The Queen v Anderson

[2008] NZCA 62

IN THE COURT OF APPEAL OF NEW ZEALAND

CA279/07
[2008] NZCA 62

THE QUEEN

v

MELINDA JOCELYN ANDERSON

Hearing:4 March 2008

Court:Chambers, Gendall and Harrison JJ

Counsel:J J McCall for Appellant

M D Downs for Crown

Judgment:18 March 2008 at 3.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       Ms Melinda Anderson appeals against her conviction on one count of burglary following trial before a Judge and jury in the District Court at Christchurch.  She has not pursued an appeal against her conviction on an additional count of possession of instruments capable of being used for burglary. 

[2]       The principal grounds of appeal advanced by Ms Anderson’s counsel, Mr Jeffrey McCall, who did not appear at trial, are: (1) the trial Judge failed to direct the jury to acquit on the burglary charge if it was satisfied that the evidence might reasonably have supported a conviction on an alternative count of receiving; and (2) error by trial counsel in failing to properly advise Ms Anderson before she decided not to give evidence at trial.

Background

[3]       Some time during 10 January 2006 a residential property occupied by Ms Deborra Johns in Sumner, Christchurch, was burgled.  The intruder or intruders had effected entry by jemmying open a window.  A number of valuable items were stolen including a large television set, recording and camera equipment, an Apple I‑pod with its adapter, ear piece, carry case and charger, a brooch, a pair of earrings, a Russian wedding ring, and a women’s Astina watch.  Also stolen was a backpack with Ms Johns’ name and phone number printed on the inside cover.  The total value of the property exceeded $18,000. 

[4]       At 3.45 am on 13 January 2006 the police stopped a vehicle driven by Mr Anthony Brooking in a Christchurch suburb.  Ms Anderson was a passenger.  An electronic scanner tuned to the police communications frequency was prominently located in the central console.  A search of the car revealed two torches, a pair of gloves, a beanie hat and a set of binoculars.  A jemmy bar was behind the front passenger seat.  On the back seat was Ms Johns’ backpack containing one of her earrings. 

[5]       The police arrested Mr Brooking but not Ms Anderson.  While seated on the pavement she advised a police officer that some of her property was in the vehicle including an I-pod charger or adapter which was fitted into the cigarette lighter.  The officer gave her the item. 

[6]       Some time later on 13 January the police obtained a warrant to search a property occupied by Mr Brooking and Ms Anderson.  They recovered a number of the items which Ms Johns later identified as stolen from her home on 10 January.  Among them were the I-pod and its charger, the Astina watch and the Russian wedding ring. 

[7]       Ms Anderson was later interviewed by the police but declined to answer any questions.  She and Mr Brooking were charged jointly with burglary and possession of instruments, and Mr Brooking alone faced two other counts. 

Appeal

(1)      Summing-up

[8]       The first ground of appeal advanced by Mr McCall is that the trial Judge, Judge MacAskill, failed to direct the jury properly. 

[9]       The indictment did not contain a charge of receiving in the alternative to burglary.  The Crown’s case against both Mr Brooking and Ms Anderson relied in part upon what is known as the doctrine of recent possession, which the Judge described in his summing-up to the jury as follows:

[48]     … The law of evidence has long recognised that the fact that a person is found in possession of goods recently stolen in a burglary is evidence that the person was involved in the burglary.  I emphasise that it is evidence and not necessarily conclusive.  It is a matter for you to decide just how strong the evidence is and, of course, it is evidence in the absence of any other evidence suggesting an alternative reasonable explanation.

[49]     For evidence of recent possession to affect an accused, you must be satisfied that the Crown has proved that the accused was in possession of the goods…

[10]     Mr McCall submits that the circumstances of Ms Anderson’s recent possession of the stolen goods required the Judge to direct the jury to acquit on the burglary charge unless it was satisfied that Ms Anderson’s commission of the alternative crime of receiving was not a reasonable possibility: R v Keenan [1967] NZLR 608 (CA). He submits that that possibility was open to the jury on the evidence but was not raised in trial counsel’s address or by the Judge, although the Judge did refer briefly to the possibility when directing the jury on a submission advanced by Mr Brooking’s counsel.

[11]     Mr McCall relies particularly on this passage from the judgment of Turner J in Keenan at 609:

… Where on a perusal of the depositions there appears to be any good ground upon which one charge rather than another ought to be selected, no doubt the prosecutor has a discretion so to order the conduct of the case.  But if, intending to rely on the doctrine of recent possession, a prosecutor is left without anything in the evidence to indicate that, as between a charge of burglary and one of receiving, one or the other ought to be preferred, then we think that the proper practice is to charge in the alternative, leaving it to the jury to choose the proper verdict.  To do otherwise, and to select one charge without evidential grounds for the selection, seems to us to leave it open to the accused to put forward his own concession of guilt on the other as an adequate defence, and as entitling him to a verdict of acquittal on the charge preferred. 

[12]     The circumstances in Keenan are materially distinguishable.  The Crown’s case rested exclusively upon Mr Keenan’s possession, within a day or two of a burglary, of three cheques which had been stolen from the burgled premises.  Mr Keenan told a witness that he had received the cheques from some associates in an hotel.  He later admitted to a police officer to cashing four other cheques stolen in the burglary within that short timeframe.  He pleaded guilty to separate charges of false pretences for tendering the stolen cheques at shops in payment for goods.  But he denied participation in the burglary itself.

[13]     On this narrative alone, there was a sufficient evidential basis for convicting Mr Keenan on a charge of receiving alternatively to burglary.  His admissions and conduct were consistent with receipt of the cheques from third parties knowing they had been dishonestly obtained.  However, the Crown did not lay alternative charges, and in allowing the appeal this Court in Keenan was influenced by an important policy factor: that by excluding the possibility of a finding of guilt on receiving, the Crown had so ordered the trial as to seriously and unfairly affect the ultimate penalty imposed on Mr Keenan: at 609. In the result he was sentenced to three years imprisonment for the burglary concurrent with his existing sentence of 18 months for the false pretences; if convicted of the lesser charge of receiving, he would have been liable to a maximum term of three months imprisonment cumulative on the existing 18 months.

[14]     Those factors are absent here.  Ms Anderson did not give an explanation to any witnesses, including the police officer who attempted to interview her, that might possibly be construed as consistent with the crime of receiving.  Her only explanation took the form of a dishonest assertion of ownership of one stolen item.  She has never claimed receipt of the other chattels from third parties.  And there was nothing elsewhere in the evidence to support such a thesis.  Ms Anderson cannot complain that she was shut out from a finding of guilt of receiving, and thus the consequence of a lesser penalty, when she never sought to raise that alternative possibility before the jury, and indeed does not do so now in the affidavit she filed in support of her appeal. 

[15]     Mr McCall also relies upon R v Cruden [2007] NZCA 537. The trial Judge in the District Court had failed to direct the jury, where the indictment was confined to one count of burglary, that it should acquit if the evidence might reasonably support a finding of guilt of receiving. This Court allowed Mr Cruden’s appeal.

[16]     Cruden is, however, distinguishable for the same reasons Keenan is distinguishable.  There was no evidence in Cruden to determine whether Mr Cruden was the burglar or the receiver of the US currency.  That contrasts with the position here where there was additional evidence from which the jury could conclude Ms Anderson was the burglar.  Mr Mathew Downs, for the Crown, pointed to evidence of Ms Anderson’s possession jointly with Mr Brooking of a number of items capable of being used for burglary within two days of the burglary of Ms Johns’ home.  Ms Anderson’s conviction for that crime, based on the premise of her own possession of the incriminating instruments, is unchallenged.  Among the items found was a jemmy of the type used to gain entry in the burglary together with Ms Johns’ backpack.  Discovery of these items stood independently as evidence available to support a charge of burglary alone.

[17]     There was also Ms Anderson’s direct claim to ownership of the I-pod adapter in the front console of the vehicle.  Ms Anderson did not dispute at trial that the item was stolen in the burglary.  Consequently her only explanation for her possession of one among a number of stolen goods was untruthful.  Mr McCall concedes that, in the absence of a challenge to Ms Johns’ evidence, the jury was entitled to infer that Ms Anderson came into possession of the adapter dishonestly. 

[18]     Mr McCall further concedes that once the Crown established possession of the stolen items in conjunction with possession of the instruments capable of being used for burglary then, in the absence of a reasonable explanation to the contrary, the jury was entitled to infer that Ms Anderson was one of the burglars.  His concession is proper, and decisive.

[19]     Another distinguishing feature from Cruden is that Mr Cruden did assert he was a receiver and indeed had been prepared to plead guilty to a count of receiving if one were included in the indictment: at [22]. As we have already noted above, Ms Anderson has at no time asserted she was a receiver.

[20]     We are satisfied that Judge MacAskill did not err in his directions to the jury.  This ground of appeal must fail. 

(2)Counsel’s Incompetence

[21]     The second ground of appeal is based upon trial counsel’s incompetence.  Ms Anderson swore an affidavit in support on 28 January 2008.  She acknowledged signing a handwritten statement that she did not wish to give evidence at trial after conferring with her trial counsel, Mr Michael Starling.  She deposed that Mr Starling advised her that the prosecutor would cross-examine her on her knowledge of Mr Brooking’s participation in the burglary; that she did not wish to ‘… speak against Tony Brooking as I was frightened about possible retaliation by him or his friends’; and that she knew that a refusal to answer questions might place her in a bad light before the jury.  She said she accepted Mr Starling’s advice not to go into the witness box.

[22]     Ms Anderson said that if she had given evidence she would have produced a card in the form of a receipt issued by a jeweller confirming that Mr Brooking had in fact purchased the Astina watch which Ms Johns identified as being stolen in the burglary.  She also alleged that she herself purchased a Russian wedding ring, also identified by Ms Johns as a stolen item, from a shop in Riccarton Mall which had since closed.  She says she was deprived the opportunity of giving this evidence as a consequence of her counsel’s advice. 

[23]     Mr Starling swore a brief affidavit in answer.  He confirmed that Ms Anderson decided not to give evidence at trial after receiving his advice.  He stated that Ms Anderson did not advise of her fear of Mr Brooking. 

[24]     This ground of appeal must fail also.  Mr McCall does not suggest that, even if Ms Anderson’s account of events was accepted, Mr Starling’s advice was wrong.  And, as Mr Downs points out, Ms Anderson does not assert that, if she was advised otherwise, she would have given evidence or what she would have said in answer to the Crown’s case on the burglary charge or that she would give an account consistent with receiving.  Ms Anderson’s affidavit is limited to an assertion of ownership of the watch and a ring.  In neither case is there independent corroborative evidence.  She does not pursue her claim to ownership of the I-pod adapter. 

[25]     We are not satisfied that Mr Starling erred in his advice to Ms Anderson about giving evidence or, even if he had erred, that she would have given evidence which might have rebutted the inferences otherwise available from the Crown case, or provided a reasonable basis for a finding of guilt on an alternative charge of receiving.

[26]     We dismiss Ms Anderson’s appeal against conviction.

Solicitors:

Papprill Hadfield & Aldous, Christchurch, for Appellant
Crown Law Office, Wellington