The Queen v Amillia Marie Ashbrook
[2000] NZCA 301
•25 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA158/00 |
THE QUEEN
V
AMILLIA MARIE ASHBROOK
| Hearing: | 24 October 2000 |
| Coram: | Richardson P Heron J Baragwanath J |
| Appearances: | H Croft for Appellant MJ Thomas for Crown |
| Judgment: | 25 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J |
Mrs Ashbrook appeals her conviction by a jury in the District Court at Christchurch on 3 April 2000 on one count of burglary and her sentence of 18 months imprisonment plus $4000 reparation.
In her notice of appeal she advanced three grounds in support of the conviction appeal: that the verdict was not open on the evidence; that counsel failed to represent her adequately; and that the Judge misdirected the jury.
The first ground is without substance and was abandoned. It nevertheless provides a useful background to the other grounds. At a Disputes Tribunal hearing the opposing party, who is the present complainant, had been supported by the appellant. The Crown contended that that event provided the motive for a burglary of the complainant’s house on 6 October 1998. A dairy proprietor noticed a car, later identified as that of the appellant, which had been parked near the complainant’s house from about 10.30 pm. He became suspicious of the length of time for which it was there, with a woman and child inside and two men standing beside it who later went to the front door of the complainant’s house and, after knocking, disappeared around the back. He noted the number of the car, which was that of the appellant. Another witness gave evidence to like effect. There was evidence from one of the burglars, Kavanaugh, that the offence was planned by and carried out on behalf of the appellant, who drove him and her son Phillip Robinson, the co-offender, to near the scene. The appellant denied criminal implication and asserted that it was mere coincidence that she had encountered first her son and then Kavanaugh in a position very close to where the crime occurred. Subject to there being an adequate direction from the Judge, it was well open to the jury to prefer Kavanaugh’s evidence.
The second ground can succeed only if
in the conduct of the defence there have been mistakes so radical that the ground (miscarriage of justice) specified in s 385(1)(c) of the Crimes Act 1961 is made out: see R v Horsfall [1981] 1 NZLR 116, 123; R v Pointon [1985] 1 NZLR 109 at 114 per Cooke J.
As developed by counsel it comprised two sub-grounds: (1) failure to object to the admission of the appellant’s videotaped interview by the Police; (2) failure to call her son. Ms Croft acknowledged the experience and competence of counsel. Her emphasis was on alleged omissions. Further points proposed by the appellant were not adopted by counsel. They constituted a general challenge to the competence of the defence presented by counsel. We do not regard them as meritorious.
The interview began with a conventional warning and an explanation of the reason for the interview. The appellant admitted ownership of the car seen parked for three hours on the opposite side of the road from the place of the burglary. Asked whether she was in the car she said she had been advised not to answer. She admitted that she still owned the car and that it was registered to her. She denied knowing the inhabitants of the house. Asked how the car got to be there she said she had been advised not to answer. She answered an enquiry as to her current address. She declined to answer what she was doing that day. The interview contained a mixture of admissions, denials and refusals to answer. While the appellant deposed at trial that she had been advised not to make a statement, the video record contained no suggestion that the appellant had been advised not to undergo interview or that she wished not to do so. Her trial counsel deposed that there had been no admission of guilt and it would be good for the jury to see the appellant’s reaction to her initial interview by the police. He did not consider it appropriate to object to the evidence. The appellant appeared on the videotape to be an alert, poised woman who replied clearly and without hesitation to the interviewing officer’s questions answering those she was prepared to respond to and declining to do so in other cases. There was no appearance of her being badgered or over-borne. We see no grounds for a successful objection, let alone radical mistake.
The appellant’s son Philip Robinson has sworn an affidavit filed in this Court. He deposed that having been released from prison earlier in 1998 he stayed for a period with his mother and then left, ending up living with his co-offender Kavanaugh. He said he had left personal belongings at his mother’s house and from time to time returned there. He said that a few days before the burglary he had been at his mother’s house and went through documents relating to the proceedings involving the complainant. He said he learned that there might be a reasonable amount of cash at the complainant’s property and that his wife had a regular medical appointment at the hospital every Tuesday and decided to commit the burglary at that address and time. Kavanaugh agreed to help. He said he did not tell his mother of their intention.
He deposed
7. Some days before the burglary my car had been stolen. Mr Kavanaugh and I took a bus to Aorangi Road. I saw my mother in her car with her daughter. She stopped and I remember that I went to the dairy and bought I think two ice-creams (one for my mother and one for her daughter) and two drinks, one for me and one for Mr Kavanaugh. We sat in the back of the car for a while and drank our drinks. My mother told me that she was on her way to University. The burglary was not discussed.
8. At one point another car pulled up and Mr Kavanaugh went to talk to a female occupant he knew and then came back. I think I was with my mother for something less than 30 minutes in total.
9. I told my mother that I was trying to find a street, I cannot now remember the name I used, so that I could see a car I might purchase. This was untrue. Also I asked my mother directions to Papanui Road where I could get a bus to her place later. She gave me directions.
10.My mother took us a block or so in her car and dropped us off.
11. Mr Kavanaugh and I walked back to 83 Aorangi Road. We saw the complainant and his wife leave their home. We waited until he left and then I went to the front door and knocked on the door to make sure no-one was there. I then went to the back and took out a pane of glass then went inside and opened the back door and let Mr Kavanaugh inside.
They then committed the burglary.
If taken at face value Mr Robinson’s evidence affords a complete defence for the appellant. That raises immediately the question why it was not advanced at trial.
In her personal submissions dated 20 September 2000, exhibited to a brief formal affidavit, the appellant asserted that her trial counsel refused to allow vital witnesses to give evidence for the defence and constantly said they were irrelevant to the case. She stated
Phillip – even as a hostile witness would dispute that of Kavanaugh.
If this is to be read as an oblique assertion that she had told her counsel that her son could verify her lack of knowledge that the burglary was planned and that she wished him to be called for that purpose it is remarkable that she has not said so plainly.
In his affidavit in response, prepared following her waiver of privilege, her trial counsel stated flatly that she
most certainly did not want her son to be called. She repeatedly said…that she wanted nothing to do with him. She disowned him.
Neither the appellant, Mr Robinson nor trial counsel was called for cross-examination.
Since Mr Robinson was available (he was in prison) his evidence is not fresh, which is one of the normal pre-conditions to its being admitted on appeal: R v Kea CA 357/98 7 December 1998 page 2. That a decision was made to run the trial without him affords no justification for concluding that the interests of justice now warrant allowing a new trial run in a different fashion, unless there was gross error of judgment by counsel. Otherwise there would never be an end. It is for the appellant to satisfy this Court that there was some mistake on the part of trial counsel so radical that miscarriage of justice is established. In the absence of cross-examination of counsel or of the appellant we must make our own assessment of the decision not to explore what Mr Robinson could say. The appellant’s evidence suffers the disadvantage we have noted at paragraph 9. Ms Croft’s concession of counsel’s experience and competence, and her refraining from any challenge to his credibility, assists our conclusion that his evidence is to be preferred where it conflicts with that of the appellant.
In deciding how far to pursue inquiry trial counsel had to weigh competing considerations. One was his duty to explore such avenues as might reasonably assist his client’s defence. Another was to listen with care to what his client was telling him. She was a mature woman with the intelligence required of a tertiary student undertaking legal studies; a bus driver with excellent credentials from her employer. A third was the need to make his own assessment, in the light of his knowledge of the case and his general experience. The fact that a client does her best to dissuade him would in some cases not relieve counsel of the need to follow up a witness who is at the hub of the enquiry. Such inquiry might in logic prove fruitful; the client might be emotionally unable to bring a rational mind to bear on the topic; a decision to interview the witness would still leave open the option of deciding not to call him, if that seemed undesirable.
Of importance in this case was counsel’s assessment of the appellant. The poise, maturity and intelligence which she displayed during the testing experience of the video interview would have been evident in his discussions with her. There are limits to counsel’s responsibility to override the client’s instructions; part of counsel’s task is to maintain that client’s confidence. In describing Mr Robinson as “a hostile witness” the appellant’s own submissions acknowledged clear animosity in their relationship even if, as Ms Croft submitted, on interview that might be seen to derive from the appellant rather than from her son. While the distinction between interviewing and calling a witness is clear, in making his decision whether to override his client it was legitimate for counsel to take into account that, if called, his very bad list as well as his relationship with her would very likely be exposed. Without him about, her own appearance as an intelligent and mature woman could very well be seen as more likely to appeal to the jury.
Counsel had to make a difficult judgment – even at the stage of deciding whether to interview Mr Robinson. We are not persuaded that he breached his duty to the appellant by acceding to her instruction. The second ground fails.
The third ground also contained two sub-grounds: (1) failure by the Judge to give a lies direction; (2) he gave an incomplete and unbalanced answer to a jury question.
As to (1), Ms Croft referred to Constable Waldron’s evidence that he asked the appellant if there were two males in the car with her when she was parked opposite the complainant’s property and that “she replied that there wasn’t but two males did approach her at one stage and ask directions to somewhere.” In cross-examination of the complainant Crown counsel put to her “That was a lie wasn’t it?” She replied “No”. Asked “why were you being economical about that?” she replied “Because at that point [the officer] had actually spoken to [trial counsel and made it perfectly clear that there was to be no interview.”
In considering whether to give a lies direction in relation to an out of court statement, a Judge must take account of the disadvantage to the accused resulting from an implied judicial assertion that there have been lies. It was well within the scope of the Judge’s discretion to refrain from giving a lies direction in relation to that exchange. As it was the Judge correctly gave a common form direction as to the three logical options of the appellant’s election to give evidence – that if her account of innocent presence were believed she was entitled to acquittal; that if she raised a reasonable doubt she must also be acquitted; that if they disbelieved her account of coincidence they should put her evidence aside and consider the case on the remainder of the evidence to decide whether the Crown had proved its case (see R v Atkinson CA 546/99 19 April 2000 page 5). Any additional direction on lies told out of court risked imbalance and was unnecessary.
As to (2), the jury’s question was
(2)Did Ashbrook see Ibrahim leave his address? (Constable Waldron’s evidence).
The Judge responded
Question two. “did Ashbrook see Ibrahim leave his address?” This evidence is found at page 17 and it is the evidence of Constable Waldron adding to the evidence that he had given after reading his brief and he said “I made a note in my notebook about a conversation at her address and where she told me she went to the university. In the discussion I asked her what she was doing there and she said she wanted to see where Mr Ibrahim lived because he had lied about his standard of living. She saw Mr Ibrahim leave his address and at that stage she went to the library. This was the university library.
The appellant’s complaint is that no balancing reference was made to her evidence on the topic. At the conclusion of the appellant’s cross-examination she was asked
Q.You set them up then trundled off to the University, clocking in at the library didn’t you?
A.No I didn’t.
Q.Waited for [the complainants] to leave who you knew from the Disputes Tribunal and dropped them off as Kavanaugh told us, that’s right isn’t it?
A.I knew what from the Disputes Tribunal, sorry?
Q.You knew who [the complainant] was from the Disputes Tribunal hearing you waited till he and his family left and dropped your son and Kavanaugh off up the road to walk back to do the job?
A.No I didn’t.
Ms Thomas submitted that no injustice resulted from the Judge’s decision not to read that passage, to balance that of the Constable. We accept her submission. First, in the two day trial the jury had heard that passage shortly before the Court adjourned on the evening of Day 1 after completion of the evidence. It was rational for them to wish to be reminded after retirement on Day 2 of the Constable’s account given just after 2pm the previous day. While not infrequently a Judge will, in fairness, remind the jury of more evidence than they have called for, that was not in our view essential in this short case. Moreover, the main focus in the relevant passage of the appellant’s cross-examination was not on seeing the complainants leave but on the Crown’s claims she had set them up and assisted the burglars to perform their crime. Repeating it would have disadvantaged rather than helped the appellant. This ground also fails.
As to sentence, the appellant’s co-offenders who performed the physical burglary committed malicious and intimidatory damage amounting to some $12,000.
Kavanaugh, who pleaded guilty and was sentenced in the District Court at Timaru on 4 March 1999 and later gave evidence against the appellant for the Crown was sentenced to two years imprisonment. The sentence was suspended. He is a man of 34 years of age with a considerable criminal list who at the time of the crime was on parole following his second conviction for burglary.
Phillip Robinson was sentenced on a plea of guilty following depositions in the District Court at Christchurch on 23 September 1999 on the present offence and on two other burglaries as well as related offending. He is a man of 23 with a bad criminal list who also was on, or had just completed, parole at the time of the present offence. The other offences were committed while he was on parole. The sentencing Judge expressed disagreement with the suspension of Kavanaugh’s sentence, in view of its serious nature, the degree of planning and the significant loss to the complainants. He imposed a total term of four years imprisonment, attributing 18 months to the present offence and 30 month sentences, cumulative on the 18 months but concurrent between themselves, to the other burglaries.
The appellant is a woman of 40 whose previous sentence for dishonesty, in relation to a benefit, was 14 years ago and resulted in orders for community service and reparation of $2,800 with which she complied. A pre-sentence report recorded that she had struggled to overcome a violent and troubled past in an effort to establish herself as a credible member of the community. Her second marriage has been successful for some 12 years and she earned the respect of the Christchurch City Council by whom she was employed as a bus driver until her voluntary resignation following conviction. At the time of her arrest she was undertaking legal studies. She has no present means to make reparation.
The sentencing Judge reviewed the sentences imposed on the co-offenders. He contrasted their pleas of guilty with the appellant’s refusal to acknowledge guilt, which deprives her of the discount which Kavanaugh in particular received. He recognised her excellent work record and reputation for honesty. He nevertheless stressed that the offence was very serious, planned, and with overtones of revenge or intimidation. He emphasised the element of malicious damage and the need for deterrence, given the current incidence of burglary. In view of the appellant’s relatively short list and the absence of previous convictions for burglary but in the absence of other mitigating factors he imposed a sentence of 18 months imprisonment, which he declined to suspend. He gave leave to apply for home detention. He ordered the appellant to make reparation of one-third, or $4,000 of the $12,000 loss, such order to be suspended until her release.
On appeal Ms Croft sought to challenge the Judge’s conclusion that, as he put it, this was very largely the appellant’s enterprise. She relied on evidence to that effect from Kavanaugh, on that of the appellant minimising her responsibility and on the bad lists of the co-offenders. We have considered that submission with care. Ms Thomas acknowledged that the term of the prison sentence turned on that conclusion and the element of malicious damage associated with it. We have concluded that the jury’s rejection of the element of coincidence that underlay the defence case justified the Judge’s conclusion as to the appellant’s role and we are not prepared to differ from it.
The effects on the complainant of a malicious crime causing wanton damage warranted both the prison sentence imposed by the Judge on the appellant as its organiser and its length. We decline to afford her the benefit of the lenient sentence imposed on Kavanaugh which may have resulted from a perception that, by his early plea and willingness to give evidence against the appellant, he warranted the opportunity to break his cycle of crime. It was not submitted that the appellant could not make reparation following her release. The appeal against conviction and that against sentence are both dismissed.
Solicitors
Helen Croft, Wellington, for appellant
Crown Law Office, Wellington
0
0
0