The Queen v Clayton

[2008] NZCA 523

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/2008
[2008] NZCA 523

THE QUEEN

v

CAROL MAY CLAYTON

Hearing:13 October 2008

Court:O'Regan, Potter and Fogarty JJ

Counsel:C W J Stevenson for Appellant

G J Burston and C J Boshier for Crown

Judgment:3 December 2008 at 3 pm

JUDGMENT OF THE COURT

A        An extension of time within which to appeal is granted.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mrs Clayton was convicted after a High Court jury trial of the murder of Joan Betti, the attempted murder of Judith Betti and the attempted murder of Latisha Owens.  She had previously pleaded guilty to arson of a house at 50A Thackeray Street, Upper Hutt and to threatening to do grievous bodily harm to Latisha Owens.  Her two co-accused, Richard Pearce and Nicholas Edgarton were convicted of the manslaughter of Joan Betti.  At trial, Mrs Clayton’s counsel had argued that she should have been found guilty of manslaughter, not murder, (and not guilty of attempted murder) because she did not have a murderous intent.

[2]       Mrs Clayton seeks an extension of time to appeal against her convictions for murder and attempted murder.  Her notice of appeal was filed well after the expiry of the appeal period, but the delay was explained and the Crown did not object to an extension being granted.  We therefore grant an extension of time to appeal until the date on which Mrs Clayton’s notice of appeal was received by the Court.

[3]       Counsel for Mrs Clayton, Mr Stevenson, pursued three grounds of appeal.  These were all based on alleged misdirections by the trial Judge, MacKenzie J, in his summing up.  The alleged misdirections related to:

(a)The approach to be taken to a statement made by Judith Betti at an earlier trial, which had been aborted;

(b)The relevance of the mental state of Mrs Clayton;

(c)The attack made by Mrs Clayton’s trial counsel (not Mr Stevenson) on the tactics adopted by the police when interviewing Mrs Clayton. 

[4]       We will deal with these grounds of appeal in the above order.  But before doing so, we set out a brief summary of the background to the appeal.

Background

[5]       The charges faced by Mrs Clayton arose from an incident that occurred in the early hours of 3 September 2005, when the house at 50A Thackeray Street was fire-bombed with two molotov cocktails.  The molotov cocktails were thrown through a window in the house by Mr Pearce and Mr Edgarton, Mrs Clayton’s co-offenders.  They were aged 20 and 19 respectively at the time of the offences, and boarded with Mrs Clayton.  Mr Pearce had made the molotov cocktails.

[6]       The background to this incident was that Mrs Clayton had formed the view that her partner, David Betti, was having affairs with both Judith Betti and Latisha Owens.  Judith Betti and Latisha Owens both lived at the Thackeray Street house, along with Judith Betti’s mother, Joan Betti, Judith’s partner George Kotuhi and Judith’s two sons.  Latisha Owens is Judith Betti’s niece. 

[7]       On the night of the fire-bombing incident, all of the residents of the Thackeray Street house, apart from George Kotuhi, were at home.  Mr Kotuhi was at the home of Judith Betti’s brother at Taita.

[8]       The molotov cocktails had deadly effect.  The house was engulfed in fire.  Joan Betti, who was elderly and had restricted movement, was unable to escape from the fire.  It was accepted at trial that she died as a result of carbon monoxide poisoning which resulted from the fire.  All of the others who were in the house managed to escape.

[9]       The Crown case was that Mrs Clayton planned the fire-bombing for the purpose of killing Judith Betti and Latisha Owens.  She engaged the assistance of Mr Pearce and Mr Edgarton.  On the night in question she drove Mr Pearce and Mr Edgarton to Thackeray Street, and they threw the molotov cocktails into the house.  Mrs Clayton had told Mr Pearce and Mr Edgarton shortly before the fire-bombing that nobody would be present in the house that night.  The Crown case was that, in fact, Mrs Clayton knew that Judith Betti and Latisha Owen would be at the house at the time of the fire-bombing and that her intention was that they should die in the fire.  The charge of the murder of Joan Betti was pursued on two alternative bases, namely transferred malice (s 167(c) of the Crimes Act 1961) and an unlawful act known to be likely to cause death (s 167(d)). 

[10]     It is clear that the jury convicted on the basis of transferred malice, because the verdicts on the attempted murder charges indicate that the jury found that Mrs Clayton intended to kill Judith Betti and Latisha Owens.  This was noted by the Judge at sentencing.  The verdicts of manslaughter in relation to Mr Pearce and Mr Edgarton indicate that the jury accepted that neither knew that anyone was home at the time of the fire-bombing and that they had therefore been misled by Mrs Clayton in that regard.  The jury must have found that the Crown had not proved to the requisite standard that Mr Pearce and Mr Edgarton did, in fact, know that there were people home at the time of the fire-bombing.

[11]     A key issue at the trial was whether Mrs Clayton knew that somebody would be home when the fire-bombing occurred.  The defence case was that Mrs Clayton believed that nobody would be home because it was Judith Betti’s birthday, and the residents of 50A Thackeray Street would be at Judith Betti’s brother’s house at Taita to celebrate her birthday.  It was also contended that Mrs Clayton understood that Joan Betti was to have moved to the home of another of her daughters who lived in the Wairarapa. 

[12]     There were a number of difficulties for the defence in pursuing this line, however.  When she was interviewed by the police, Mrs Clayton said that she knew that Latisha Owens and Judith Betti would be at home on the night of the fire and that she intended to kill them.  The defence sought to persuade the jury that this was a false admission brought about by the manner of questioning of the police officer and Mrs Clayton’s frail mental health, medication which had the potential to distort her memory and her general vulnerability.  The defence pointed to other matters which Mrs Clayton had said during the interview which could be shown to be confused or wrong.

[13]     At the time that the preparations were being made for the fire-bombing, Toni-Leigh Morecraft and Chelsea Jackson were present at Mrs Clayton’s house.  It was they who eventually approached the police and informed them that the fire had not been accidental (the initial investigations had not revealed anything suspicious).  They were present when the molotov cocktails were being made by Mr Pearce.  Miss Morecraft said that Mrs Clayton had told her that nobody was supposed to be home when the fire-bombing was to occur because they would be at Judith Betti’s brother’s place for Judith’s birthday.

[14]     After the fire-bombing, Mrs Clayton, Mr Pearce and Mr Edgarton returned to Mrs Clayton’s home.  They listened to a police scanner to hear the communications relating to the response of emergency services to the fire.  While they were doing this Judith Betti phoned to tell Mrs Clayton that Joan Betti had died.  This led to Mr Pearce and Mr Edgarton confronting the appellant with her assurance that nobody was to be home.  She was said to have responded that they were all supposed to be at Judith Betti’s brother’s place.

Alleged misdirection on previous statement of Judith Betti

[15]     Mr Stevenson argued that the approach which the Judge told the jury to take to a statement made by Judith Betti at the first trial, which she did not confirm at the second trial, was wrong and unfair. 

[16]     At the first trial, Judith Betti gave evidence that she had told Mrs Clayton on the evening of the fire-bombing that she was taking her partner George to her brother Kevin’s place on the night of the fire-bombing.  At the second trial she denied this.  The answer she had given at the first trial was put to her.  She denied telling Mrs Clayton this, and said she could not remember having been asked that question at the earlier trial.  She was asked to read the relevant portion of the transcript from the first trial, after which she said:

Honestly I did not ring Carol [Mrs Clayton] on Friday on my birthday and I did not say I was taking George to my brother’s house on that day.  I swear.  That’s the truth I’ll swear on my mother’s grave.

[17]     The trial Judge directed the jury that they could not rely on what Judith Betti had said at the first trial in assessing whether Mrs Clayton knew that anybody would be in the house, since the statement Judith Betti made at the earlier trial was relevant only to her credibility.  His precise words were:

What Judith Betti said earlier is not evidence at this trial.  She did not accept, at this trial, that the evidence she had given at the previous trial on that issue was accurate.  Because she did not accept, at this trial, the accuracy of that previous evidence, the previous evidence is not evidence for you of the truth of that earlier evidence.  You must decide, on the basis of the evidence you have heard at this trial, whether you are satisfied that Carol Clayton knew that it was likely that someone would be home at 50A Thackeray Street at the time the molotov cocktails were thrown.

[18]     Mr Stevenson said that this was crucial from the defence’s point of view because Miss Morecraft and Miss Jackson had given evidence that Mrs Clayton had told Mr Edgarton and Mr Pearce just prior to the fire-bombing that there would not be anybody at the Thackeray Street house because it was Judith’s birthday and they were all supposed to be at Judith’s brother’s house.  He said that the fact that Mr Pearce and Mr Edgarton were acquitted of murder indicates that the jury considered that Mrs Clayton knew that Judith Betti and the others would be at home and had misled her co-accused.

[19]     Mr Stevenson said that the direction was wrong according to the law applicable at the time of the trial and would be wrong by an appropriate retrospective application of the Evidence Act 2006.  The trial took place in March 2007, some months before the Evidence Act came into force.

[20]     The former submission is confronted by the clear terms of the decision of this Court in R v Carrington [1969] NZLR 790 to the effect that, unless a witness adopts a prior statement as the truth, the prior statement is not evidence. It is relevant to the assessment of the credibility of the witness, but is not evidence of the truth of what was said on the prior occasion. Mr Stevenson argued that Carrington should not apply where the prior statement was given at a previous trial, and thus on oath and subject to cross-examination.  He cited Canadian authorities in support of this proposition: R v Henry [2005] 3 SCR 609 and R v B(K.G) [1993] 1 SCR 740. He added:

The mantra that “all previous inconsistent statements can only be relevant to credibility” does not bear scrutiny in light of the line of authority dealing with a principled approach to the admission of hearsay evidence, commencing with R v Bain [1995] 13 CRNZ 684 [(CA)], and culminating in R v Manase [[2001] 2 NZLR 197 (CA)].

[21]     He submitted that if the Judge had properly turned his mind to:

… the real issues to be considered (circumstances in which the previous statement was taken, indicia as to reliability, previous opportunity to examine the witness etc), the jury would have been given the opportunity to rely on what Judith Betti said originally, in assessing the appellant’s claim she did not know anybody would be at the house. 

He said that the Judge’s direction had “effectively deprived the appellant of her right to present a defence”.

[22]     We reject this argument.  The direction given by the Judge was in accordance with the law applying at the time, as stated in Carrington.  He was not asked to give a direction in different terms.

[23]     Mr Stevenson also suggested that the Judge should have retrospectively applied the Evidence Act.  He said that if the trial had taken place after the Evidence Act applied, the statement made by Judith Betti at the first trial could have been offered as evidence of the truth of that statement.  He said that the Evidence Act provision recognised “that the old common-law rule was irrational, unprincipled and prejudicial to the proceedings”.  He added “it would be iniquitous for the appellant not to be given the benefit of this new principled rule”.

[24]     As noted earlier, nobody asked the Judge to anticipate the passing of the Evidence Act.  Even if they had, it was not open to the Judge to apply a law that had not come into force.  We therefore reject this aspect of Mr Stevenson’s submission also.

[25]     We should add that we do not share Mr Stevenson’s view that the evidence given by Judith Betti on this topic at the first trial would have had quite the significance he attributed to it if it had been allowed in as evidence of its truth at the second trial.  What she said at the first trial was that she had told Mrs Clayton that she was taking her partner to her brother’s house.  From this, Mrs Clayton could have concluded that the partner would not be home.  It could not be inferred with certainty that Judith herself would not be home for the evening.  And, of course, there was no reference to the deceased, Joan Betti, or to the three other occupants of the house.  Judith Betti did not say that nobody would be home, or even that she herself would not be home.  She was not asked in cross-examination at the first trial whether she had told Mrs Clayton that no-one would be home.  She specifically denied (at both trials) that any arrangement had been made for Joan Betti to move to the Wairarapa.

[26]     It is, as Mr Burston for the Crown contended, drawing something of a long bow to suggest that the evidence was as crucial as Mr Stevenson suggested it was.  As Mr Burston correctly pointed out, there was no proper evidential foundation from what was said by Judith Betti at the first trial from which Mrs Clayton could contend that she believed that no-one was present at the house shortly before 2 am on Saturday morning when the fire-bombing took place.

[27]     Mrs Betti’s statement also has to be seen in the context of the trial as a whole.  The problem for Mrs Clayton was that she had clearly admitted in her police interview that she knew that Judith Betti and Latisha Owens would be present at the house.  She admitted that she intended that they should be killed by the fire that would result from the fire-bomb.

[28]     Mr Stevenson also suggested that it was necessary in this case to relax the hearsay rule applying at the time in order to provide Mrs Clayton with the right to present a defence, a right guaranteed to her by s 25(e) of the New Zealand Bill of Rights Act 1990.  He said the fact that the statement made by Judith Betti at the first trial could not be used in assessing the reasonable possibility that Mrs Clayton believed nobody would be at home on the evening of the fire stood in the way of a legitimate and effective defence.  We reject that contention: what stood in the way of a successful defence was the strong Crown case against her, particularly her clear and repeated admissions in her statement to the police of her knowledge that her intended victims would be at the house at the time of the fire-bombing.

[29]     We are satisfied that no miscarriage occurred in this case.  The direction given by the Judge was legally correct and the point does not have the significance which counsel seeks to attribute to it.  This ground of appeal fails. 

Did the Judge misdirect on Mrs Clayton’s mental state?

[30]     The focus of this aspect of the appeal is the direction given by the Judge that the jury had to approach the matter on the basis that Mrs Clayton was sane and responsible for her actions, and that her mental state did not provide any justification or excuse for her actions.  Mr Stevenson acknowledged that these directions were given alongside a number of other directions, including directions to the effect that Mrs Clayton’s emotional state and medication were relevant in considering whether she formed an intention to kill Judith Betti and Latisha Owens, and also relevant when considering the reliability of the statement she made to the police in which she made the damaging admissions. 

[31]     He said that these favourable directions were overshadowed by the statements which he criticises.  Those statements, he said, deflected the focus away from the effect of the medication Mrs Clayton was taking at the time of the interview and her general mental health (she had recently been released from a mental health facility).  He said that Mrs Clayton was taking medication prescribed for depression anxiety and psychoses, which could have affected cognition and memory, and was also taking medication which could cause loss of memory including amnesia. 

[32]     He accepted that, later in his summing up, the Judge did refer to the defence contention about the effect of the medication on Mrs Clayton’s memory and on the statements made in her police interview.  But he said that the preceding comments had “effectively closed this defence submission off”.  He described the Judge’s directions as “belittling” the defence contention that Mrs Clayton’s mental state and medication were highly relevant in assessing whether or not the admissions she made in her police statement were actually true. 

[33]     With respect to Mr Stevenson, we consider that this submission misrepresents the overall tenor of the Judge’s summing up.  It was important that the jury was not distracted by a mistaken impression that a defence of insanity was available, and the statements for which the Judge is criticised were legally correct and appropriate in the circumstances.  We do not accept that they overshadowed the Judge’s representation of the defence contentions.  This ground of appeal also fails.

Did the Judge misdirect on police tactics during Mrs Clayton’s interview?

[34]     The essence of this point was that the Judge’s direction to the jury about the defence contention that Mrs Clayton’s admissions in her video interview were unreliable because of manipulative tactics by the police was unfair.

[35]     The background to this was that the defence tried to have the video interview excluded as evidence at the trial, on the basis that Mrs Clayton had said she wanted to contact a lawyer and that the interview should have been stopped at that point.  The ruling of Miller J to the contrary (HC WN CRI 2005-078-1785 22 August 2006) was upheld on appeal to this Court (CA302/06 20 October 2006).  In essence, both Courts were satisfied that, after the police officer’s attempt to contact Mrs Clayton’s lawyer failed, Mrs Clayton decided to proceed with the interview without counsel, thus waiving her right to counsel.  A further challenge was mounted before the second trial, but Ronald Young J ruled against Mrs Clayton on this as well: HC WN CRI 2005-078-1785 7 February 2007.

[36]     During the trial, defence counsel put it to the police officer who had interviewed Mrs Clayton that he should have suspended the interview when Mrs Clayton said she wished to speak to a lawyer.  There was objection to this from the Crown following which the Judge made a ruling that the proposition put to the officer by the defence counsel was inconsistent with the ruling of Miller J and of this Court.  In response to that ruling, Mrs Clayton’s trial counsel indicated that he would cross-examine on the series of steps taken during the interview after the unsuccessful attempt to contact Mrs Clayton’s lawyer, which led to a further ruling by the Judge that, as a result of this, it was likely that it would be necessary to make a specific direction to the jury in respect of the manner in which the statement had been taken.

[37]     Trial counsel was also critical of the police in his closing address.  He stated that when Mrs Clayton asked for a lawyer, instead of suspending the interview immediately, the police continued with it. 

[38]     The direction ultimately given by the Judge was in these terms:

There are rules which the police must follow in interviewing suspects.  If those rules are not followed, statements made by an accused person will not be admissible as evidence.  I need not elaborate on what the rules are, as they are not relevant to you.  The statement is admissible as evidence.  [Trial counsel] suggested in cross-examination of Detective Orr that he should have ceased the interview when legal advice was requested, and the legal advisor not available.  That is not the case.  Mrs Clayton’s statement is admissible, and you have heard it.  So you should not refuse to consider this statement because you think that the rules as to taking statements may not have been followed.  You should not be distracted by that.  Her statement is part of the evidence for you to consider.

[39]     Mr Stevenson argued that the cross-examination and defence closing were directed to the reliability of the statement rather than its admissibility.  He said that the direction by the Judge “effectively jettisoned the defence case regarding the appellant’s statement” and “rendered the police conduct inscrutable, and the defence submission untenable”.  He said that the defence had not argued that the jury should ignore the interview because it continued after Mrs Clayton sought legal advice.  Rather, he said the aim of trial counsel was to convince the jury that the statement was an example of “subtle and skilful manipulation of the process by the police, which ultimately, resulted in a false admission”.

[40]     We do not see anything in this point.  The Judge was entitled to conclude that it was necessary to give the direction so that the jury was not left without guidance on the legal position relating to the admissibility of the statement, and we do not see the terms of the direction which he made as being unfair or unduly severe.  Mr Stevenson focused on the last sentence of the Judge’s direction (“Her statement is part of the evidence for you to consider”), but that is simply a statement of fact.  As with all other evidence, the weight to be given to the statement was, of course, for the jury, as had been stated in earlier directions.  This ground of appeal also fails.

Conclusion

[41]     We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington