R v Wilson

[2007] NZCA 184

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA198/06 [2007] NZCA 184

THE QUEEN

v

RIKKI AARON CHARLES WILSON

Hearing:         28 February 2007

Court:            Chambers, O’Regan and Ellen France JJ Counsel:      A N Isac for Appellant

A M Powell for Crown

Judgment:      9 May 2007         at 10 am

JUDGMENT OF THE COURT

A        An extension of time for filing the appeal is granted.

BThe appeal against conviction is allowed.  The convictions are quashed and a retrial is ordered.

R V WILSON CA CA198/06  9 May 2007

CAn order is made that the reasons for judgment are not to be published in  the  news  media  or  on  the  internet  or  in  any  publicly  accessible database until completion of the new trial.  Publication in a law report or law digest is, however, permitted.

REASONS

O’Regan and Ellen France JJ  [1] Chambers J (dissenting)  [35]

O’REGAN AND ELLEN FRANCE J

(Given by Ellen France J)

Introduction

[1]      The appellant was convicted after trial in the District Court of three counts of burglary.   Prior to trial, he had pleaded guilty to a further count of burglary in relation to a property at 8 Aspiring Avenue, Palmerston North.

[2]      The trial judge, Judge N R Dawson, sentenced the appellant to concurrent terms of three and a half years imprisonment on each of the three burglaries on which the appellant had been tried.   That sentence of three and a half years was concurrent on a sentence of two years and nine months imprisonment imposed on the appellant on 26 May 2005 for two counts of burglary including the Aspiring Avenue burglary, one count of unlawful possession of a firearm (three months concurrent) and one count of possession of cannabis oil (one month concurrent).  The sentences were cumulative on an effective sentence of six and a half  years imprisonment imposed on 22 September 2000 in relation to charges of wounding with intent to cause grievous bodily harm and kidnapping.   (The appellant had been released on parole on 23 October 2003 in relation to the latter charges and was then recalled following his further offending on parole.)

[3]      The appellant appeals against conviction and sentence.   As the notice of appeal was filed late, the appellant also seeks an extension of time for filing the appeal.

[4]      The  members  of  the  Court  have  determined  under  s  398(1)  of  the Crimes Act 1961 that it is convenient that separate judgments be issued by members of the Court.

Factual background

[5]      The   incidents   giving   rise   to   the   charges   all   took   place   on   the night of 2 December 2004.   Four properties were involved:   8 Aspiring Avenue;

143 Milson Line;  3  Clearview  Drive;  and  15  Clearview  Drive.    All  of  these properties are in Milson.  That is the Palmerston North suburb in which the appellant resided.  The house at 8 Aspiring Avenue is about two or three blocks away from the other three addresses, which are all in very close proximity to each other.

[6]      The burglary at 8 Aspiring Avenue took place some time between 11.30 pm on 2 December and 7 am on 3 December.   Entry was gained through a kitchen window, the residents of the property being at home.   The items taken  were a cordless phone, a handbag containing a wallet, credit cards, make-up, tobacco, a pager and two cellphones.  The goods were all taken from the kitchen.  Items from this burglary were recovered at 30 Campbell Street.  That is the address of a friend of the appellant’s, Theresa Heap.  The appellant said he took the items there.

[7]      The burglary at 143 Milson Line took place between 6.45 pm and 10.45 pm on 2 December.  Entry was gained through a bedroom window, the residents of the property being away.  Jewellery, glasses, a cellphone and medals were taken from the master bedroom.  These items were recovered at 30 Campbell Street.  At trial, both the appellant and Ms Heap said that an ex-boyfriend of Ms Heap’s had been responsible for the theft of these items.

[8]      Turning then to 3 Clearview Drive, the burglary of this property took place between 10 pm and 11 pm on 2 December.  This time entry was gained through a

garage door.  The residents were at home.  Items were taken from a vehicle in the garage, and included loose change, two pairs of sunglasses, a purse and a driver’s licence.

[9]      Finally, the burglary at 15 Clearview Drive took place prior to 10.15 pm on

2 December.    Entry was  unsuccessfully attempted  through  a  bathroom  window. The entry being unsuccessful, no property was taken.  The residents of this property were at home.

[10]     In a pretrial ruling, Judge L H Atkins QC ruled that on a similar fact basis the evidence about the Aspiring Avenue burglary could be considered with respect to the other three burglaries and that the evidence of the 143 Milson Line burglary could be considered with respect to the Clearview Drive burglaries.  There is no challenge to that ruling.

[11]     At trial, the Crown called evidence about each of the burglaries including that at 8 Aspiring Avenue.   The appellant challenges the scope of the evidence led in relation to the Aspiring Avenue burglary on appeal.

Issues on appeal

[12]     The conviction appeal raises three issues:

(a)       The   effect   of   admission   of   evidence   about   the   burglary   at

8 Aspiring Avenue to which the appellant pleaded guilty;

(b)       The adequacy of the directions on similar fact evidence; and

(c)       The adequacy of the tripartite direction on the effect of the appellant’s testimony.

[13]     The  sentence  appeal  raises  an  issue  about  the  totality  of  the  sentences imposed on the appellant.

[14]     The evidence about the Aspiring Avenue burglary to which the appellant objects is in three categories.  First, the Crown led evidence from the security video installed by the complainant outside her home.  The video shows the appellant trying a locked door about eight minutes after the complainant had gone through that door and then to bed.  The appellant is seen trying car doors, looking through windows, and “casing” the property.

[15]     Second, the Crown, through Detective Constable Rankin, led evidence of the police interview with the appellant.  The interview dealt with the 8 Aspiring Avenue burglary, and the burglaries of 15 Clearview Drive and 143 Milson Line.   The appellant’s   complaint   relates   to   the   part   of   the   interview   relating   to   the

8 Aspiring Avenue burglary.  The jury heard that, in the course of the interview, the appellant initially said he had visited the house with a friend for drinks.  He was then told he had been captured on the video footage from the security camera.  After that, the appellant said he did not remember what he had done and said he did not know where the Mastercard and Visa cards were.  Ultimately, the appellant pleaded guilty to this offending.   This statement to the police, particularly the appellant’s initial denial, was the subject of extensive cross-examination at trial.

[16]     Finally, police led evidence from the homeowner at 8 Aspiring Avenue.  She spoke  about  matters  such  as  losing  her  cellphone  with  all  its  pre-set  numbers. The jury also had photographs of the items stolen from this property.

[17]     We  consider  that  the  evidence  from  the  security  video  and  from  the homeowner was admissible.   While this evidence was admitted on a similar fact basis, the evidence as to where the appellant was that night (the security video) and the activities in which he was engaging (the homeowner’s evidence) are pieces of circumstantial evidence the jury was entitled to take into account in assessing the fact in issue, namely who had committed the burglaries.  In terms of that evidence, it is relevant that the appellant’s counsel at trial (not his counsel on appeal) did not object to the admission of this evidence and, moreover, took the opportunity to cross-examine on some aspects of the evidence now challenged.

[18]     However, as the Crown accepted on appeal, the evidence of the appellant’s initial denial of the Aspiring Avenue burglary was not probative of any matter in issue at trial.  This evidence only proved that the appellant had lied and should not have been led.  Chambers J appears to suggest that, while not normally admissible, it was rightly admissible because the offence the appellant lied about was proximate in time to those for which he stood trial.  It does not seem to us that this proximity is a reason  to  depart  from  the  principle  that  this  evidence  would  not  usually  be admissible.   However, if the appellant put his veracity in issue by relying on his guilty plea in defending the other counts, that would provide a strong basis for an application to adduce evidence of the circumstances of the initial denial.

[19]     The issue then is whether the admission has led to a miscarriage of justice. The Crown argues that it has not but we consider that the way in which the appellant’s initial denial became such a focus at the trial means that the admission of this evidence did give rise to a miscarriage.   As we have said, the appellant was cross-examined extensively in what was a short trial about his initial denial although in his evidence in chief he did not seek to make anything of his guilty plea to the Aspiring Avenue burglary.

[20]     At about 4 pm, on the first day of trial, the prosecutor suggested to the appellant: “This is what you do isn’t it [appellant], you wait until you are proven to be wrong before  you tell the truth.”   The appellant was then asked a series of questions, the suggestion being that the appellant was trying to see if he could “get away” with it and, only once he was confronted with the video, did he admit the offending.       Matters    deteriorated    quickly   in   the    first    five    minutes    of cross-examination.  The appellant was stopped by the Judge and was removed from the court.  Cross-examination recommenced at 4.35 pm and continued on the same theme, namely, the appellant’s initial denial for about a further 15 minutes.   An orthodox lies direction was given in summing up.

[21]     The result was an unnecessary and prejudicial focus on the appellant’s initial denial and the resultant need for a lies direction.  We consider that the prejudicial effect of what occurred gave rise to a miscarriage.

[22]     The appellant’s complaint is that the Judge in his directions on similar fact conflated the two questions the jury had to answer.   Mr Isac says the jury should have been directed, first, are you satisfied that there is a pattern between the three offences such that they were committed by the same person?  Second, if so, are you satisfied that there is a link between each of the burglaries in the three counts with that at 8 Aspiring Avenue?  Overall, the appellant argues that the directions did not adequately deal with the issue of whether the jury could be satisfied that the same person was responsible for all four burglaries to the requisite standard of proof.

[23]     We agree with the Crown that the directions given were sufficient given the nature of the case.  As we have said, although dealt with on a similar fact basis, the evidence in issue is better characterised as circumstantial.  Against that background, it is relevant that the Judge gave an orthodox direction to the jury on the drawing of inferences.  Judge Dawson explained that this was a case involving circumstantial evidence, not direct evidence and in that context the Judge explained about the cumulative effect of circumstantial evidence.

[24]    Next, and importantly, the Judge directed the jury about the dangers of propensity reasoning.

[25]     Judge Dawson then explained that the Crown case largely revolved around the four burglaries.  He referred to the guilty plea and continued:

Again, the Crown properly pointed out that before you, the Jury, can use the evidence   of   [the   appellant’s]   admission   of   being   the   burglar   of

8 Aspiring Avenue, as evidence with respect to the three counts in this trial,

you must be sure or satisfied of two things; one, was each burglary in each count committed by the same person who burgled 8 Aspiring Avenue.  Two, are you satisfied that there is a link with each of the burglaries in the three counts with the burglary of 8 Aspiring Avenue.   These are decisions that you, the Jury, must make.

[26]     Judge Dawson then explained the Crown and defence cases.  In that context, the  Judge  recorded  the  Crown  case  that,  first,  the  appellant  was  the  burglar  at

8 Aspiring Avenue.    Second,  all  three  burglaries  were  committed  on  the  same

evening between the hours of 6.45 pm and 10.45 pm with the Aspiring Avenue burglary at a house some 700 – 800 metres away occurring at 11.40 pm.  Third, all burglaries were in Milson and the appellant lived in Milson.   Fourth, the three burglaries are all neighbouring properties which can be accessed between each other by jumping fences.  Finally, the property taken from 8 Aspiring Avenue was found at Ms Heap’s address alongside property stolen from 143 Milson Line.

[27]     The Judge reminded the jury that the defence said that the evidence of the conviction of the appellant for the burglary at 8 Aspiring Avenue could only help the jury  with   the   decision   as   to   whether   he   also   committed   the   burglary   at

143 Milson Line.  The Judge continued:

The defence say if you cannot make that connection, then you cannot go on to make the connection with the Aspiring Avenue burglary with two burglaries at Clearview Road.

Whether you agree with this conclusion, is a matter for you, the Jury to decide.  It is not a matter that I will be directing you upon.

[28]     Finally, the Judge in summing up made the point that the jury was to treat the counts separately with a caution against using evidence relevant to one count when considering others.

[29]     In the circumstances of this case, no more was necessary.

The tripartite direction

[30]     In summing up, the Judge emphasised that the onus was on the Crown to prove the elements of the charge beyond reasonable doubt.  Judge Dawson said there was no requirement or expectation that the appellant give evidence.  The tripartite direction was in this form:

The fact that [the appellant] did, [give evidence], does not mean that he has taken on himself the responsibility of proving himself innocent.  The onus of guilt remains on the Crown, but where there is defence evidence, essentially there are three possible conclusions that can come from it.

1.You may think that the defence evidence is credible and reliable and a convincing answer to the Crown’s evidence.  If that is your view, then of course your verdict will be not guilty.

2.You may think that although it is not entirely convincing, it leaves you unsure of just what the real position was.   In other words, it raises a reasonable doubt in your minds.  If that is so, then it follows from what I have said, that your verdict will be not guilty.

3.You may think that the defence evidence, or part of it, is entirely unconvincing and reject it as unworthy of belief. If that is your view, you should be careful not to jump from that conclusion to an automatic conclusion of guilt, or even regard that as that as adding to the case against him.  You should go back to the rest of the evidence and ask yourselves whether, on the basis of that evidence, you are satisfied of guilt.

The Crown must prove all of the necessary elements of the charge beyond reasonable doubt.   Proof beyond reasonable doubt means simply that you must be sure, you must be satisfied of guilt before you can convict.  If you are not so sure, not satisfied, then you should acquit.  But if you are sure, you are satisfied, then equally you should convict.

[31]     Not  surprisingly,  this  part  of  the  appeal  was  not  particularly pressed  by

Mr Isac and we see no merit in it.  The direction given was in the orthodox form.

Sentence appeal

[32]     Our conclusion makes it unnecessary to consider the appeal against sentence. We record though that, while the sentence appeal was not formally abandoned, Mr Isac accepted there was merit in the Crown submission that overall the term was not manifestly excessive.  Mr Powell in his helpful submissions made the point that the only effective change in the current final sentence was the addition of seven months imprisonment for the three burglaries that are the subject of this appeal. There is nothing in the submission that that addition has resulted in a sentence which is manifestly excessive.

Application for extension of time

[33]     The notice of appeal was filed some four months and three weeks out of time. The delay is explicable and, in the circumstances, it is appropriate to grant the application for extension of time.

Result

[34]     The  application  for  extension  of  time  is  granted.  The  appeal  against conviction is allowed.   The convictions are quashed and a retrial is ordered.   An order is made that the reasons for judgment are not to be published in the news media or on the internet or in any publicly accessible database until completion of the new trial.  Publication in a law report or law digest is, however, permitted.

CHAMBERS J

[35]     I would dismiss the appeal.

[36]     I agree with the majority on issues (b) and (c) (at [12]), on which they would have dismissed the appeal.  But I disagree with the majority on issue (a), on which they have allowed the appeal.   Issue (a) is concerned with the admissibility of evidence  about  the  Aspiring Avenue burglary to  which  the  appellant  ultimately pleaded guilty.

[37] The majority agree that evidence about the Aspiring Avenue burglary is relevant and admissible in part. But they draw the line at that part of the appellant’s statement where he was asked about the Aspiring Avenue burglary. That part of the statement is said to be “not probative of any matter in issue at trial” and accordingly inadmissible: at [18]. I do not accept that view. In my view, the fact the appellant lied about the Aspiring Avenue burglary is relevant to his credibility when assessing his denials of responsibility for the other three burglaries. I accept that evidence as to lies with respect to discrete offending would not normally be admissible, but the evidence relating to the Aspiring Avenue burglary does not come in as evidence of discrete offending. Evidence relating to the Aspiring Avenue burglary is circumstantial evidence bolstering the Crown’s case on the other three burglaries.

[38]     The majority’s ruling will lead to the jury receiving a misleading picture of the appellant’s interview with Detective Constable Rankin.   To comply with the majority’s view, everything the appellant said about the Aspiring Avenue burglary will have to be excised.  The jury will be mystified by that: they will ask themselves

why the detective did not ask the appellant about that burglary, when he was asking them about the others and when the police had the video footage of the appellant entering the Aspiring Avenue property. Further, later questions and answers about the other burglaries take colour from the earlier part of the interview dealing with Aspiring Avenue and from the appellant’s having been caught out on his denial of responsibility for the Aspiring Avenue burglary.

[39]     In addition, the jury will hear the appellant’s denials of guilt with respect to the other burglaries.  They will learn that he pleaded guilty to the Aspiring Avenue burglary.   They may draw the inference (whether expressly suggested by defence counsel or not) that this is a man who nods when he is guilty, with the consequence that any denial of guilt should perhaps be given credence.  Such an inference would not be available if the jury knew all the details of what he had said to the detective.

[40]     It is significant, in my view, that neither Judge Atkins QC nor Judge Dawson nor defence trial counsel sought to draw any distinction between this piece of Aspiring Avenue evidence and the rest of the Aspiring Avenue evidence.   In my respectful view, they were right to draw no distinction.   To rule inadmissible this part of the appellant’s police statement will deprive the Crown of important evidence relating  to   the   appellant’s   credibility  as   to   the  events   on   the   evening   of

2 December 2004 and hence to his guilt and will lead inevitably to the jury being given a misleading picture of the appellant’s police interview.

Solicitors:

Fitzherbert Rowe Lawyers, Palmerston North for Appellant

Crown Law Office, Wellington