The Queen v Beazley

[2009] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA7/2009
[2009] NZCA 283

THE QUEEN

v

MATHEW GRANT BEAZLEY

Hearing:24 June 2009

Court:Baragwanath, Randerson and Miller JJ

Counsel:C B Wilkinson-Smith for Appellant

M F Laracy for Crown

Judgment:3 July 2009  at 10.00 a.m.

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]       The appellant appeals against his conviction by a jury in the High Court on two counts of aggravated robbery, one of kidnapping, and one of offering to supply methamphetamine.  Two grounds are advanced. 

[2]       The first is that Stevens J erred in allowing the evidence of the aggravated robberies, involving different complainants, to be used in respect of each other as propensity evidence.  The second was that the verdict on the count of offering to supply methamphetamine was unreasonable and could not be supported having regard to the evidence. 

The aggravated robbery counts: count 1 in respect of Smith; count 4 in respect of Hood

[3]       Counts 1 and 4 alleged:

1.THE CROWN SOLICITOR AT AUCKLAND charges that MATHEW GRANT BEAZLEY between 1 September 2006 and 31 October 2006, at Auckland, being armed with offensive weapons namely a stun gun and a torch robbed Richard Leslie Smith of a Holden motor vehicle.

4.THE said Crown Solicitor further charges that MATHEW GRANT BEAZLEY between 1 November 2006 and 31 December 2006, at Auckland, being armed with an offensive weapon namely a knife, robbed Ross Stewart Hood of a Honda motor vehicle.

Count 1: Mr Smith

[4] Early one morning in October 2006 Mr Smith received a text message from his friend Ms Beazley who is the sister of the appellant. Mr Smith drove to Ms Beazley’s house to see whether she was all right. The appellant, who is a larger man than Mr Smith, was holding a torch and a stun gun. An accomplice was also present. The appellant moved to block the exit and told Mr Smith they were going to sit down at the table and have a chat. The appellant demanded that Mr Smith hand over the keys of his Holden HSV Senator motor car, valued at some $15,000, and that Mr Smith continue to make the monthly hire purchase payments of $820. The appellant hit Mr Smith across the head with a torch, pointed the stun gun at him and turned it on so that it emitted a buzzing sound. The appellant said that if the car were not handed over he would come and break Mr Smith’s bones and would get him if anyone found out. He said that the appellant then offered him to smoke first marijuana and then methamphetamine. We return to that topic at [19] below. Mr Smith told the appellant that he did not have the car with him as it had been out of petrol, and that he had brought his brother’s car. The appellant drove Mr Smith to Mr Smith’s house in Mr Smith’s brothers’ car to retrieve the Holden HSV Senator. The appellant told Mr Smith that they were going to a place in Pakuranga where the appellant’s sister was waiting. He got into the Holden which Mr Smith drove to a petrol station where the appellant partially refuelled the vehicle. The accomplice followed in the appellant’s sister’s car. The appellant drove the Holden from the petrol station first to the Pakuranga address and then to Mr Smith’s home from which the appellant drove off in it without Mr Smith.

[5]        Mr Smith continued making the $820 payments and in December reported to the Police that the vehicle had been stolen from a car park.  He made a similar statement to his insurance company which paid out on the vehicle.  Defence counsel put to Mr Smith in cross-examination that he was told by Police that unless he asserted that the appellant had taken the car the Police would charge him with insurance fraud.  That he denied.

Count 4: Mr Hood

[6]       In November or December 2006 Mr Hood encountered the appellant and subsequently saw him at a party in Pakuranga.  The appellant approached Mr Hood and who he asserted had treated him disrespectfully.  The appellant had a small sheath knife which he was waving around and talked about what happened to people who are ‘narks’ and what can happen if you go to prison.  The appellant prodded Mr Hood with the knife for five to ten minutes and asked him where the keys to Mr Hood’s car were.  Mr Hood described himself as rather aghast but also scared that there might be consequences.  As a result he handed over his keys to the appellant.

[7]        The car was found abandoned on 11 January.  The car, which might have been worth $9,000, had been left in poor condition and was worth about $2,000.  In cross examination defence counsel put to Mr Hood that he was in the process of losing his job because of a significant drug habit; and that a senior Police officer came to see him about a stolen car and brought up the appellant’s name.

The High Court judgment and directions

[8]       At the conclusion of evidence Stevens J ruled on the Crown’s application for a direction that the evidence on counts 1 and 4 could be treated as propensity evidence on the other count.

[9]       Rightly, as required by s 43(2) of the Evidence Act 2006, he began by identifying the issues in the case.  He determined that the defence contention in relation to count 1 was that Mr Smith was manufacturing his allegations against the accused in order to save his own skin over an alleged insurance fraud concerning a claim made on his insurance company in relation to the Holden motor vehicle the subject of the count.  In relation to count 4, the Judge identified the defence contention as that Mr Hood was making up much of what he said about the loss of his Holden motor vehicle in order to avoid prosecution in relation to the use of drugs. 

[10]     So a similar attack was being made on each of the complainants.  The issue in each case was the veracity of the complainant, bearing upon proof of the facts alleged. 

[11]     Turning to the other aspects of s 43, collusion between the complainants was not suggested (subs (3)(e)).  Stevens J rejected the defence’s main contention, of suggestibility (the same clause) on the basis that the investigating police officer had sought out both complainants.  The submission on this aspect was not pressed in this Court.  The Judge considered that the timing of the two events was reasonably close (subs (3)(b)) and that there was significant similarity between the acts, events and circumstances (subs (3)(c)).  He also excluded the application of s 8 (unfair prejudice to defence and denial of right to effective defence) which had not been advanced by defence counsel.  He was satisfied that the Crown should be permitted to contend for the operation of the evidence on each count as propensity evidence on the other.

[12]     The Judge directed the jury accordingly.

Was there a miscarriage?

[13]     The issue in this Court is whether there was a miscarriage of justice.  In oral argument Mr Wilkinson-Smith advanced a submission not contained in the grounds of appeal, which had not challenged the summing-up: that when directing the jury as to the use to which the propensity evidence might be put (at [51]) the Judge referred only to the Crown contention and not to that of the defence.  But at [84] in directing as to the defence case the Judge made plain the defence’s contention on that topic.  When the summing-up is considered as a whole, we have no doubt that this infelicity in an otherwise impeccable direction did not mislead the jury. 

[14]     The remaining question is whether the Judge was right to permit the use of propensity evidence at all.

[15]     Section 43(1) states that propensity evidence may be offered by the prosecution only if its probative value in relation to the issue in dispute outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.  The matters the Judge may consider among others are stated in subs (3):

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b)  the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c)  the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d)  the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e)  whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f)  the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

[16]     Finally, s 43(4) states that:

When assessing the prejudicial effect of evidence on the defendant the Judge must consider, among any other matters:

(a)  whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and

(b)  whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[17]     This Court has indicated in R v Healy (2007) 23 CRNZ 923 that the Court should make its assessment in terms of the language of the statue rather than by reference to the principles of the common law, which had been the subject of dispute.  But the Act does not state what standard the Court is to employ when considering the statutory factors. Ms Laracy proposed for present purposes a test of whether the nature of the respective accounts was such as to make a contention of double fabrication defy credence or stretch credulity. Mr Wilkinson-Smith supported the formulation of Lord Hailsham in Boardman v DPP [1975] AC 421 at 452-3 (HL): whether exclusion of the evidence would “make coincidence an affront to common sense”; something “which is against all the probabilities if the accused person is innocent”. As a divisional court we do not venture any general test; Parliament’s stipulation in subs (2) of the importance of identifying the issue may require caution in attempting to do so.

[18]     Considering the statutory considerations under s 43 we are satisfied that Stevens J was right to direct that the jury might use the evidence on each count as propensity evidence bearing on the other.  Once the possibility of collusion or suggestibility is excluded, there was significant probative value in the evidence arising from the brief interval between the two events, the section of complainants vulnerable to pressure and, most importantly, the common factor of demanding the keys of the complainant’s motor vehicles by threats of violence involving the use of weapons in each case.  We are satisfied in accordance with the statutory test, that the Judge was right to conclude that the probative value of the evidence outweighed the risk that the evidence might have an unfairly prejudicial effect on the appellant.

The offering of drugs count

[19]     Count 3 charged the appellant with offering to supply Mr Smith with methamphetamine.  Mr Smith’s evidence was as follows:

Did anything else happen while you were still at Sue Beazley’s house together with Matthew? [sic]…he offered me a smoke

What did he offer you to smoke?…marijuana

What did you say in response?…I said I didn’t want any

When people offer you things like a lolly or smoke or whatever that’s normally a friendship thing, he did you feel when he offered you a smoke of marijuana?…I felt like he was bribing me

Did he offer you anything else?…yes

What was that?…methamphetamine

In what form was he offering you methamphetamine?…in a glass pipe

Was that pipe being used at the time he offered it to you?…yes

Who by?…by him, by Matt

Was it also being used by the other man or not?…yes

Who was it who actually offered it to you?…Matt Beazley

Did you accept that?…no

[20]     Section 385 of the Crimes Act 1961 requires that we allow the appeal if we are of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.  We are not of that opinion.

[21]     The actus reus of the crime is to offer to supply methamphetamine; in R v During [1973] 1 NZLR 366 (CA) it was held to mean intimate to another a willingness on request to supply prohibited drugs. The mens rea is to intend to do so.

[22]     Mr Wilkinson-Smith submitted that to establish offer required more than the broad statements “he offered me a smoke… methamphetamine… in a glass pipe… being used at the time he offered it…by him”.  He argued that the evidence must go further and demonstrate how the offer was made, as by words or gesture.

[23]     We are concerned with whether, in terms of s 385, there was miscarriage of justice in a jury trial.  The law’s standards should be those of the ordinary New Zealander, of which we are prepared to take judicial notice.  It is idle to suggest that the evidence of Mr Smith would not convey to such an audience a perfectly clear invitation to smoke methamphetamine.  That is an offer and must have been understood as such by the appellant.

Decision

[24]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington