The Queen v Burns
[2007] NZCA 308
•23 July 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA142/06
[2007] NZCA 308
THE QUEEN
Hearing:
Court:
Counsel:
JULE PATRICK BURNS
23 May 2007
William Young P, Baragwanath and Heath JJ
D J Taffs for Appellant
P J S Shamy and R M T Thomas for Crown
Judgment: 23 July 2007 at 2.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by William Young P)
R V BURNS CA CA142/06 [23 July 2007]
Table of contents
Para No
Introduction [1]
Was the verdict unreasonable? [3]
The Crown case [3]
The defence case [12]
Was there an appropriate evidential basis for the verdict? [14]
Was there a miscarriage of justice associated with the admission of
allegedly improperly obtained DNA evidence? [17]
Was there a miscarriage of justice associated with alleged
incompetence of counsel? [26]
Was there a miscarriage of justice associated with the trial Judge's
directions as to out of court statements? [32]
Result [41]
Introduction
[1] Ms Susan Sutherland, a Christchurch sex worker, was strangled at around 5.30am on 16 April 2005. Her naked body was found a few hours later on a vacant section in Peterborough Street, near the intersection of that street and Park Terrace. The police investigation soon came to focus on the appellant, Jule Patrick Burns. He was eventually arrested on 23 May 2005. He was tried before John Hansen J in March 2006, found guilty and sentenced to life imprisonment with a minimum non-parole period of 17 years. He now appeals to this Court - an appeal which is confined to conviction as an earlier signalled challenge to sentence has been abandoned.
The arguments of Mr Taffs for the appellant give rise to four issues:
(a) Was the verdict was unreasonable?
(b)Was there a miscarriage of justice associated with the admission of
allegedly improperly obtained DNA evidence?(c)Was there a miscarriage of justice associated with alleged
incompetence of counsel?
(d)Was there a miscarriage of justice associated with the trial Judge's directions as to out of court statements?
These issues provide useful headings for discussing the case.
Was the verdict was unreasonable?
The Crown case
[3] The Crown was able to establish that Ms Sutherland was picked up, apparently by a client, from Manchester Street, around 5.05am on 16 April 2005. Ms A (a sex worker and friend of Ms Sutherland) and Mr Kane Wayman saw Ms Sutherland get into a white Honda Prelude. At trial both Ms A and Mr Wayman said that they saw only one person in the car. The car then headed west along Peterborough Street, ie in the direction of the section where the body was later found. Evidence from people who were adjacent to the Peterborough Street section as to what they heard indicated that something untoward took place at around 5.30am. One witness looked across to the section and saw a white Honda Prelude there. The evidence from the pathologist was consistent with Ms Sutherland having been killed at that time. Ms Sutherland's body was naked when it was found. It was her practice to be naked when engaged in acts of prostitution. She sometimes had sex with clients at the Peterborough Street section where her body was found. All of this pointed to Ms Sutherland having been murdered by a client. Further, at the trial it was common ground that the appellant had had sex with Ms Sutherland on the night of 15/16 April 2005 and that this occurred at the Peterborough Street section, albeit that on the defence case this had occurred some time before 10.00pm on 15 April.
[4] The Crown case was that it was the appellant who picked up Ms Sutherland at around 5.00am on 16 April 2005. He owned a white Honda Prelude with a black stripe on it. There was a surveillance photograph of just such Honda Prelude at around 5.00am going along Armagh Street in the direction of Manchester Street. Ms A said that the white Honda Prelude that Ms Sutherland got into had a black stripe. Further, there was evidence that on the morning of 16 April, the appellant had
injuries to his face - injuries which were described by Crown witnesses as scratches. Material found under Ms Sutherland's fingernails contained DNA, which matched that of the appellant.
[5] The appellant's ownership of his white Honda Prelude made him a likely subject of police inquiry. As well, descriptions of the man who drove off with Ms Sutherland corresponded to the appellant's appearance. The evidence as to this last point became a little confused as it developed and it is helpful at this point to explain why.
[6] The evidence in question came from another sex worker, Ms H, and Mr Wayman whom we have already mentioned. Mr Wayman was acting as Ms H's minder. They were both on Manchester Street in the early hours of 16 April. Ms H was hassled on a number of occasions by a man who was driving a white Honda Prelude. Mr Wayman was present when that occurred and eventually chased the man off. He also saw Ms Sutherland get into a white Honda Prelude just after 5.00am. Initially the police view was that the man who had bothered Ms H was the murderer. The police obtained descriptions of him from Ms H and Mr Wayman which, at least generally, matched the appearance of the appellant. An indentikit picture was prepared which was a reasonable likeness of the appellant. But after Ms H and Mr Wayman saw the appellant at the preliminary hearing, they both concluded that he was not the man who had been causing problems for Ms H. This aspect of the case took another twist when Mr Wayman at trial said that person (ie the one who had hassled Ms H) was the person who drove off with Ms Sutherland and, further, that he believed that the appellant was that person. This was not a good fit for the evidence of Ms H who had had some previous interactions with the appellant and was confident that the man who had harassed her was not the appellant.
[7] We will mention this evidence later because Mr Taffs relied on it to some extent in his submissions. For present purposes, however, what is important is that in the immediate aftermath of the murder, newspaper publicity indicated that the police were looking for a man whose appearance matched that of the appellant and
who had been driving a white Honda Prelude car. The appellant plainly became aware of this publicity.
[8] The Crown argued that the appellant's behaviour in the aftermath of the murder was suspicious. According to the evidence relied on by the Crown:
(a)He changed his appearance by having his hair cut short and changing
his moustache.
(b) He went to particular efforts to clean his car.
(c)Having been spoken to by a police officer who examined the front
tyres of his car, he immediately bought two new tyres and disposed of
the tyres which had been on the car on the morning of the murder.
The possible significance of this is that tyre marks were found at the
scene of the murder. And(d)He sought to conceal his car by parking it behind the house in which
he was living and he subsequently used it on a very limited basis.
[9] On the Crown case, the appellant was in central Christchurch at the time of the murder. There was evidence from a Mr Bushell, a doorman at the Dolls House night club, suggesting that the appellant had twice tried unsuccessfully to obtain entry without paying the cover charge, with the second occasion being sometime after 4.00am. The appellant was later to claim that he had been at the Dolls House between 5.00am and 6.00am that morning, an alibi which was, on the Crown case, false. There was also evidence that the appellant arrived unexpectedly and for no obvious reason at the Bealey Avenue house of an acquaintance at around 6.20am. As well the Crown produced expert evidence in relation to the tyre marks found on the Peterborough Street section which appeared to be associated with the murder and could, on the Crown case, have been left by the appellant's car.
[10] Another very significant feature of the Crown case was that Ms Mara Lasei, with whom the appellant was boarding at the time of the murder, gave evidence that the appellant had admitted to her that he had killed Ms Sutherland.
[11] There is one other - and rather odd - aspect of the case which we should mention. Some personal effects and clothing of Ms Sutherland were found in and near a public lavatory in Addington Park. The Crown was able to show that the appellant's movements in the hours which followed the murder of Ms Sutherland gave him the opportunity to place her effects and clothing at Addington Park. Sometime later, however, remarks were scribbled on the cistern in the relevant lavatory cubicle which appeared to refer to the death of Ms Sutherland.
Ha Fucking Ha! Whose laughing Now Suzi?
This came to police attention on 3 May 2005. The Crown was not able to link the appellant to these remarks and, as a result, the Crown did not assert at trial that he wrote them. For instance, the appellant's denial in evidence of having written these words was not challenged in cross-examination. Counsel who appeared for the appellant had obtained a report from a handwriting expert which suggested that the appellant had not written these words. But she was not completely certain and indicated to counsel that, if asked in cross-examination, she would say that she could not exclude the possibility that the appellant did write them. As it turned out, she was not called to give evidence.
The defence case
[12] At trial, the appellant acknowledged picking up the deceased and having had sex (albeit incomplete) with her at the Peterborough Street section. He maintained, however, that this was in his car rather than on the ground (as the Crown alleged). He said that there was something of an incident between them when Ms Sutherland thought he had been going through her handbag and that this might have led to him suffering some injury (but not scratches) to his face. He also said that he had received a love bite. On his evidence, however, his interaction with Ms Sutherland occurred before 10.00pm on 15 April. He claimed that between 5.00am and 6.00am
he was at the Dolls House night club. He denied ever having admitted to Ms Lasei that he had killed Ms Sutherland.
There were a number of themes which were advanced by the defence:
(a)A suggestion that more than one man may have picked up the
deceased at just after 5.00am on 16 April. There was an element of
support for this in the evidence of one of the people who had heard
noises from the Peterborough section where Ms Sutherland's body
was later found and who thought that two or three people may have
been involved in the incident. As well, a taxi driver, a Ms Daly, who
twice picked up Ms A after she had seen Ms Sutherland for the last
time, recalled that Ms A had told her that Ms Sutherland had got into
a car with two men.(b)The suggestion that a person other than the appellant may have been
involved. In part this was based on the somewhat vacillating evidence
of Ms H and Mr Wayman. As well, there were suggestions that
Ms Sutherland had drug debts and these may have led to her being
murdered. Also of some possible relevance to this line of argument
was what was written in the lavatory at Addington Park.(c)The appellant maintained that there were genuine mechanical
problems with his car which warranted its limited use after the murder
and that he had had innocent reasons (in particular a desire to get rid
of the smell of alcohol) for cleaning the car.(d) He denied materially altering his appearance after the murder.
(e) He maintained that his Dolls House alibi was genuine.
(f)According to a defence expert, the Crown evidence as to the tyre
marks found at the scene was wrong and the tyre marks at the scene
were not left by the appellant's car. The reasons for this conclusion
were associated with the braking pattern and turning arc of the car which had left the tyre marks.
Was there an appropriate evidential basis for the verdict?
[14] In his submissions, Mr Taffs explored aspects of the evidence which he submitted were uncertain or which to some extent supported the case for the appellant. As is common in cases of this sort, there were puzzling and unexplained aspects to the evidence (for instance what was written in the lavatory at Addington Park) and conflicting recollections by critical witnesses, for instance as between Ms H and Mr Wayman and also as between Ms A and Ms Daly. So Mr Taffs was able to demonstrate there was inconsistent evidence on many of the key issues in the case and he was also able to show that there were counter-arguments to much of what the Crown alleged.
[15] We have only discussed in broad outline the cases as advanced by the Crown and the defence. We have not explained every aspect of the circumstantial case which the Crown relied on. What we have said, however, is enough to show that there was a more than adequate evidential basis for the jury's verdict. It seems clear that Ms Sutherland was killed by the man who picked her up at just after 5.00am on 16 April 2005 driving a white Honda Prelude car. Ms A described this car as having a black stripe along the sides. The white Honda Prelude car with a black stripe on it recorded by the security camera at just before 5.00am heading in the direction of where Ms Sutherland was picked up a few minutes later, matches the appellant's car in all material respects. On the evidence as a whole, including evidence from Mr Bushell, it was open to the jury to conclude that the appellant's alibi was false and that he was in central Christchurch at the time of the murder. The scratches on his face (as described by Crown witnesses) and the presence of his DNA under the deceased's fingernails suggested that the sexual interaction which occurred between him and the deceased may have involved some element of violence. There was ample evidence before the jury of suspicious behaviour on the part of the appellant after the murder. As well, and decisively for the purposes of this part of the case,
there was the evidence of Ms Lasei that the appellant had admitted killing Ms Sutherland.
This ground of appeal is dismissed.
Was there a miscarriage of justice associated with the admission of allegedly improperly obtained DNA evidence?
[17] The police obtained two DNA samples from the appellant. The first was obtained on 29 April 2005. It seems that the appellant was one of a number of men who owned white Honda Preludes and were asked to provide samples. It is not entirely clear whether police suspicions of the appellant at that time went any further than that, although the appellant's resemblance to the man who had been described by Ms H and Mr Wayman can hardly have gone unnoticed. The form which the police used to obtain the appellant's consent referred to the "Criminal Investigations (Blood Samples) Act 1995" instead of the "Criminal Investigations (Bodily Samples) Act 1995". As well, and equally insignificantly, a police communication to the ESR indicated that the sample was for elimination purposes rather than from a suspect. The appellant's DNA as obtained from the first sample corresponded to DNA associated with the offence, in particular DNA obtained from material found under Ms Sutherland's fingernails and on a condom found on the Peterborough Street section. Out of an abundance of caution, the police obtained a second sample from the appellant on 20 May 2005. The police officer concerned obtained the appellant's signature to a correct form (ie one that referred to Criminal Investigations (Bodily Samples) Act).
[18] At trial there was no challenge to the admissibility of the DNA evidence. The officer who took the second sample, however, was cross-examined on the footing that he had misled the appellant either by telling him that the purpose of the second sample was to eliminate him or alternatively (or perhaps as well) not indicating to him that his status had significantly changed (given that he, by 20 May 2005, was very much a prime suspect in relation to the murder). The police officer acknowledged, perhaps a little ambiguously, that he had led the appellant to believe
that the second sample was for elimination purposes. We say that the acknowledgement was a little ambiguous because the primary thrust of the police officer's evidence was simply that he told the appellant that the second sample was a replacement for the first (which he accepted had been primarily for elimination purposes) and he did not tell the appellant that he was now very much a suspect in relation to the murder.
[19] When he gave evidence at trial the appellant did not complain that he had been tricked into giving the second DNA sample. Indeed his position was that he wished to provide DNA for analysis because he wanted to know whether the prostitute he had had sex with that night was Ms Sutherland. On the other hand, in an affidavit sworn in support of the appeal, the appellant said this:
3.With regard to the second ground of my appeal against conviction had I
been informed that the real purpose of the second request for a DNA
sample by the Police was for a suspect sample to further the Police case
against me and to be used in evidence against me as opposed to simply
being for elimination purposes I would have declined consent to the
sample being taken.4.The police description about my true position in their inquiry and the
agenda regarding the true use of the sample denied me the right to
challenge their request in the High Court and deceived me into
providing incriminating evidence against my self [sic].
[20] The Crown wished to cross-examine the appellant on his affidavit. At the commencement of the hearing of this appeal, however, Mr Taffs indicated that the appellant would not submit to cross-examination. We indicated, in open court and in the presence of the appellant, that the consequence of this stance, if it were maintained, was that the appellant's affidavit would have either zero weight or very little weight. Mr Taffs wished to speak to the appellant again and we stood the case down to enable this to happen. The appellant, however, was adamant that he was not prepared to be cross-examined.
[21] We will revert to this point later when we come to deal with the third ground of appeal. For present purposes, it is sufficient to say that we are not prepared to accept, at face value, the passages in the affidavit which we have just set out, given that they are inconsistent with his evidence at trial.
[22] By late May 2005, the appellant must have known that he was a suspect in the inquiry. He nonetheless agreed to provide the sample. It was of some assistance to the appellant, when he gave evidence, to be able to say that he had voluntarily given DNA samples and that he had genuinely wished to find out whether it was Ms Sutherland he had been with that night. Had he refused to give the second DNA sample voluntarily in May, he would not have been able to portray himself at trial as having been co-operative. But such refusal would not have been of any assistance as the police could, and presumably would, have obtained a suspect compulsion order. Had the appellant sought (at or before trial) the exclusion of evidence associated with the second sample, this may have required some recasting of his evidence as to his level of co-operation. There thus may have been a tactical overlay to the course which was taken which provides an inauspicious context for the raising of this point on appeal.
[23] As well, we could not fairly resolve against the Crown on the evidence before us an admissibility issue in relation to the second sample. Mr Taffs was able, as we have indicated, to point to some acknowledgements made by the police officer concerned when he was cross-examined at trial which suggested that he had implied to the appellant that the sample was required for elimination purposes. As noted, there was some ambiguity to the evidence of the police officer. He was not invited to look at the forms which the appellant had signed which, in respect of both the first and second sample, identified that he was a suspect and, in relation to the second sample, identified the relevant offence as murder. Nor is there any credible evidence to suggest that the appellant was misled, given that we have put his assertions in his affidavit to one side in light of his refusal to be cross-examined and his inconsistent evidence at trial.
[24] In any event, one way or another the DNA evidence was always going to be placed before the jury:
(a) Had the appellant declined to give a second sample, it is inevitable that the police would have obtained a DNA sample by compulsion under the suspect compulsion procedure provided by the Act.
(b) There was, in any event, nothing wrong with the way in which the first sample was taken. That there was a typographical error on the form signed by the appellant is neither here nor there. Equally irrelevant is the way in which the form that went to the ESR was ticked.
All in all, we are satisfied that no miscarriage of justice arose from this aspect of the case.
Was there a miscarriage of justice associated with alleged incompetence of counsel?
[26] In the appellant's affidavit to which we have referred, the appellant made a number of allegations against his former counsel. In particular he complained about advice not to call three witnesses: the handwriting expert referred to in [11] above; a woman who had given but then retracted a statement suggesting that a particular criminal might have been a threat to Ms Sutherland; and Ms Lasei's son. He also maintained that there was a failure by his counsel to cross-examine Ms Lasei as to her credit along particular lines which were set out in his affidavit and involved an alleged fraud on WINZ.
[27] As we have noted, the appellant declined to be cross-examined on this affidavit. Mr Glover, however, provided an affidavit in response and he was cross-examined on it by Mr Taffs.
[28] Mr Glover was an impressive witness. He had prepared extensively for trial. We are well satisfied that he and his junior conducted the appellant's defence competently. Where the evidence of Mr Glover is in conflict with that of the appellant, we prefer his evidence. In particular, we accept his contention that key decisions as to the way in which the case was to be run were left to the appellant. We are satisfied that the advice that he gave was appropriate in the circumstances. There was no point in calling the handwriting evidence. The Crown did not allege that the appellant had written the relevant words on the lavatory cistern. If the handwriting
expert had been called as a defence witness and then conceded that she could not exclude the appellant as the writer, the case for the defence would have been damaged. The witness who had made a statement about a criminal being a threat to Ms Sutherland had retracted it. There was no basis for believing that she would revert to her original statement and the decision not to call her seems to us to have been sensible. Mr Taffs rightly accepted that to call her would have involved a high-risk strategy. There were benefits and risks associated with the calling of Ms Lasei's son and the appellant signed written instructions confirming that he was not to be called. Finally, we see no reason to doubt Mr Glover's evidence that the appellant never mentioned to him the allegation that Ms Lasei had engaged in a fraud on WINZ and there is thus nothing in the complaint that Ms Lasei was not cross-examined on this issue.
[29] In short, we are well satisfied that the appellant received competent representation and, further, that there was no other aspect to the way in which he was represented which could fairly be regarded as having given rise to a miscarriage of justice.
This ground of the appeal is dismissed.
[31] We add that the course taken by the appellant of swearing an affidavit but then refusing to be cross-examined on it is not to be recommended. Whatever the position as to the admissibility at common law of such an affidavit, this Court has a discretion under s 389 of the Crimes Act 1961 whether to accept evidence. In future cases, the Court is likely to refuse to accept an affidavit from an appellant who declines to be cross-examined.
Was there a miscarriage of justice associated with the trial Judge's directions as to out of court statements?
When the Judge was giving evidential directions he said:
[33] ... You will recall various witnesses had statements they had made earlier to the police put to them in cross-examination. Ms Lasei is one, and in particular the accused who was cross-examined at some length about the
contents of his statements to the police. What I say applies equally to statements made to the police during their investigations and to the formal depositions statements. Sometimes a previous statement is put to a witness to help him or her remember something that is thought to be helpful. More often such a statement is put to a witness to try to demonstrate that he or she has said conflicting things at different times about a particular topic and is therefore not credible or is unreliable about that topic generally. Whether any demonstrated inconsistencies affect your view of a witness's credibility or reliability is entirely a matter for you to assess. In either case, if the witness acknowledge that something said in an earlier statement is true, you can consider that as part of the evidence. But unless they are clearly acknowledged to be true, the contents of previous statements are not evidence which you should consider. In other words, the fact that the witness has previously said something inconsistent with the evidence they gave at trial may lead you to doubt or disbelieve that evidence. But the contents of the statement which a witness now says are incorrect are not evidence of the truth of a different series of events.
[33] This was a perfectly accurate account of the law. Mr Taffs, however, was concerned that it was unfair to the appellant. This concern was primarily referable to the evidence of Ms Daly as to what she had been told by Ms A. We have mentioned this point already but it requires a little more elaboration.
[34] It will be recalled that Ms A's recollection was that she had seen one person in the white Honda Prelude when Ms Sutherland got into it just after 5.00am. On the other hand, Ms Daly, a taxi driver who spoke to Ms A not long afterwards, said that she could recall Ms A telling her that her friend had got into a car with two men. Ms A, who was recalled to be cross-examined about Ms Daly's evidence did not shift from the position that she could recall seeing only one only one person in the car when Ms Sutherland got into it. She did say, however, that there had been an earlier incident that morning when a car with a number of men in it had approached Ms Sutherland and had been sent away.
[35] Mr Taffs' position was that the jury should have been told that the evidence given by Ms Daly could be treated as direct evidence that there were two men in the car when Ms Sutherland got into it.
[36] This argument illustrates some of the difficulties that can arise with hearsay evidence. The cogency of the hearsay evidence (ie the remarks which Ms Daly attributed to Ms A) depends upon the accuracy of Ms Daly's recall and is, of course,
affected by the possibility that somehow she and Ms A (who had earlier seen an incident between Ms Sutherland and a car with more than one man in it) may have been at cross purposes. A factor which conceivably may be of some significance is that Ms A had taken heroin that night.
[37] When the Judge came to sum up on this aspect of the evidence, he did so neutrally and without reference to the hearsay rules:
[51] Ms A gave evidence that she saw Ms Sutherland get into a white Honda Prelude and she was adamant about the vehicle ... She also said there was only one person in the car and gave evidence of Ms Sutherland refusing earlier in the night to get into a vehicle that had more than one male in it.
[52] The defence points to the evidence of the taxi driver, Ms Daly, who recalled a discussion with Ms A about her friend and Ms A said she got into the vehicle with two men. The defence also pointed to the fact that Ms A had been taking drugs that night.
[38] The earlier hearsay direction was confined to previous statements made to the police. So the Judge did not explicitly tell the jury that Ms Daly's evidence was relevant only to the extent to which it impeached the credibility or reliability of Ms A's evidence.
[39] In any event, there is not a great deal of difference between the evidence of Ms Daly being used legitimately to impeach Ms A's contention that she saw only one person in the car as opposed to being affirmative evidence that there was or may have been more than one male in the car. After all, if Ms A was wrong in saying that she saw only one person in the car, it follows that there must have been two or more people in it.
[40] In short, we are satisfied that the direction which the Judge gave was correct as far as it went. He could have directed the jury to treat Ms Daly's evidence as hearsay and relevant only to the extent that it impeached the evidence of Ms A. Had he done so this would have been correct as a matter of law. The course taken by the Judge was thus, if anything, favourable to the appellant. Further, the distinction between the use of Ms Daly's evidence for impeachment purposes and the use of her evidence for the purpose of showing that there was, or may have been, more than
one person in the car is so slight as to be of insufficient materiality to warrant the conclusion that there was a miscarriage of justice.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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