Robertson v Police

[2014] NZHC 1665

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-29
CRI 2014-485-31

CRI 2014-485-32 [2014] NZHC 1665

KEEGAN ROBERTSON Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	15 July 2014
Counsel:	G R Fulton for Appellant J A Eng for Respondent
Judgment:	15 July 2014

ORAL JUDGMENT OF RONALD YOUNG J

Introduction

[1]      Mr Robertson appeals against his conviction in the District Court that in February 2014 he dishonestly received a Mitsubishi motor vehicle and secondly, about two weeks later, that he resisted Constable Whitley while the Constable was acting in the execution of his duty.  Mr Robertson pleaded not guilty to both charges in the District Court.  After hearing the evidence the Judge convicted him of both charges.  There was an associated bail issue which is also the subject of an appeal

which I will deal with at the end of this judgment on the appeal against conviction.

ROBERTSON v NZ POLICE [2014] NZHC 1665 [15 July 2014]

[2]      The grounds of appeal are:

(a)       on the basis of the evidence the Judge heard that he must have had a reasonable doubt about the receiving charge;

(b)when the Judge rejected certain evidence he wrongly drew inferences against the evidence of the appellant;

(c)       the Judge did not give adequate reasons for rejecting the evidence of the appellant;

(d)the conduct of trial counsel and the fact there may be new relevant evidence.

Background facts

[3]      The trial itself revolved around credibility.   If the Judge accepted that the appellant’s evidence could reasonably be true, then he was entitled to be acquitted. If the Judge rejected the appellant’s evidence but accepted the prosecution witnesses, particularly the two men who said they were sold the relevant car by the appellant, then the appellant was likely to be convicted.

[4]      On the morning 13 February Ms Sidal discovered that her Mitsubishi vehicle had disappeared from outside her address.   It had been last seen at 7 o’clock the previous night and there seemed no doubt it was stolen.

[5]      Mr Garrett gave evidence that he had purchased Ms Sidal’s vehicle for $200 from the appellant on 13 February.  He had gone to his flatmate’s mother’s address with  his  flatmate,  Mr Leyland  to  see  Mr Robertson  and  to  purchase  the  car. Mr Garrett said he noted the ignition had been “popped”.  Mr Robertson claimed that it was his grandfather’s car and that the ignition had been popped because the keys had been lost.  Before purchase Mr Garrett had checked to see if the car was reported stolen and had been reassured that it had not.  Later that morning the vehicle was registered by Mr Garrett in his name.

[6]      Mr Leyland gave evidence supporting Mr Garrett’s evidence.   Mrs Leyland (Mr Leyland’s  mother)  also  gave  evidence  that  Mr Robertson  had  come  to  her address that morning asking to talk to her son about a car that her son may wish to purchase.

[7]      Each  of  these  three  witnesses  were  challenged  both  as  to  their  general credibility in some cases putting their criminal past to them and their specific credibility relating to the alleged transaction with the appellant.

[8]      On 26 February Mr Robertson was arrested by the police for receiving the vehicle.  When the police arrived at his residence he was told he was under arrest. Two constables present said that Mr Robertson pulled away, abused them, refused to co-operate and that there was then a struggle between the officers and the appellant.

[9]      Mr Robertson gave evidence at trial.  He denied that he had sold any vehicle to Mr Garrett or that he had been at Mrs Leyland’s house that morning.  He said that Mr Leyland and Mr Garrett had a motive to try and make trouble for him and that he had been set up by Mr Leyland.

[10]     There was evidence from Mr Roberston’s mother and others about whether or not it was possible for the appellant to have left his address during the morning of the alleged offending and to have had time to commit the offence.  Witnesses gave evidence on behalf of Mr Robertson about seeing him at home on the morning of

7 February at about 7.00 a.m. and then after 10.00 a.m.  This was intended to be a form of alibi.

District Court decision

[11]     The Judge in his decision began by describing the onus and standard of proof and the elements the police and had to prove to establish both charges.  He detailed both the evidence-in-chief and cross-examination of all of the witnesses.

[12]     The Judge concluded that Mr Leyland, Mr Garrett and Mrs Leyland were truthful and accurate witnesses.  He rejected the evidence of Mr Robertson that he had never left the address and had identified how, even if the Judge accepted the

witnesses called by the appellant, there was ample opportunity for him to have left the house, sold the car and returned.

[13]     I turn  now,  therefore,  to  each  of  the  appeal  grounds.    First,  insufficient evidence.

Discussion

Insufficient evidence

[14]     As I observed at the beginning of this judgment, this was a credibility case. Here, the Judge expressly rejected the evidence of the appellant and expressly accepted the evidence of the prosecution witnesses, Mr Garrett, Mr Leyland and Mrs Leyland.  Having done so a conviction was virtually inevitable.  The appellant was selling a car which was stolen the night before for $200 which had had the ignition “popped”.  There was ample evidence, therefore, once the evidence of the prosecution witnesses was accepted to justify a conviction.  I, therefore, reject this ground of appeal.

Inappropriate inferences

[15]     The second ground of appeal relates to the question of whether or not the Judge drew inappropriate inferences once he rejected certain evidence.  This ground of appeal in part merges with the first ground of appeal relating to sufficiency of evidence.  It revolves around challenges to timing.  The appellant appears to suggest that given the evidence from the appellant’s witnesses, there was really insufficient time for him to have gone to Mrs Leyland’s house, conducted the transaction and returned home.

[16]     It is clear from reading the evidence-in-chief and cross-examination, that few of the witnesses had a precise idea of the timing of the events in this case.  But what is clear as the Judge identified is that there was significant time in the early morning of 13 February (at least between 7.00 a.m. and 10.00 a.m.) for the appellant to have taken the vehicle to Mrs Leyland’s house, conducted a negotiation, sold the car and return to his house.  I, therefore, reject this ground of appeal.

Reasons for rejecting evidence

[17]     Thirdly, reasons for rejecting the evidence.  I am also satisfied that the Judge adequately set out his reasons for accepting and rejecting the evidence he did in his judgment.    As  the  Judge  noted,  the  evidence  of  Mrs Leyland,  Mr Leyland  and Mr Garrett was mutually supportive.   All gave evidence that the appellant was at Mrs Leyland’s house that morning.  The Judge, as he was entitled to, found them to be credible witnesses.  Given that conclusion it was inevitable that he would reject the evidence of the appellant that he was not at Mrs Leyland’s house that morning.  I am satisfied that the Judge made no error nor was there any failure to give adequate reasons for rejecting Mr Robertson’s evidence in these circumstances.

New evidence and counsel failure

[18]     As I understand this submission, the appellant says that his trial counsel (not the appellant’s counsel), should have cross examined Mr Leyland and Mr Garrett about the time the sale of the vehicle took place.  If he had done so then he may have been able to undermine Mr Garrett and Mr Leyland’s credibility given the evidence of the appellant’s witnesses as to timing.

[19]     If counsel wishes to raise an allegation that trial counsel’s failure has resulted in a miscarriage of justice then there is a proper process to do so set out in the Criminal Procedure Act 2011.  That had not been done at the end of the first hearing of this appeal.   I adjourned the hearing to allow counsel further opportunity to consider this appeal point. After instructions, this appeal ground has not pursued.

[20]     Further, the appellant’s evidence in any event did not provide him with any form of alibi.   The appellant’s witnesses did not cover a period between approximately 7.00 a.m. to 10.00 a.m.  Several of the witnesses in any event were hardly precise about the time.  There was a significant period of time during which the appellant had the opportunity to conduct the very business the Crown said he had.  Whether Mr Garrett and Mr Leyland may in some way have contradicted this evidence is simply speculative.

[21]     As to the new evidence, this consisted of a newspaper report of a conviction of one of the witnesses for the Crown.  That evidence could hardly be considered “new”.

[22]     For  the  reasons  given,  therefore,  the  appeal  against  conviction  on  the receiving charge is dismissed.   I received no particular submissions on the other charge.  Again this case involved a conclusion as to credibility by the Judge.  The Judge was entitled to reach the conclusion that he did.  I heard no submissions to the contrary.  The appeal against the resisting police charge must also fail for the reasons I have given.

Bail appeal

[23]     I turn now to the refusal to grant electronic bail.  Mr Robertson at the time of the hearing of this case and at the time of his conviction was on a 24 hour curfew. He had been charged with serious sexual offending involving complainants between

12 and 15 years of age.  After his conviction on the receiving charge, committed while he had been on a 24 hour curfew, he applied for electronic bail.  The Judge in the District Court considered that application at the end of March 2014.

[24]     The  Judge  concluded  that  having  considered  both  this  conviction  and Mr Robertson’s previous convictions including eight offences committed while he was  subject  to  bail,  that  electronically  monitored  bail  would  not  likely  restrict Mr Robinson from further offending.

[25]     Secondly, The Judge considered the seriousness of the allegations against him.  Thirdly, the Judge considered the fact that Mr Robertson had a significant list of previous convictions incurred since he was 17 years of age.   And finally the Judged noted that the appellant had breaches of community work, supervision and further violence charges in 2011.  The Judge said, therefore, electronic bail would not,  as  I  have  said,  restrict  further  offending.     The  Judge  concluded  that Mr Robertson’s past behaviour was indicative of someone who paid little regard to sentences and little regard to bail when it suited him.

[26]     I am satisfied that the Judge was correct to refuse electronic bail for the reasons he gave.  I have now confirmed Mr Robertson’s conviction while subject to a

24 hour curfew.  I agree with the Judge’s assessment that Mr Robertson is unlikely to be restrained by any form of bail.

[27]     The fact that he is in custody and is a relatively young man facing serious charges, should I suggest be a reason for the Crown to give this trial priority.   It would not be right given Mr Robertson’s youth for there to be any substantial delay in his trial.  I accept and understand that the District Court in Wellington is busy.  I simply underline the importance of this matter being heard as soon as reasonably possible.  There are of course obviously also imperatives relating to complainants in sexual cases which will no doubt be given priority.

[28]     For the reasons given, the appeal against refusal to grant electronic bail is also dismissed.

Ronald Young J

Solicitors:

G R Fulton, Barrister, Lower Hutt

Luke Cunningham & Clere, Crown Solicitors, Wellington