R v Smith

[2007] NZCA 400

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/07
CA343/07
[2007] NZCA 400

THE QUEEN

v

KIM BRUCE SMITH

Hearing:29 August 2007

Court:Robertson, Baragwanath and Heath JJ

Counsel:M S Gibson for Appellant

D R La Hood for Crown

Judgment:10 September 2007 at 10 am

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Kim Bruce Smith filed an appeal against the effective sentence of three years’ imprisonment imposed upon him after he pleaded guilty to one charge of being unlawfully in possession of a pistol and one charge of being unlawfully in possession of explosives.  He had also been found guilty of demanding with menaces a boat and stealing the boat.  This term was cumulative upon an effective term of eight years’ imprisonment which had been imposed on him previously.  That other term was reduced to an effective term of 7 years’ imprisonment by this Court in R v Smith [2007] NZCA 219.

[2]       The submissions filed by Mr Gibson also raised issues about the conviction.  The Crown raised no opposition to that and we granted leave to bring this aspect out of time.  We deal with the appeal accordingly.

[3]       The sole issue with regard to conviction is to challenge to the Judge’s ruling that circumstances surrounding the acquisition of the boat which was allegedly stolen by Mr Smith was a collateral issue and inadmissible.  Mr Gibson accepted that, even if the evidence were admissible, he must still demonstrate a miscarriage of justice if the appeal were to be allowed.

[4]       As to sentence, the appeal is on the basis that the combined effective sentence of ten years’ imprisonment was manifestly excessive in the circumstances of the total offending and the Judge in this sentencing had misapplied some factual matters.

Factual circumstances

[5]       Judge D G Harvey, who presided at the trial and imposed the three year sentence of imprisonment, described the background thus:

[3]       Sometime in mid 2004 you went to Mr Gill’s property and despite the submission being made to me that there were no problems on that occasion, you did go to the property when you had been told not to.  You made it clear that you wanted to talk to Mr Ostern and from Mr Gill’s point of view at least, that was a threatening conversation because you did mention, he said, that at the time of that visit you referred to being a Sergeant at Arms of the Outcast Motor Cycle Club.  However, there was no incident and you left.

[4]       On 30 October you returned to that property just before ten o’clock in the evening.  It was clear from the evidence at trial that prior to arriving at that property you had spoken to Mr Gill’s wife and you knew that she was away.  You drove up the drive and as you had done on the previous visit you had a spotlight which you were shining around the area.  You pulled up close to the house.  As you stopped a dog ran over to your vehicle and you told Mr Gill that he either put that dog away or you would shoot it.  You again asked for Jason.  When you were told he was not there, you indicated that you did not believe that because his dogs were there.

[5]       Now despite the urging of your counsel, I accept that during that conversation you produced a handgun and while you were talking to Mr Gill you made it clear to him that you had that handgun, and at one stage you had your hand resting on the top of the vehicle with the pistol in clear view.  I have reviewed the evidence and I am satisfied from the description given by Mr Gill of that weapon and from the actual appearance of that weapon that it was no coincidence that he was able to describe it in a reasonably detailed way.

[6]       Mr Gill tried to tell you that your dispute was not with him but was with Mr Ostern, but you would not be swayed.  You again made reference to your gang connections and the fact that you were Sergeant at Arms, and you asked the question “how it would look if you returned with nothing”.  You then asked Mr Gill “who owned the boat?”  He told you it belonged to a friend and when he indicated that it was worth somewhere in the vicinity of $20,000.00 you indicated “that would do for starters”.  You invited him to help you hook up the boat, but as you began to back your vehicle towards that boat, Mr Gill saw his opportunity and he left the property.  I accept that shortly after that you also left, but you returned a short time later and you were observed by Mr Gill’s partner who by this time had arrived back from Whangarei.  She saw you and an associate hook up that boat and you drove it away.  The boat has never been recovered.

[7]       On 4 November your vehicle was seized by the Police and located hidden inside the spare tyre underneath the vehicle was a .357 Ruger pistol loaded with six rounds of ammunition.  There were two speed loaders, each with six rounds of ammunition and an ammunition belt full of ammunition.  There were other miscellaneous items found, but they have no relevance to this sentencing.

Conviction appeal

[6]       It was common ground at trial and before us that the applicable law with regard to collateral issues is encapsulated in the decision of this Court in R v Accused (CA92/92) [1993] 1 NZLR 553 at 557, more recently summarised in R v Haig (2006) 22 CRNZ 814 at [92].

[7]       They were applications of the principle laid down in Attorney-General v Hitchcock (1847) 1 Ex 91; 154 ER 38, namely that answers given by a witness to questions in cross-examination concerning collateral facts must be treated as final.

[8]       A collateral fact is one that is not a fact in issue nor relevant to a fact in issue.   There were specific exceptions to the rule of non-contradiction on collateral matters (previous inconsistent statements, bias, previous convictions, evidence of reputation for untruthfulness and medical evidence affecting the reliability of the witness’ evidence) but none which apply in this case: R v Accused at 558.  The collateral fact rule was justified on the basis that it is necessary to avoid extended controversies over facts that were not central to the determination of guilt. Such tangential inquiries into collateral issues unjustifiably extend the time and resources expended in litigation.  Here, for reasons given at [14], there is no need to consider the capacity of the common law to depart from the Hitchcock rule and exceptions approach in order to avoid injustice.

[9]       The appellant argued that evidence relating to the alleged illegal purchase of the boat by the complainant had direct relevance to the case and was not a collateral fact.  It was asserted that the circumstances surrounding the purchase of the boat were relevant as to whether the complainant disposed of the boat two weeks prior to the theft.  The circumstances that were argued to be relevant were that:

(a)       the boat was procured from a known gang leader for cash;

(b)       the boat trailer had no registration; and,

(c)       the boat’s serial number was erased. 

[10]     It was argued that these circumstances were of direct relevance to the defence case, namely, that the complainant at the time of the robbery had already disposed of the boat and so the appellant could not have stolen it.

[11]     A Mr Fraser gave evidence that he removed the boat from the complainant’s address two weeks prior to the theft.  He stated that he took the boat to Taipa where the boat was usually stored and, as far as he knew, it had not been returned to the complainant’s address.  The complainant accepted Mr Fraser had taken the boat but said it had come back and was at his home when Mr Smith came looking to extract money from the complainant’s nephew.  In the process, he took the boat.

[12]     We are persuaded that the proposed questions were about collateral facts:

(a)the boat was purchased a few years before the theft and thus the purchase was temporally remote;

(b)no evidence was tendered that suggested the complainant was concerned about the manner of the purchase or that the circumstances surrounding the purchase would have been a motivating factor in the disposal of the boat; and

(c)the circumstances surrounding the purchase had no relevance to the reason for the removal of the boat two weeks prior to the theft.

[13]     The fact that the complainant may have illegally obtained the boat could only be relevant to this case if it provided motivation to make a false complaint and thus went solely to the credibility of the complainant.  As such it was a collateral issue.

Situation under the Evidence Act 2006

[14]     Since 1 August 2007, s 37(1) of the Evidence Act 2006 (the Act), has application.  It provides that a party may not offer evidence about a person’s veracity unless the evidence is “substantially helpful” in assessing that person’s veracity.  Section 4 defines “offer evidence” as including eliciting evidence by cross-examination, thus the “substantially helpful” test governs cross-examination as well as examination in chief.  Under s 37, there is no explicit bar to evidence about veracity that contradicts a witness’s denial of a proposition put to him or her during cross-examination.  Accordingly s 37 effectively replaces the collateral fact rule.

[15]     The “substantially helpful” test must be met before contradictory (collateral) evidence can be offered by the cross-examiner.

[16]     The “substantially helpful test” creates a higher threshold than mere relevance.  Section 7(3) of the Act provides that:

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.

[17]     In deciding whether or not the evidence offered is substantially helpful, the Court may consider the following (s 37(3)):

(a)lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):

(b)that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:

(c)       any previous inconsistent statements made by the person:

(d)       bias on the part of the person:

(e)       a motive on the part of the person to be untruthful.

[18]     Additionally, the party who called the witness whose veracity is being attacked could still mount an objection to the contradictory evidence on the basis of s 8(1)(b) which provides:

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—

…

(b) needlessly prolong the proceeding.

[19]     The objection, which mirrors the justification for the former collateral fact rule, would be that the tangential inquiry into the validity of the proposition that was denied by the witness would “needlessly prolong the proceedings”.

[20]     The combination of the “substantially helpful test” and the s 8(1)(b) requirement means that often in practice there will be little, if any, difference between the Act and the common law. 

[21]     The evidence surrounding the circumstances of the purchase of the boat would not be admissible under the Act.  The evidence is not substantially helpful in assessing the complainant’s veracity.  Evidence of being involved in a shady purchase of the boat does not provide a motive to lie about the disposal of the boat.  The purchase was a long time ago and the complainant appeared quite happy to use the boat during the intervening period.  There is no evidence of a catalyst for disposal relating to the purchase of the boat.  The evidence indicating that the complainant was willing to purchase a stolen boat does not indicate that the complainant would be willing to fabricate a story about the theft of the boat. 

Outcome

[22]     The evidence surrounding the purchase of the boat was a collateral fact that went to credibility only and as such was properly excluded by the Judge under the common law and would now be excluded under the Act.

Sentence Appeal

[23]     Mr Gibson argued that the Judge, in imposing a three year cumulative sentence, had taken into account aggravating factors which were not present that had distorted the overall culpability.

Aggravating factors

[24]     The Judge had found that the offending was premeditated whereas Mr Gibson submitted that, when the factual circumstances were taken as a whole Mr Smith (who was owed money by the complainant’s nephew Mr Ostern) had not unreasonably called at the home and then returned a little later. 

[25]     We acknowledge that there can be degrees and intensities of premeditation.   However, the Judge was entitled to conclude that particularly the second visit was not a mere detour while Mr Smith was in Northland on some extraneous matter, but rather a positive act for taking the boat and a determined move to assert control over it.  We find no error in the Judge’s assessment of the facts.

[26]     Secondly, the Judge noted the presence and presentation of the pistol.  Mr Gibson detailed the discrepancy between the description of the firearm given by the complainant in evidence and what he had earlier said to the police. 

[27]     The Judge had heard all the evidence and it was open to him to conclude that the firearm was present.  Mr Gibson’s thesis was that the jury’s “not guilty” verdict on an alternative count of aggravated robbery was consistent only with the jury not being satisfied that Mr Smith was armed with the pistol. He based this on the argument that the presence of a firearm was the only material difference with the charge of demanding with menaces arising out of the same circumstances on which he was found guilty.

[28]     We are not satisfied that is the case.  As Mr La Hood noted, and is clear from the summing up, the jury was told that they could only convict on the more serious charge if they were satisfied that the second visit was a continuation of the first because the pistol was produced on the first but not the second.  That was an assessment of the facts which the Judge was entitled to make which did not conflict with the jury’s verdict.

[29]     Thirdly, the Judge was well able to conclude there was a gang connotation. The complainant’s nephew (who was being sought) had previously belonged to the Outcasts Motorcycle Gang and the appellant made clear that he was Sergeant at Arms for the Outcasts.  There was ample evidence for the Judge to conclude that gang background was a relevant factor.

[30]     We accordingly find no error in the Judge’s approach to aggravation.

Overall seriousness

[31]     Judge Harvey was of the view that the circumstances of the offending upon which he had to sentence could have justified a sentence of as much as five years’ imprisonment with cumulative sentences being imposed for the each of the offences.  Because of the pre-existing sentence, Judge Dawson imposed concurrent sentences in respect of all this offending but they were cumulative on the seven year sentence.

Totality

[32]     The offending for which Mr Smith was serving the seven years’ imprisonment was quite separate from that which was before the District Court.

[33]     Although ten years is a substantial sentence, the fact is that this appellant has made himself an outlaw.  As early as 1990 he was sentenced to four years and nine months’ imprisonment in Australia for aggravated sexual assault and deprivation of liberty. 

[34]     The offending which had been dealt with previously by this Court included conspiracy to defeat the course of justice, wilfully attempting to defeat the course of justice, unlawful possession of firearms and explosives as well as possession of class A and class B drugs.

[35]     The pre-existing sentence included offending which occurred while Mr Smith was on bail.  In fact after the bail had been revoked on a Crown appeal, Mr Smith went into hiding for more than six months and further offending took place.

[36]     When the totality of Mr Smith’s history, attitude and approach is assessed alongside this continuing catalogue of serious offending, it cannot be said that the overall sentence of ten years was outside the discretion properly available to the District Court Judge.  We decline to intervene.

Result

[37]     The appeals against both conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington