R v Potter

[2007] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

CA450/06 [2007] NZCA 156

THE QUEEN

v

JASON LESLIE POTTER

Hearing:         14 March 2007

Court:            Robertson, Baragwanath and Venning JJ Counsel:      M J Lillico for Appellant

M K Thomas for Crown

Judgment:      29 March 2007

Reasons:        26 April 2007 at 11 am

JUDGMENT OF THE COURT

A        The appeal is allowed and appellant’s convictions are quashed.

B        A new trial is ordered.

REASONS OF THE COURT

(Given by Baragwanath J)

R V POTTER CA CA450/06  29 March 2007

Introduction

[1]      Jason Leslie Potter appealed against his conviction on counts of kidnapping, wounding and threatening to kill on the basis that there was a miscarriage of justice because of a trial ruling and the formulation of the onus of proof in the Judge’s summing up.

[2]      By  judgment  of  29  March  2007  we  allowed  the  appeal,  quashed  the convictions and ordered a new trial.  We now provide reasons.

[3]      In evidence-in-chief on the appellant’s third trial on counts of kidnapping, wounding and threatening to kill, a Crown witness recounted a factual scenario involving the appellant which  contained the  elements of  a charge of blackmail. In cross-examination defence counsel sought to elicit the fact that at his first trial the appellant had been acquitted on a blackmail charge relating to that incident.  Crown counsel objected to the question, relying on a ruling at his second trial that whether there was conviction or acquittal at an earlier trial was irrelevant to the jury’s assessment of the credibility of the witness.   The Judge at the third trial made a similar ruling. So the third jury was informed only of the allegation and not of the previous acquittal on the count relying upon it.  The major issue on this appeal is whether that ruling was correct.

[4]      There is a further contention that the Judge erred in his formulation of the onus of proof.

Background

The complainant’s evidence

[5]      The complainant gave evidence that the appellant had struck his face with a baseball bat. The appellant had then said that he had split up with his girlfriend and that people including the complainant owed him money.  The appellant then stabbed a knife into the top of the complainant’s foot, leaving it in place for about five minutes.  He then stabbed the side of the foot, penetrating it with such force as to

enter the carpet.   He then stabbed the complainant’s knee, leaving the knife in position for a period he thought was about 20 minutes.  Having eventually removed the knife from the complainant’s knee the appellant demanded that the complainant obtain for him a sum of $4,000 by ringing his mother.   The appellant said that if he did not get that money he would threaten the complainant’s family.

The defence claim

[6]      The defence claim was that the complainant was actuated by malice against the appellant who had been grossly intoxicated and sustained his injuries after he had left the complainant’s flat.

The summing up point

[7]      In summing up MacKenzie J directed the jury:

The question for you, I suggest, is: is there a sufficient possibility that [the complainant] suffered the knife wounds after he left Mr Potter’s flat to raise in your minds a reasonable doubt that Mr Potter inflicted them?

[8]      Elsewhere the judge had provided meticulous directions as to onus of proof. But this part of the  direction is unhappily expressed.  It could contain an implication that the jury should start with the assumption that the appellant inflicted the wounds and then move on to consider whether a reasonable doubt was raised.

[9]      We find it unnecessary to consider whether, as the Crown submitted, the other directions were so clear and emphatic that this misdirection would not have misled the jury as the appeal succeeds on the other ground.

The exclusion of cross-examination as to prior acquittal of blackmail

The controlling issue

[10]     All Judges were agreed that a fundamental issue in this case was whether, once the Crown had led evidence about the facts which had been the subject of the charge of blackmail, the Court was in error in denying the defence the opportunity to

cross-examine and establish that the appellant had been charged with and acquitted of blackmail based on that evidence.

[11]     The Crown contended that the complainant was a reliable witness whereas the defence said that he was neither credible nor reliable. The ultimate issue is whether the proposed cross-examination should have been admitted as relevant to the credibility of the complainant.

[12]     While the Evidence Act 2006 has not yet come into force, it summarises the common law principles:

7         Fundamental principle that relevant evidence admissible

(1)      All relevant evidence is admissible in a proceeding except evidence that is—

(a)      inadmissible under a rule of law; or

(b)      excluded under a rule of law.

(2)       Evidence that is not relevant is not admissible in a proceeding.

(3)       Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

8         General exclusion

(1)      In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a)      have an unfairly prejudicial effect on the proceeding; or

(b)      needlessly prolong the proceeding.

…

[13]     Relevant evidence is admissible in proceedings unless there are compelling policy reasons for its exclusion; evidence that is not relevant is inadmissible.  In the case of relevant evidence sought to be introduced by an appellant the Court will be slow to disallow it on policy grounds.  In this case (whether rightly or wrongly) the jury heard about the alleged demands.

Crown submissions

[14]     The  Crown’s  contention  was  that,  although  in  some  cases  evidence  of acquittal may need to be admitted, this was not one of them as it did not follow from the acquittal that the jury’s verdict on the blackmail charge had involved a credibility finding against the complainant.  Counsel argued:

(a)      in the first trial the complainant’s evidence as to when the threats against his family were made in relation to making demands were far more vague than it was in the third trial;

(b)accordingly the jury might simply have not been satisfied beyond a reasonable doubt  that  the  threats  against  the  complainant’s  family were made for the purpose of getting the complainant to attempt to obtain the money as required to constitute blackmail; and

(c)as the jury was unable to agree on any of the remaining counts in the indictment, the result is inconsistent with the jury necessarily having found against the complainant on credibility.

[15]     Mr Thomas therefore submitted that it was open to MacKenzie J at the third trial, as to Gendall J at the second trial, to consider that evidence as to the fact of the appellant’s acquittal at the first trial on a charge not before the current jury could be of no assistance to it.  For such evidence to have been of value would require some detailed consideration of why the verdict might have been returned.   That would have required consideration of the evidence before the first jury, an exercise that would be of no assistance to the current jury in determining the charges before it.  He submitted that the Judge’s decision is not plainly wrong because the decision was within the proper ambit of his discretion.

Discussion

[16]     None of us agreed with the conclusions of Gendall and MacKenzie JJ that the fact of the acquittal was simply irrelevant.    While in England the so-called rule in

Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587 (CA) required that a prior conviction must be disregarded as irrelevant to proof in a later civil case that the defendant had committed the offence, in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961 this Court rejected that rule. It held that the certificate of conviction affords admissible, although not conclusive, evidence of guilt of the crime alleged. Although acquittal is distinctly less cogent evidence of innocence than conviction is of guilt, its potential relevance is obvious – as tending to show that the complaint’s evidence of the alleged blackmail at least required careful scrutiny.

[17]     In  the  sphere  of  propensity  evidence  the  Judge-made  principles,  now endorsed by Parliament, require a finely nuanced judgment responding to the exigencies of the particular case: R v Mokaraka [2002] 1 NZLR 793 (CA). That is clearly so in the present context.

[18]     In this case the Crown presented to the jury the complainant’s evidence of blackmail as appearing to possess the same sharp edge as in the first trial where he had faced a charge of committing that crime.   Such evidence was likely to affect the jury’s perception of the appellant and his credibility in relation to other counts.  Yet in a very practical sense some at least of that edge had been removed by the acquittal at the first trial.

[19]     It is true that the acquittal was not a proclamation of innocence.  But it by no means follows that the acquittal was irrelevant.  Evidence of the acquittal, coupled with an appropriate direction, would have signified to the jury that in considering the credibility of the complainant it should take the fact of the acquittal into account as a factor – by itself by no means decisive – in appraising his credibility.

[20]     It was in fact unnecessary for the Crown to call that evidence at all and it could simply have been blue pencilled from the brief.  Given the previous acquittal that evidence could fairly be described as irrelevant.

[21]     Alternatively, the Judge could have directed the jury when that evidence was led and again in his final direction that that topic had been dealt with at a previous trial and they should disregard it when considering the complainant’s credibility.

Such a course is appropriate where, as in R v Kingi CA66/06 21 March 2006, the evidence the subject of the previous acquittal cannot be excluded without making the Crown case incoherent.

[22]     A further option was to give limited leave to cross-examine simply to elicit the fact of the acquittal.

[23]     All Judges are agreed that, in the circumstances of this case, the conviction was not safe because no action was taken to respond to the unnecessary admissibility of the evidence about the blackmail incident and thus the appeal had to be allowed.

Supplementary comments

[24]     The admissibility of the evidence of blackmail, having been raised only as a subsidiary point, two Judges considered that the case was to be determined on the primary basis presented by counsel, that is as to what was required once evidence of the facts which could constitute blackmail was led by the prosecution.  One of the Judges  is  of  the  view  that,  since  there  must  be  a  new  trial,  this  Court  should determine (for the assistance of the Judge at the next trial) whether the blackmail evidence had been properly admitted.   The other two Judges consider the matter should be avoided entirely.  The third Judge’s views are as follows.

[25]     If the evidence of the blackmail was inadmissible because of the acquittal on the count based upon it, it was irrelevant and should not have been led. While defence counsel did not object to its admissibility and had simply sought to cross- examine,  determination  of  his  entitlement  to  do  so  requires  analysis  of  the materiality of the evidence in chief.  If it was inadmissible it was the responsibility of the trial judge to exclude it even in the absence of defence objection:  Stirland v DPP [1944] AC 315 (HL). It is only if the evidence of blackmail was admissible because it was relevant that there arises the question on the answer to which we are agreed, namely whether defence counsel should have been allowed the right in cross- examination to challenge it by referring to the fact of acquittal.

[26]     In R v Davis [1982] 1 NZLR 584 at 591 this Court accepted the proposition:

That the appellant must be taken to be entirely innocent of that charge on which he has been acquitted.

[27]     In Canada Lamer J, delivering the majority decision of the Supreme Court in

Grdic v R (1985) 19 DLR (4th) 385 at 389, said:

There are not different kinds of acquittals and, on that point, I share the view that “As a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence”: see Martin L Friedland, Double Jeopardy (1969) Clarendon Press, Oxford, p.129, also Chitty, i, 648; R v Plummer [1902] 2 K.B. 339 at p.349. To reach behind the acquittal, to qualify it, is, in effect, to introduce the verdict of “not proven”, which is not, has never been and should not be part of our law.

[28]     The case of Plummer was referred  to  particularly for  the  observation  of

Bruce J at 349 where he stated:

I think it is a very dangerous principle to adopt to regard a verdict of not guilty as not fully establishing the  innocence of the  person  to  whom it relates.

[29]     The decision of the Court for the Consideration of Crown Cases Reserved was that on a trial of three alleged co-conspirators, if one pleads  guilty and  is convicted and the other two are acquitted, the conviction of the one who pleaded guilty is bad and must be set aside.   It is, however, to be noted that a powerful minority in Grdic, including Dickson CJC and Wilson J, rejected the majority’s view that an appellant acquitted on two driving charges could not be convicted of perjury at a further trial when the original evidence was led together with further supporting evidence.

[30]     In   its   Consultation   Paper   No   156   Double   Jeopardy   the   English

Law Commission drew attention to the English tainted acquittals legislation, ss 54-

55 of the Criminal Procedure and Investigation Act 1996, which in the case of perjury  and  like  offences  permits  on  stringent  conditions  the  quashing  of  an acquittal.   In Compensating the Wrongly Convicted (NZLC R49 1998), the New Zealand Law Commission stated:

17Unless set aside on appeal the verdict is, and is seen to be, a public proclamation of the result.  Either the case is proved and the verdict is that of guilty, or the case is not proved and the verdict is that of not guilty.  Issues of innocence, suspicion, and likelihood of guilt are

not distinguished in the verdict and in a very practical sense the appellant is either convicted or cleared.   This makes acquittal equivalent, in practical effect, to a finding of innocence, as the Supreme Court of Canada noted in Grdic v R ….

[31]     The Commission drew attention to the very real distinction between those who are acquitted either because they are innocent or because the Crown case is inadequate, and others who are acquitted by reason of perjury or even interference with witnesses.

[32]     In R v G (K R) (1991) 5 OR (3d) 406 the Court of Appeal for Ontario stated at 409:

[I]t is a well established principle of the criminal law that an acquittal is the equivalent of a finding of innocence.   It must be conclusively assumed, therefore, that the appellant was innocent of the allegations made against him by [a child on whose evidence he had previously been convicted].

The Court of Appeal therefore set that conviction aside following the appellant’s acquittal on later charges of assaulting the complainant’s siblings, at which trial the complainant gave similar fact evidence.

[33]     That decision was cited by this Court in R v Wilson [1997] 2 NZLR 161 at

168.  Similar fact evidence, or as it is more accurately called in s 40 of the Evidence Act propensity evidence, is of course treated by the Courts with especial care.  That is particularly in cases of evidence of a transaction alleged to implicate the appellant for which he was acquitted at a previous hearing.

[34]     The law has, however, found it necessary to admit such evidence in suitable cases in order to do justice.  These include the leading cases of R v Ollis [1900] 2 QB

758; R v Roberts (1992) 16 CRNZ 172; R v Caceres-Moreira [1995] Crim LR 489; and R v Wilson.  In each case the evidence of the circumstances investigated at the first trial was strongly probative of an element of the second trial and could be admitted on the basis that the verdict at the first trial stood.

[35]     The dicta as to “innocence” in Plummer and succeeding cases go too far if they are to be applied for all purposes including entitlement to costs and compensation.  It would be unacceptable for a perjurer or an intimidator to receive

payment on such basis.   These matters were discussed in the Law Commission’s report Costs in Criminal Cases (NZLC R60 2000).  A judgment as to the appropriate response in a particular case cannot be made by rule of thumb and it is essential to examine the particular context.

[36]     R v Ollis and its successors have been confirmed by R v Dignan [2001] 1

NZLR 280 (CA) following R v Z [2000] 2 AC 483 (HL) which was applied in R v

Terry [2005] 1 QB 996 (CA).

[37]     In R v H (1990) 90 Cr App R. 440 (also reported as R v Henri [1990] Crim L R. 51) the appellant faced 13 counts of indecency at initial trial.   He was convicted on seven and the jury disagreed on the remainder.  At his second trial the appellant sought to adduce evidence of the previous acquittals.  His application was declined and he was convicted on the six counts.  On the appeal against conviction Lord Lane CJ delivering the judgment of the Court of Appeal reproduced the following passage from the ruling of the trial Judge at 443:

[H]e wishes to introduce the fact that the defendant was acquitted on counts

1 and 3.  It seems to me, and as I understand it it seems also to both counsel, that if the acquittals were introduced  then  the  disagreements  on the  six counts in issue should also be introduced, for the reason that the jury would not otherwise be given the full picture.   So I ask myself what is the consequence   of   the   jury   being   told   of   the   acquittals   and   of   the disagreements?  It seems to me that it would deflect their attention from the issues before them and the evidence before them, and to speculate on what motivated the previous jury.

[38]     The trial judge then dealt with the various cases that had been cited to him, and concluded:

I think on the special facts of this case that if I told the jury that their task is to deal with those counts before them and those alone and that indeed the prosecution is not alleging the defendant’s guilt in respect of the earlier matters, and if I also tell them that they should not speculate further on the earlier hearing, save where inconsistencies were shown to arise, that the overall interests of justice will be served.

[39]     The Lord Chief Justice continued at 443-444:

[C]ounsel were permitted to cross-examine S, and we imagine C if it was necessary, where inconsistencies did appear between the evidence which had

been given at the earlier trial and the evidence which was being given in the instant proceedings.

[Counsel for the appellant]   submits to us that that ruling of the learned Judge was  wrong.    He  directs  our attention  first  of  all to  a passage  in Archbold Criminal Pleading Evidence and Practice, 43rd  ed., Vol.1, p.325,

4-37, where the matter is summarised by the learned editors in this way:

Reference to previous trial: The mere fact that there has been a previous trial is usually irrelevant and therefore inadmissible on a retrial; but this does not mean that it is never permissible to refer to an earlier trial, for it may well be necessary to do so to establish some relevant fact as, for example, in identifying the occasion on which some particular statement or admission was made.

[40]     The Lord Chief Justice concluded at 445-446:

It seems to us that in a case such as this the judge has a very difficult exercise to perform.  He has to balance the interests of the defendant against the interests of the prosecution; and he has to determine in the light of those considerations what in his judgment would be fair, because like so many problems in the criminal trial, it is fairness rather than any remote, abstruse legal principle which must guide the judge.  Coupled with that fairness, if indeed it is not part of it, is the necessity for the judge to ensure that the jury whom he is assisting do not have their minds clouded by issues which are not the true issues which they have to determine.

We now turn to apply those principles to the questions which the judge in this case had to determine.  If the evidence as to the acquittals on counts 1 and 3 went in, then the learned judge was quite right, and neither counsel seem to have dissented from his view, that the evidence as to the disagreements on all those other counts would have to have gone before the jury.   As the judge rightly indicated, if that had been the case, the danger would be that the jury to whom he was addressing his remarks would have likely been spending their time not in determining what they believed to be the truth in the evidence which they had heard, but they would be deflected from that course by consideration as to what had actually actuated the earlier jury to come to the various conclusions that they did.

In the judgment of this Court the learned judge in this case … came to the right conclusion for the right reasons.  He balanced these matters properly and he came to the conclusion that justice required, fairness required, clarity required, that this evidence should not be adduced before the jury.  For those reasons therefore this application is refused.

[41]     In a comment in [1990] Crim L R at 52-53 Di Birch observed:

The case provides a neat illustration of the principle that the relevance of evidence in law is determined not simply by the dictates of logic, but is affected by other factors such as fairness, and the need to avoid the proliferation of side-issues which may serve to  confuse  the jury.    As  a general rule, acquittals on other charges – even other related charges – are likely to be of insufficient relevance to the proceedings to be admissible.  In

Doosti, also reported at [1985] Crim.L.R. 665, D was prevented from cross- examining a police officer who had given evidence against him at an earlier trial which had resulted in acquittal on the main charge of possession of drugs – a charge similar to that faced in the proceedings.  The purpose of the cross-examination was to show continuing bias against the appellant, but it was held that the line of questioning would not necessarily have shown bias, as there might have been other reasons for the earlier acquittal.

Acquittals may become of sufficient relevance, however, depending on how the trial develops.   In Doosti itself, D lost his shield against cross- examination on his record, and was asked about a conviction for a minor offence of obstruction which had resulted from the earlier trial.  Once this was out, it was held that it would be unfair to prevent D from putting the conviction in its proper context by showing that he had been acquitted on the main charge.  The prosecution were not obliged to bring out D’s character, but once they had done so in order to discredit him he was entitled to investigate the issue whether the previous acquittal said more  about  the police officer’s unreliability than his own … .   In the present case, the prosecution did not seek to cast doubt on any of the previous acquittals. Their only relevance was to the credibility of S, but, as with Doosti, their effect was not necessarily to show that S was lying.

[42]     In other cases the Court of Appeal of England and Wales has found risk of miscarriage of justice by the exclusion of the evidence of acquittals, particularly in cases where they cast doubt  on  the  veracity of  the  police:  R  v  Hay (1983)  77

Cr App R 70; R v Cooke (1987) 84 Cr App R 286; R v Savin [1988] Crim L R 573 at

575.

[43]     In R v Terry the Court of Appeal qualified:

[B]road propositions in R v Hay…  that an acquittal is “conclusive evidence” of innocence of the offence to which it relates and that any evidence in relation  to  it  on  which  the  prosecution  seeks  to  rely  again  in  other proceedings should be disregarded.  An acquittal is not conclusive evidence of innocence unless by that word it is meant not guilty in law of the alleged offence to which it relates.  Nor does it mean that all relevant issues have been resolved in favour of the defendant.  In R v Hay, for example, positive innocence of the arson was not logically an inevitable conclusion to draw from the acquittal. It could have simply been that the jury had been unsure of his guilty in view of the alibi evidence.

[44]     In  an  article  “Attacking  Confessions  with  Past  Police  Embarrassments” [1988] Crim L R  573 at 580 Mr David Wolchover stated:

[W]hilst, obviously, an acquittal can hardly in logic amount to a finding of perjury on the balance of probabilities (at the very least), might it not imply, in a case turning on the honesty of a particular witness, that the tribunal accepted  the  reasonable  possibility  of  the  witness  having  lied,  that  the

tribunal suspected perjury?  On this basis there would seem to be no logical reason why it should not be permissible to argue that because a tribunal in some previous case had not been convinced of the witness’s honesty to the high standard required, the tribunal in the present case ought to be at least equally wary.  On that basis any previous acquittal implying the suspicion of perjury must be at least potentially relevant.

[45] The cases show that in some cases the Courts have treated acquittal at prior trial as tantamount to a verdict of innocence; in others as irrelevant and therefore inadmissible even as going to credibility; in others the evidence will be admitted. As with propensity evidence, the issue is always how in the particular circumstances the interests of justice are best served: see at [17].

[46]     In  this  case,  in  the  opinion  of  the  member  of  this  Court,  there  was  no substantial basis for admission of evidence of the blackmail evidence.   It was not essential to the Crown case and its admission, with consequential need for cross- examination, presented difficulty both for the Judge, in determining the limits of the cross-examination we have agreed should have been allowed and in directing upon it, and for the jury in appraising its significance.  The practical consequences require a judgment that the  evidence of blackmail should not have been  admitted. The wrongful admission of that evidence should be added to the refusal of leave to cross- examine upon it as requiring the verdict to be set aside. The evidence should not be led at the next trial.

Result

[47]     The Crown did not suggest  that  this  is  a  case  for  the  application  of  the proviso.  Accordingly the appeal is allowed and a new trial ordered.

Solicitors:

Sladden Cochrane & Co, Wellington

Crown Law Office, Wellington