Simon v The Queen

[2017] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000047 [2017] NZHC 1235

BETWEEN

MILES GRANT SIMON

Appellant

AND

THE QUEEN Respondent

Hearing:	6 June 2017
Appearances:	R J Laybourn for Appellant D J McWilliam for Respondent
Judgment:	8 June 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 8 June 2017 at 11.30 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SIMON v R [2017] NZHC 1235 [8 June 2017]

Introduction

[1]      Following a judge alone trial before Judge Spear in the Hamilton District Court in May 2016, Miles Simon was convicted on one charge of burglary.1   He was subsequently sentenced to three years’ imprisonment on that charge (which reflected the totality of other offending to which he had pleaded guilty).2   Mr Simon wishes to appeal his conviction on the ground that a miscarriage of justice has occurred and his sentence on the ground that it is manifestly excessive.

[2]      Mr Simon filed his notice of appeal outside the prescribed time3  and has applied for leave to bring his appeal out of time.4    Whether an extension of time should be granted turns on the reason the appeal is filed late and what merit, if any, the prospective points on appeal appear to have.5   As to the first, Mr Laybourn, for Mr Simon, has explained the lateness as being the result of the District Court’s failure  to  provide  the  necessary  documents  in  sufficient  time.     I  accept  his

explanation.

[3]      The real issue is whether there is any apparent merit in the proposed grounds. I consider this issue together with Mr Simon’s application for leave to adduce further evidence.

Proposed appeal

The case in the District Court

[4]      The case concerned a burglary at a residential address in Massey Street, Hamilton, on 16 January 2016.  The tenant of the property returned home to find the back door open, items from the house at the back door and other items missing.  The safety catches on one of the kitchen windows were broken.  Mr Simon’s fingerprints were found in two places on the inside of the window frame.  There was no other

evidence  linking  him  to  the  scene.    The  major  issue  at  trial  was  whether,  as

1      Police v Simon [2016] NZDC 26829.

2      Police v Simon [2016] NZDC 98893.

3      Criminal Procedure Act 2011, ss 231 and 248.

4      Criminal Procedure Act 2011, ss 231(3) and 248(4).

5      R v Slavich [2008] NZCA 116 at [14].

Mr Simon asserted, there was an innocent explanation for his fingerprints being on the inside of the window through which access had, apparently, been gained.

[5]      It was common ground that Mr Simon had been to the house on previous occasions at the invitation of his former partner, who had flatted at the property.  He said that this provided an innocent explanation for his fingerprints.  But the police case  was  that  the  position  of  the  finger  prints  was  inconsistent  with  ordinary touching and consistent with someone reaching in from the outside.

[6]      The window comprised two parts, separated by a vertical wooden frame.  On the right hand side, looking from the inside, there were two panes of glass separated by a horizontal frame.  The lower pane was fixed.  The upper fanlight window was hinged at the top and could be opened but safety catches on each side of it limited the extent to which it could be opened.  The complainant said that this window was never opened.  The safety catches were broken in the burglary.  The left hand side of the window comprised a single pane hinged on the side.  It opened fully.  The police case was that Mr Simon had broken the safety catches on the fanlight window, reached in and opened the larger window, gaining entry through that window.

[7]      The first place in which Mr Simon’s fingerprints were found was the inside surface of the horizontal window frame below the fanlight window.  Their position was consistent with a person reaching through the window from the outside and grasping the frame.  To have left fingerprints in that position from inside the kitchen would have required the person to have twisted the arm unnaturally.   The other fingerprints were found on the right hand edge (looking from the inside) of the vertical frame that divided the larger and smaller windows.

[8]      The Judge found that the only sensible explanation for the fingerprints below the fanlight window were that they were made by Mr Simon when he was standing outside and that there was no innocent explanation for them being in that position.

Proposed ground of appeal and application to adduce further evidence

[9]      Mr Simon asserts that the Judge was wrong to find that the presence of his fingerprints meant that he had broken the safety catches and reached into the fanlight

window to gain entry through the larger window.   He wishes to adduce evidence from his former partner, Tania Te Rangi to show that there was an innocent explanation for his fingerprints being on the window frame.  Ms Te Rangi did not give evidence at the trial because she had lost touch with Mr Simon until recently so he was unable to ask her to give evidence.

[10]     Fresh evidence may be adduced for purposes of an appeal.6    Such evidence must, however, be fresh, credible and cogent in the sense that it might reasonably have led to a finding of not guilty if it had been given at trial.7    In addition, any application to adduce further evidence on appeal must comply with r 8.8 of the Criminal Procedure Rules 2012, r 8.8(3) of which requires that the affidavits filed in support of the application must both set out the further evidence and explain why the evidence was not available at trial and why it could not, with reasonable diligence, have been called.

[11]     Ms Te Rangi’s affidavit confirms that she was living at 69A Massey Street, Hamilton,  between  July  2015  and  January  2016  and  was,  at  the  time,  in  a relationship with Mr Simon who regularly visited her at the address.  Of Mr Simon’s claim  that  there  was  an  innocent  explanation  for  his  fingerprints  being  on  the window frame, Ms Te Rangi said:

He would normally text me before his visits and there were times that I was alone and did not hear him knocking at the door.  There were certainly times that he knocked on the kitchen windows to get my attention.

I have no doubt that there would be times when he touched the kitchen windows from the outside of the house when coming to visit me and from the inside when socialising with me and sometimes others as well.

[12]     As to the reason that Ms Te Rangi did not give evidence at trial her affidavit explains that she had lost contact with Mr Simon when their relationship ended at the end of January 2016.  She moved to Turangi without telling him and since then had changed her phone number at least three times.  She said that she had “no idea that he had been charged with the burglary … or that he was trying to contact me to be a

witness”.

6      Criminal Procedure Act 2011, s 335(2)(c).

7      Bain v R [2007] UKPC 33, [2007] 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28 at [116]–

[118].

[13]     Ms Te Rangi’s assertion that she had “no idea” that Mr Simon had been charged must be wrong because the evidence is clear that she was actually with Mr Simon when he was arrested for this offence and it is apparent from Mr Simon’s Police interview that he knew that Ms Te Rangi was a potential witness.  There is, however, no affidavit from Mr Simon himself explaining why her evidence could not, with reasonable diligence, have been called.

[14]     Mr Laybourn invited me to conclude from Ms Te Rangi’s own affidavit that her leaving Hamilton and changing her phone number provided an adequate explanation as to why her evidence could not have been called.  I do not accept that this is the case.   Given the readiness with which enquiries can be made through social media, Mr Simon needed to provide an affidavit explaining what steps he had taken to try and locate Ms Te Rangi or, if none were taken, then to explain why taking steps would not have led to him locating her.  Whilst it may be the case that the circumstances of some witnesses are such as to justify an inference that, even with  reasonable  diligence,  the  evidence  would  not  have  been  available,  Ms  Te Rangi’s circumstances are not so unusual that I could draw that inference.

[15]     Finally, Ms Te Rangi’s evidence is not cogent.  She refers only to Mr Simon touching the kitchen windows on the outside to get her attention.  She does not say that she recalls any specific occasion when he touched the inside of the windows. Most significantly, however, her evidence does not rebut the Crown case, which the Judge specifically accepted, that the unusual position of the fingerprints was inconsistent with innocent touching but, rather, consistent with reaching in from the outside.

[16]     For these reasons I refuse the application to adduce further evidence.

Other proposed grounds of appeal

[17]     In addition to the challenge to the Judge’s conclusion on the fingerprints, which Mr Laybourn addressed in oral argument, Mr Simon himself filed lengthy additional submissions.  He raised three main concerns.  The first was that there was an innocent explanation for his fingerprints being on the window, which I have already dealt with.  The second was that the complaint itself was false and that the

complainant, Ms Wade, had lied for reasons of her own.  There is an insurmountable problem with this submission.  Ms Wade’s credibility was not challenged in cross- examination and Mr Simon has not suggested any evidential foundation on which she might have been challenged. This proposed ground has no merit.

[18]   Mr Simon’s third proposed ground is that the Police investigation was inadequate because there was no evidence of proof of ownership of the items said to have been taken.  There is not merit in this point either.  Not only was Ms Wade not challenged  in  her evidence of what  was  taken  but  proof of ownership  was  not necessary.  The charge of burglary was brought under s 231(1)(a) of the Crimes Act

1961.   This offence is complete upon proof that the defendant entered a building without authority with the intent to commit an offence.  The actual taking of items is not an element of the offence.  As a result, proof of ownership of the items was not required for conviction.

[19]     There is no apparent merit in any of the grounds that Mr Simon wishes to raise on appeal. The application for leave to appeal is therefore dismissed.

Appeal against sentence

[20]     Mr Simon complains that the sentence imposed was manifestly excessive. As already noted, the end sentence on the burglary charge of three years reflected the totality of that and other offending.  The burglary charge was the most serious and the only one to which Mr Simon pleaded not guilty.  However, he had pleaded guilty to two charges of shoplifting, one of theft, one of possessing a pipe for smoking methamphetamine and one of breaching release conditions.   The Judge was sentencing on all these charges.

[21]     The Judge took a starting point on the lead charge of burglary of two years’ imprisonment.   The Judge clearly regarded the burglary seriously, noting that it involved breaking into a dwelling-house during daytime, which inevitably carried the risk of confrontation with an occupier.  It cannot reasonably be argued that the

Judge’s sentence was out of the available range.8

8      Cashmore v NZ Police [2017] NZHC 105; Hetariki v NZ Police [2015] NZHC 2461; McFall v

NZ Police [2015] NZHC 2095.

[22]     The  Judge  uplifted  the  starting  point  by six  months  to  reflect  the  other offending so as to recognise the totality of the offending.  This was not excessive, given that the uplift was reflecting five other charges.   He then imposed a further uplift of nine months to reflect Mr Simon’s previous convictions; Mr Simon had 53 previous convictions for dishonesty of which 18 were for burglary.  In sentencing for burglary it is important to avoid any element of double counting in relation to the burglary charges.   But this uplift reflected a very extensive and varied record of previous offending and was imposed in relation to six varied charges.  I am satisfied that there was no risk of double counting.  The Judge then allowed a reduction of three months to reflect the guilty pleas on the other charges, resulting in an end sentence of three years.

[23]     Looked at overall, the end sentence cannot be said to be excessive having regard to the totality of the offending.   There is no merit in the proposed appeal

against sentence and leave to bring the appeal is refused.

P Courtney J