Romanov v The Queen
[2018] NZCA 59
•20 March 2018 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA413/2017 [2018] NZCA 59 |
| BETWEEN | RICARDO ROMANOV |
| AND | THE QUEEN |
| Hearing: | 26 February 2018 |
Court: | Gilbert, Simon France and Whata JJ |
Counsel: | J J Corby for Appellant |
Judgment: | 20 March 2018 at 3 pm |
JUDGMENT OF THE COURT
A The appeal against conviction is allowed.
BThe conviction is quashed.
CThere is no order for a retrial.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Mr Romanov was convicted following a jury trial of burglary involving the theft of a valuable motorcycle. He appeals against his conviction on the basis that prejudicial material introduced at trial caused an unfair trial. He also appeals against the sentence of seven years’ imprisonment.[1]
Facts
[1]R v Romanov [2017] NZDC 9091.
For the purposes of the appeal, the facts can be briefly stated. It is alleged that Mr Romanov decided to steal a valuable Ducati motorcycle. There was evidence of him undertaking computer searches to locate the bike, and where the owner lived. One evening, the bike was stolen from its shed. A balaclava left at the scene had DNA on it linked to Mr Romanov. A search of his flat located a key that would start the relatively uncommon bike. The burglary was allegedly carried out by Mr Romanov and an accomplice. The accomplice testified for the Crown. The defence was that the accomplice alone did it and, for reasons of personal animosity, was setting Mr Romanov up.
More relevant to the appeal is Mr Romanov’s past. He has also at times been known by the name Anthony Ricardo Sannd or variations on that. In that persona, he was responsible for the high profile armed theft of a valuable painting from the Auckland Art Gallery. The relevance of this is that Mr Romanov has a past that carries considerable prejudice to someone defending a charge of having meticulously planned and carried out the theft of a valuable bike.
The issues
Aspects of Mr Romanov’s past found their way into the trial. The issue is whether the Judge’s directions to the jury about these pieces of information and their obvious prejudice were sufficient to mitigate the risk to a fair trial. In that regard it has not been suggested the Judge should have done or said more.
When considering the issues, it is necessary to keep in mind there are three topics — time spent in prison as a result of this charge, time spent in prison as a result of past offending, and the use by Mr Romanov of aliases.
Mr Romanov acted for himself. Mr Corby who presents the appeal was initially trial counsel. Mr Romanov dispensed with his services, but Mr Corby then accepted appointment as amicus.[2]
The events
Custodial remand and sentence relating to this charge
[2]This occurred prior to this Court’s decision in Fahey v R [2017] NZCA 596, which rejects such an approach.
The first occasion arose during Mr Romanov’s opening address to the jury at the start of the case. The police had discovered the Ducati keys in Mr Romanov’s bedroom months after his arrest. Mr Romanov at trial pushed the line that the police must have planted these, noting that he had been in prison “the whole time”. This was a reference to the fact he was remanded in custody.
There were other references to his incarceration relating to this charge. The police officer who arrested him said he was transported to where “they can hold prisoners overnight”. Mr Romanov on another occasion asked a police witness to confirm that Mr Romanov had been in custody since his arrest.
Finally, related to this topic, it is necessary to note this trial was a retrial.[3] One of the witnesses Mr Romanov called revealed that Mr Romanov had been sentenced to seven years’ imprisonment following the first trial.
Past prison and aliases
[3]Romanov v R [2016] NZCA 341.
It is convenient to address these topics together. Some background is needed. It would appear that Mr Romanov has at times used three names — Ricardo Romanov, Ricardo Sannd and Ricardo Genovese. When a person is arrested for the first time, they are allocated by police a unique number, known as a PRN. If they subsequently acquire a criminal or traffic offence record, the offending will be gathered under that PRN. Typically, the document will at the top list all known “Aliases”. The alias list may consist of different names, or often just amount to different spellings (or mis-spellings) of the same name — for example here, Sand or Sannd. Mr Romanov has 12 aliases listed on his criminal record.
It was noted earlier that a balaclava was discovered at the burglary scene, and sent to ESR for testing. We are advised that the report from ESR linked the DNA to Ricardo Sannd. We have not seen the report. No steps were taken prior to trial to alert the Court to this issue so a mechanism could be undertaken to avoid introducing the name “Sannd” into the trial.
In the extract shortly to be set out, it is reported to the jury that ESR linked the DNA to Ricardo Sand. Mr Romanov then asks a question about who Ricardo Sannd is and denies it is him. We do not know how serious this line of questioning was intended to be, or whether it was just a lay person’s reaction to some evidence. Certainly, Mr Romanov would have understood the fact that he has also been known as Ricardo Sannd is not something he could ever successfully deny. With that background, we set out extracts from an officer giving evidence about the balaclava.
First, in examination‑in‑chief the officer explains the balaclava was sent to ESR. A preliminary result was obtained, apparently from the DNA database:
Q.Can you tell us about the preliminary identification that you received later in May from a DNA analysis of that exhibit?
A.I was advised through our intelligence section that they had received information that the balaclava had a positive trace of DNA and that it could be linked to our DNA profiling system and that was linked to the name of Ricardo Romanov‑Sand.
Q.And is it as a result of that DNA match or hit, if you like, that further enquiries were initiated?
A.Yes.
It is unclear why it was thought necessary to refer to this preliminary hit, which inferentially suggests that Mr Romanov’s DNA sample is stored in the database. Of course, the jury may not have appreciated the significance of a “preliminary hit”, but we remain unclear as to the purpose of this.
Mr Romanov then questioned the officer. The following exchange occurred:
A.So on the 23rd of May, a few weeks after the event, while working an early shift, I was advised by the Police Intelligence Section via an email that ESR had obtained DNA from exhibit number 13/250, the balaclava, and that the DNA was that of a person profiled by the name of Anthony Ricardo Sand with a prisoner record number – it’s probably not relevant, the rest, but that’s how I came to know about the DNA.
Q. Who is this Anthony Ricardo Sand?
A. Yourself.
Q. I’ve never ever had that name so who is this person?
A.Okay, he’s otherwise known as Romanov but there’s a number of alia – I think there about nine or 10 aliases for this person in our system for different identities.
Q.For this Anthony Ricardo person?
A.Romanov, yes.
Q.He’s got a date of birth of, according to the ESR, 1981?
A.I don’t have the date on me but I have your prison record number and –
THE COURT:
Pause.
There are two aspects of concern here — the reinforcement of a prison record and the revelation that Mr Romanov has nine or 10 aliases. It is true that Mr Romanov queried who Mr Ricardo Sand was, but there was no need for the officer to refer to 10 aliases.
Finally, with this witness, there was an effort made in re‑examination to cure the reference to Prisoner Record Number. Evidence was led from the officer that he was incorrect and the P in PRN stood for person not prisoner. However, at the same time the prosecutor sought to confirm that Ricardo Sand and Ricardo Romanov were the same person. The following occurred:
Q.Mr Romanov also, I suppose, challenged you that he was never known by the name, or he’s not know, never been known by the name of Anthony Ricardo Sand. Can I ask you to have a look at this document.
WITNESS REFERRED TO DOCUMENT
Q.Can I just get you to confirm that that’s an official police document?
A.Yes.
Q.And what is the name at the top of that document?
A.I’m nervous to say things now after last time but it says, well it’s from the Ministry of Justice and it’s a criminal and traffic history.
Q.And so what is the name on the top of that document?
A.Sand – Anthony Ricardo, that’s his name and the name of the document, yep.
Q.When you were earlier giving evidence you referred to a matter you called a prisoner record number. In fact, isn’t it known as a person record number?
A.That is the honest truth, I did not know that, no. We’ve always referred to it as a PRN.
Q.Now that’s the important part. It’s a number, it’s called a PRN within the Police, right?
A.Correct.
Q.And a PRN, if you can confirm, is attached to anyone who’s been processed through the police?
A.Yes, not just been given a ticket but you actually, it’s when you, when you’re arrested you get a PRN, it’s not for everyday dealings.
The document handed to the witness was Mr Romanov’s or Mr Sand’s criminal history. It does not appear to have been provided to the jury so how the mere oral exchange establishes for the jury they are the same person is not clear since the list of aliases is not read out or otherwise detailed.[4] Further, however, given the Crown case was that they are the same person, the introduction in this way of a criminal history carried obvious prejudice.
[4]Leaving to one side what the probative value of the list might be anyway.
The Judge immediately directed the jury in relation to these events:
THE COURT:
Ladies and gentlemen of the jury I need to give you a direction now which I will repeat at the end of the trial. It will not have escaped your notice that prior to the morning adjournment that Constable gave evidence referring to one, the defendant’s prisoner record number and, two, that he had nine or 10 aliases. You’ve now heard evidence from that same officer that it’s not prisoner record number, it’s the PRN which attaches to any person in this country who is arrested. So far as the nine to 10 aliases are concerned, a person can have any number of aliases they like and they may have those aliases for any number of reasons. Accordingly, you should not speculate on the reasons for those aliases and in fact for your purposes, you can put it to one side. Likewise, now that you have heard what the PRN actually stands for, again you need not speculate on how that came to be, and you just put it to one side as irrelevant. I will remind you of this when I sum up at the end of the trial. Thank you.
The next two incidents involve disclosures by witnesses that Mr Romanov had previously been in prison. Evidence from the trial prosecutor has been filed confirming that both these witnesses were instructed shortly before testifying not to mention this fact.
The first witness, a Ms Maureen Bevis, was asked about when Mr Romanov had moved in as a lodger. It was the fifth question to be asked in her evidence, so the instruction to avoid references to prison must have been fresh. Ms Bevis answered:
No I can’t remember. It must’ve been not long after he was released from prison, maybe six months later, I’m not sure.
The Court then immediately directed the jury:
THE COURT:
Thanks your patience, ladies and gentlemen. I now need to speak to you directly. Members of the jury, just prior to the break you obviously heard the witness, Ms Bevis, volunteer, in her evidence, the defendant, Mr Romanov came to live with her from prison. That is not evidence in this trial and I’ve got to say I’m very concerned you heard that at all. As I say, that comment as to where he came from to live with her is totally irrelevant and not to be taken into account. I am not naïve, I cannot expect you to forget what you heard but what I do expect you to do, as the jury in this trial, in the role as judges of fact, what I expect you to do is put aside something that is illegitimately prejudicial, which is exactly what that comment was. It is irrelevant to the matters you are going to have to determine in this trial and I ask that you put it to one side. I will remind you of this when I sum up at the end of the trial. Thank you.
The next witness to mention prison was a Mr Milne. He was asked if he ever met Mr Romanov in person:
Yes, when he was released from prison he called into Haldanes Motorcycles in Penrose and introduced himself to us.
And then later in cross‑examination:
Q.I purchased this motorcycle in a company name, my company name, didn’t I?
A.I remember you, in one of our conversations, I mean, we had letters and a couple of phone calls from the prison when they allowed you to make phone calls to us regarding that question, yeah.
Q.So you understand I purchased under my company name?
A.I understood that you were, you had a company of some sort, but I can’t recollect whether, yeah, a company name or anything like that.
The benefit of a slim doubt could be given to Ms Bevis because she was asked to date an occurrence. In contrast, both of the revelations by Mr Milne seem gratuitous, and arguably deliberate.
The Court did not again direct the jury at this point but returned to the matter in the summing up:
[11]In this trial you have heard prejudicial material from various sources and I am going to address this squarely with you now. You heard Constable Hunt’s reference to Mr Romanov’s PRN number and his nine or 10 aliases. Maureen Bevis’ evidence of Romanov moving in after he was released from prison. I spoke to you about that evidence at the time and that it was irrelevant.
[12]There was also the witness Richard Milne, meeting Mr Romanov when he was released from prison. Mr Romanov’s own question to Constable Hunt that he had been in custody and finally the defence witness Horrell referring to Romanov getting seven years’ prison.
[13]The direction I’m giving you now not only applies to those earlier maters I spoke to you about but on all the matters I’ve just identified for you. It is vital that you put that material to one side. You’ll recall, I don’t expect you to forget it, that would be naïve, but I do expect you to put it one side because it is not evidence in this trial, it is entirely irrelevant. It has nothing to do with the charge before you and the reason for that is, you cannot let it form part of your deliberations, because to do so would allow prejudice against Mr Romanov and you must guard against that. You are deciding whether it was Mr Romanov who burgled the garage, nothing else, that’s it.
Decision
The issue of references to a defendant’s previous criminal offending or his or her time in prison was considered by the Supreme Court in R v Thompson, which emphasised that whether a miscarriage arises is a case specific assessment.[5] An appellate court will not lightly interfere with the trial court’s exercise of discretion. It is instructive to note that in Thompson the Court distinguished the particular facts from cases where a prosecution witness has for his or her own purposes gratuitously introduced significant illegitimate material.[6] The Court also stated, however, that the key inquiry is not the motive for introduction of the material but the effect.[7]
[5]R v Thompson [2006] NZSC 3, [2006] 2 NZLR 577.
[6]At [19].
[7]At [18].
In the present case, the Crown points to recent examples where the introduction of prejudicial material has been held not to have occasioned a miscarriage. In R v McMaster, a single reference to prison came out in much the same format as Ms Bevis’ comment cited above.[8] The trial Judge ordered it be excised from the notes of evidence, and no further reference to it or direction on it was made. This Court considered the “least said” approach was appropriate in that case.
[8]R v McMaster [2009] NZCA 393 at [37].
In Edmonds v R, the complainant observed in evidence that she had heard the defendant “was out”.[9] Defence counsel requested that the comment be deleted from the record before the Notes of Evidence were distributed. The trial Judge agreed and this Court again endorsed the approach. The following passage is of assistance here:[10]
The enquiry by this Court on appeal is contextual. Inadvertent disclosure of the imprisonment of a defendant is not of itself sufficient reason for this Court to conclude that there might have been a miscarriage of justice and that the jury should have been discharged. The nature and manner of the disclosure must be considered. For example this Court would be more likely to find that a miscarriage of justice had occurred if a witness had unilaterally, or at the invitation of the Crown, taken matters into his or her own hands and introduced damaging and irrelevant material that affected the fairness the trial. On the other hand if the answer given is a natural response to a line of questioning in cross-examination, the position may well be different. The nature of the defence case at trial will be another factor. Where the case hinges on the credibility of witnesses, unfairly prejudicial evidence may be considered more significant. However where there is physical or other evidence which corroborates the credibility of one or other of the witnesses, then the effect of the unfairly prejudicial evidence may be lessened. Measures taken after the evidence is given are very likely to be significant. The fact that no jury direction is given where prejudicial evidence is inadvertently disclosed is not determinative. This Court is likely to regard as significant the fact that an experienced trial judge did not see fit to intervene, or see any need to direct the jury about evidence later complained of on appeal.
[9]Edmonds v R [2015] NZCA 152 at [16] (footnotes omitted).
[10]At [24].
It is clear that an inadvertent single reference to being in prison is not likely of itself to lead to a miscarriage. However, the present case goes much further. There are not only several references to prison, but the visual production of part of a criminal record. Although not handed to the jury, it could only serve to keep the matter clearly in the jury’s mind. Further, and we consider significantly, the jury is advised that this is a man who goes by several names. There is serious prejudice in that in the context of repeated references to him being in prison, and we are not persuaded that judicial directions could overcome it. We are also very concerned over the circumstances in which two witnesses both disclosed Mr Romanov’s prison history despite firm instructions not to do so.
The experienced Judge was obviously concerned, and felt compelled to direct the jury three times about these matters. We accept circumstances left him with no real choice but to do this, but the problem every Judge faces is the consequent reality that the directions only serve to repeat and highlight the prison references.
Our assessment is that the Judge did all that he could, but the circumstances were such that Mr Romanov’s right to a fair hearing was irretrievably damaged.
Result
We accordingly allow the appeal and quash the conviction.
As noted this was itself a retrial, and Mr Romanov has now spent over four years in custody in relation to this charge. The Crown responsibly did not seek a retrial direction and accordingly we make none.
Solicitors:
Crown Law Office, Wellington for Respondent
0