of the range available to the sentencing Judge" following a plea of guilty.  The applicant had 20 previous burglary convictions, the last being in 1983.  This may be contrasted with this applicant who has a significant number of convictions for receiving as well as burglary.  These offences have been persistent from 1990 to the present, so his offending background must be regarded as worse than in Morgan and there was no plea of guilty.

[34]     There were significant aggravating features.  The burglary was of a dwelling place to which considerable damage had been done.  The applicant was at the time subject to a sentence imposed in respect of his most recent conviction of burglary. There was little by way of mitigation.

[35]     Both  the  starting  point  and  the  final  sentence  were  clearly  within  the available range.  Indeed, in our view, the sentence was lenient.  The appeal against sentence is also dismissed.

Solicitors

J. Gwilliam & Co, Wellington, for Applicant

Crown Law Office, Wellington