R v W HC Wellington CRI 2009-085-224

[2009] NZHC 2381

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-085-224

QUEEN

v

W

Hearing:         20 November 2009

Counsel:         M A O'Donoghue for the Crown

E Hall for the Accused

Judgment:      26 November 2009

JUDGMENT OF MILLER J

[1]      Mr W   faces trial on two counts of aggravated robbery.   Before me are applications by the Crown for an order that evidence of the finding of an imitation firearm concealed in a sock is admissible at his trial, and by the defence for a discharge under s 347.

Background

[2]      For purposes of these applications it is not in dispute that the New World Supermarket  at  Silverstream  was  robbed  on  22  November  2008,  nor  that  the Kilbirnie Post Shop was robbed on 2 December 2008, in both cases by two offenders

who wore balaclavas and were armed with offensive weapons.   The question that

R V W HC WN CRI 2009-085-224  26 November 2009

motivates the present applications is whether Mr W   was one of the robbers or a party to the robberies.  Mr W   is the only accused, the Crown apparently having accepted that it cannot prove the identities of the co-offenders.

[3]      No witness specifically identifies Mr W  .  The Crown’s case rests upon circumstantial evidence, in particular text messages, connecting Mr W   to the robberies.  The evidence is said to include the imitation firearm, although it was not used in either robbery.

[4]      The narrative begins at 12.45 hours on 22 November 2008, when a white Mazda registration RQ4992 was stolen from North City Plaza.  Texts attributed to Mr W   have him arranging the theft of a car from North City Plaza at that time. He gave instructions that “Komar” was to drive the car;   Benjamin Te Autu, also known as Komar, was later convicted of unlawfully taking the vehicle a few minutes after these texts were sent.  Subsequent texts appear to have Mr W   reporting that he had a stolen car and was going to do a job, and instructing another person to meet them at Silverstream.   At 17.52 hours a text was sent from the same cellphone, polling from the Stokes Valley cell site.

[5]      At 21.24 hours the aggravated robbery was committed.  One of the men had a firearm.   The eyewitnesses described two men wearing grey balaclavas and dark hoodies.  One of the men was seen to be Polynesian, over 6 feet tall, with long hair, while the other was shorter.   CCTV footage clearly shows home-made grey balaclavas.  Two men wearing balaclavas were seen to get into the Mazda and leave the scene in the direction of Stokes Valley.  Mr W  ’s cellphone was polling at Stokes Valley at about the same time.

[6]      The following day, a white four door car was noticed at Rintoul Grove, Stokes Valley.  On 25 November Mongrel Mob members were seen to remove items from the car.  (Mr W   is said to be associated with that gang.)  On 26 November the police were called by someone who suspected the car had been stolen.   They located a North City Shopping Centre parking notice in its footwell.   The parking notice bore Mr W  ’s fingerprint.

[7]      On 1 December  a white Toyota station  wagon  registration EDC879  was stolen from Melling Railway Station.   On 2 December Mr W   received texts indicating that the sender wanted a “legal” or “safe” car “before we proceed”.  At

13.42 hours on 2 December he received a text.  His phone was polling at a Kilbirnie cell site at the time.   At 13.45 hours the Post Shop was robbed by two disguised robbers, one with a firearm and the other a knife.  Eyewitnesses say that the robbers were wearing identical grey balaclavas and dark long-sleeved tops.  Descriptions of their size vary, with most witnesses describing them as large.  CCTV footage shows them wearing home-made grey balaclavas.   Their voices were described as Polynesian.

[8]      A white station wagon with tinted windows was seen parked in an alleyway. It was then seen speeding north along Childers Terrace and overtaking heading towards the Mt Victoria tunnel.  The registration was not obtained.  At 14.36 hours Mr W  ’s cellphone was polling from a cell site in Courtenay Place, where he received a text asking “you fullas alright”.  The Toyota was located some days later in Pirie Street.

[9]      On 13 December a search warrant was executed at Mr W  ’s mother’s address in Porirua.  There the police found a dark beanie with eye holes cut out and two pieces of grey cloth.   In the boot of his partner’s Subaru Legacy, which was parked in the driveway at the address, the police found an imitation firearm in a black sock, a grey sweatshirt with both sleeves cut off, a cut grey sleeve, and a TAB receipt in a wallet with other documents associated with Mr W  .

[10]     When interviewed,  Mr  W   admitted  that  he knew  the New  World  in Silverstream but denied having been to Kilbirnie on 2 December or at any time in recent years.  He also admitted that the clothes were his.  The Crown’s case is that the sleeves from his sweatshirt had been used to make the balaclavas, which have not been recovered.

[11]     On 19 December a search warrant was executed at the home of Mr W  ’s partner.  There the police seized a second grey hooded sweat top with both arms cut off.  In texts exchanged with his partner about the garment, Mr W   checked that

the police had taken the one without sleeves, and on learning that it was he asserted that anyone might have put it there.

The 347 application

[12]     I deal with the 347 application first, because in my opinion it does not rest upon the admissibility of the evidence about the imitation firearm.

[13]     The question is whether as a matter of law a properly directed jury could reasonably convict:  Parris v Attorney-General [2004] 1 NZLR 519. The jury would have to be instructed that it could not convict unless satisfied beyond reasonable doubt that Mr W was identified as one of the robbers or a party to the robberies. The Crown would have to show that, as a party, he did something to assist the robbers. To the extent that the Crown case rests upon visual identification evidence, as defined, an identification warning would have to be given.

[14]     Ms Hall submitted that there is insufficient evidence that Mr W   was involved in either offence.

[15]     So far as the first robbery is concerned, the evidence does tend to prove that Mr W   was engaged in a criminal enterprise, that he arranged or was involved in the theft of the Mazda, that he was in the stolen car at some point, that he was in the vicinity of Stokes Valley at the time of the robbery, that the car was dumped there, and that he was in possession of clothing that might have supplied the balaclavas. Taken together, the evidence might properly lead the jury to conclude that Mr W   was one of the robbers or at least a party to that robbery.

[16]     The Crown’s case in relation to the Kilbirnie robbery is significantly weaker. There is no evidence that Mr W   arranged the theft of the Toyota, and texts that he received on the morning of 2 December suggest that associates were looking for a legal car so the Crown’s case requires that the jury accept there was a last-minute change of plan.  His cellphone polled in the vicinity of the robbery just three minutes before it occurred, but there is no evidence otherwise placing him at the scene or in the getaway car.   The Crown’s case that he did something to assist the robbers

focuses upon the grey balaclavas.   There is strong evidence that home-made balaclavas were used, and the question is whether the jury might infer that they were taken from a  garment subsequently found in  Mr W  ’s possession.   The two garments subsequently seized link the two robberies.

[17]     I gave the parties leave to file additional submissions regarding the clothing. The Crown arranged for the garments and the sleeves/fabric to be examined by the ESR.   The Crown’s case now is that the jury might reasonably accept that the balaclavas worn in both robberies were fashioned from either the left sleeve of the sweatshirt located in the boot of the Subaru or the two sleeves cut from the hoodie located at Mr W  ’s partner’s home.  Those conclusions appear to be open on the material before me, despite Ms Hall’s submissions to the contrary.  That being so, I accept that there is, by a slender margin, evidence on which the jury might properly conclude that Mr W   was a party to the two robberies.

[18]     The s 347 application is dismissed.

Admissibility of the imitation firearm

[19]     The Crown accepts that the firearm found in the boot in the Subaru is not the weapon or imitation weapon that was used in the robberies.  It is an imitation antique pistol, quite  different  from  the  long barrelled  weapon,  probably a  shotgun,  that appears to have been used at Kilbirnie and the witnesses’ descriptions (the weapon was not captured on CCTV) of the weapon used at Silverstream.

[20]     The Crown’s case rather is that Mr W   was in possession of a robbery kit, including the imitation firearm and the black beanie.  Mr O’Donoghue highlighted the way in which the pistol was concealed in a sock and its location in the boot of the Subaru, in which was also found the sleeveless grey sweatshirt.  He submitted that the evidence is admissible either as direct evidence that Mr W   was involved in the robberies or as propensity evidence.

[21]     Ms Hall responded that the evidence is not probative and such value that it might have is outweighed by its prejudicial effect.

[22]     I accept Ms Hall’s submissions.  The difficulty with the Crown’s case in this respect is highlighted by the beanie.   The Crown contends that it was part of a robbery kit, yet although it was ready made for the purpose of disguise, Mr W   allegedly went to the trouble of dismantling two sweatshirts specifically for the robberies.   If he had a kit, in other words, he chose not to use it.   Nor were the firearms  and  balaclavas  that  were  actually  used  returned  to  his  “kit”  after  the offences.   The evidence of the beanie and the imitation firearm accordingly goes only to show that he had a propensity to commit robberies and might have used these items in a future crime.   I do not find the evidence sufficiently probative of such propensity for purposes of s 43 of the Evidence Act, and any probative value that it has is outweighed by its unfairly prejudicial effect on Mr W  .  The evidence of the imitation firearm and the black beanie is inadmissible.

Miller J

Solicitors:

Crown Solicitor’s Office, Wellington for the Crown