The Queen v Cockburn

[2008] NZCA 463

IN THE COURT OF APPEAL OF NEW ZEALAND

CA531/2008
[2008] NZCA 463

THE QUEEN

v

BEVIN WILLIAM COCKBURN

Hearing:21 October 2008

Court:Baragwanath, Priestley and Venning JJ

Counsel:A J Haskett for Applicant

K Raftery for Respondent

Judgment:4 November 2008 at 11.30am

JUDGMENT OF THE COURT

The leave application is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Application for special leave

[1]       The applicant applies under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court.  His application for leave to appeal has been refused by the High Court.

[2]       This Court may grant special leave if it is of the opinion that the question of law involved is one of general public importance or which, for any other reason, ought to be submitted to this Court for decision.

Prior history

[3]       The applicant was convicted on charges of burglary and converting a truck in August 2007.  Those convictions were entered at the end of a trial in the Manukau District Court, presided over by Judge Burnett, sitting in the Court’s summary jurisdiction.  The Judge delivered a carefully reasoned oral decision, the transcript of which spans 10 pages and 33 paragraphs, giving the reasons why she was satisfied guilt had been established beyond reasonable doubt.

[4]       The applicant exercised his right of a general appeal.  This was heard in the High Court at Auckland by Lang J on 3 June 2008. 

[5]       To resolve one of the points raised on appeal the Judge directed that the District Court’s documentary exhibits were to be made available for him and counsel to view.  The specific focus of this direction, mentioned later (below at [15]), was a diagram depicting the area from which the applicant’s fingerprint was taken.  Lang J’s reserved judgment of 30 June 2008 dismissed the appeal.

[6]       The applicant then sought leave from Lang J to appeal to this Court.  The Judge dismissed the leave application on 8 August 2008.

Background

[7]       We briefly set out the factual background.  The two charges the applicant faced arose out of night time offending in January 2006.  The applicant had been employed as a driver for the victim, a transport company, which had a depot in Waiuku.  On the night in question a thief used a hidden key to gain entry to a storage area on the premises.  Truck oil from 40 gallon drums was pumped into empty containers.  The containers were then loaded on to a light truck, parked in the victim’s yard, and removed from the premises.  The truck was returned to the depot a short time later.  The issue at trial was identity.

[8]       Much of the offending was recorded by security camera.  The offender kept his face hidden throughout and avoided looking in the direction of the cameras, particularly an inside camera, which suggested he might well have been aware of the cameras’ positions.

[9]       The offender was identified as the applicant from security camera film by the owner and general manager of the transport company.  His evidence, amongst other things, included strong reasons as to why he was able to identify the applicant accurately.  He also referred to a previous occasion when, at night but legitimately, the applicant had entered the premises.  On that occasion the applicant had initially denied entry but was then confronted with security camera footage which clearly showed him on the premises.

[10]     In addition to the identification evidence a fingerprint of the applicant was detected on the outside of the driver’s side cab door of the truck.  Although, according to the summary of facts, the applicant was initially unable to provide an explanation for the presence of his fingerprint, in evidence that he subsequently gave at his trial he said that, on some uncertain date before the offending, he had spotted a friend of his sitting in the cab of the parked truck.  He had walked across the road and leaned against the door to chat.

Discussion

[11]     It is unnecessary to canvass the reasons which led Lang J to dismiss the appeal.  We focus instead on the questions of law raised by the applicant in the High Court as grounds for leave to appeal to this Court.  Those were:

·     Erroneously applying provisions of the Evidence Act 2006 during the course of the District Court trial when the trial had begun before that statute was in force.

·     The admissibility of a spreadsheet relating to the use, movements, and washing of trucks owned by the transport company.

·     The admissibility of a scene fingerprint form.

·     The admissibility of “non-expert evidence” of a police officer.

·     Failure to consider and deal with defence evidence.

[12]     Lang J rightly considered the first two points overlapped.  At trial the applicant’s counsel had raised with Judge Burnett the issue of a spreadsheet being produced by the victim’s general manager when he was not in fact the author of the document.  It had been created by another employee.  Judge Burnett asked counsel whether she had read “the new Evidence Act at all”.  She then suggested counsel might like to consider the matter during the adjournment.  After the adjournment the spreadsheet was produced.  There was no objection.  Indeed, counsel proceeded to cross-examine the witness on aspects of the spreadsheet.

[13]     Lang J accepted, on the basis of this Court’s judgment in R v Tafiti CA490/97 19 March 1998, that failure to object to inadmissible evidence was not fatal on an appeal on an admissibility point.  However, he noted that counsel at trial had chosen to cross-examine the witness on the spreadsheet.  As a result any objection to the document’s production had been waived or abandoned.  Thus the admissibility of the spreadsheet, in those circumstances, did not constitute an arguable point of law.  An alternative analysis of the issue would be that, rather than waiving an admissibility objection, by cross-examination, counsel had put into evidence those parts of the document on which there had been cross-examination, or indeed the whole document.  (See generally R v Gutuama CA275/01 13 December 2001; Walker v Walker (1937) 57 CLR 630 (HCA).) But in any event the document here, as we have said, had been produced.

[14]     The applicant’s next point was that Constable McKenzie, the police officer who both lifted the applicant’s fingerprint and created the scene of crime fingerprint form, did not confirm in evidence that he was the creator of the form.  It was instead produced by a fingerprint officer, Mr van der Westhuizen. 

[15]     At the appeal hearing Lang J had viewed the relevant exhibits and had given counsel the opportunity to comment.  Apart from admissibility issues he considered whether the applicant’s fingerprint was pointing downwards on the cab door (consistent with the print being left when the applicant was inside the cab with his right hand outside the door) or was instead pointing upwards, which arguably might have been consistent with the print being left when the applicant was outside the cab leaning up against the door.

[16]     The Judge, in his leave judgment, considered there was no doubt on the issue and there was ample evidence to confirm that the document produced by Mr van der Westhuizen was the same document prepared by Constable McKenzie on 20 January 2006 and sent to the police fingerprint section. 

[17]     The trial transcript, in our judgment, allows no other conclusion.  Constable McKenzie’s evidence in chief states that he placed the lifted fingerprint into an envelope, labelled it and forwarded it to the fingerprint section accompanied by a completed scene of crime form (which contained a diagram of the cab door with an arrow showing the direction in which the print was lifted).  There was no challenge to that evidence at trial.

[18]     The other witness was Mr van der Westhuizen who read his brief as evidence in chief and then produced the fingerprint lift and the fingerprint form.  His evidence in chief stated he had received these exhibits on 9 February 2006.

[19]     The next point of law advanced by the applicant before Lang J was whether Judge Burnett had placed “inappropriate weight” on Constable McKenzie’s evidence which was that the fingerprint had been left on the cab door only recently before it was detected and lifted.

[20]     Lang J considered the trial judge was entitled to place some reliance on the witnesses’ evidence because of his past experience as a scene of crime officer.  He observed, and again correctly, that the Judge had not relied solely on Constable McKenzie’s evidence.  Rather she had undertaken her own analysis.  On this point, particularly given discussions this Court had with counsel on the significance of the fingerprint exhibits and the orientation of the lift, we observe that the print’s orientation was not a matter before the trial judge at all.  Instead she accepted Constable McKenzie’s evidence on the age of the print by observing that the truck was housed outside and that it had been used on seven days before the offence on a number of journeys, some of which were quite lengthy.  There was also evidence of the truck being washed.  These matters in combination satisfied the Judge the applicant’s fingerprint was of recent origin.

[21]     Lang J rejected the applicant’s final question of law that the trial judge had failed to consider and deal with the defence evidence.  This was a correct assessment in our judgment.

Discussion

[22]     Mr Haskett’s submissions to us effectively repeated the submissions made on the applicant’s behalf to Lang J on the admissibility of the spreadsheet and the fingerprint evidence. 

[23]     We see no reason to differ from the conclusions of Lang J in either his appeal judgment or his judgment refusing leave.  The spreadsheet, setting out details of the use and washing of various trucks, was certainly not prepared by the witness who produced it.  However, not only was no objection taken (not in itself fatal to an appeal point) but there was also some significant cross-examination on its contents by counsel.  In our judgment any inadmissibility objections were thereby waived.

[24]     Nor is there anything to suggest that Judge Burnett’s erroneous reference to the relevance of the Evidence Act 2006 deflected or influenced trial counsel in this area.

[25]     Nor, in the circumstances we have outlined, do we see any error in Lang J’s approach to the admissibility of the two fingerprint exhibits or the evidence of Constable McKenzie.  The evidence of the two fingerprint witnesses in combination make it clear that the 20 January 2006 lift was what Mr van der Westhuizen received and compared.

Result

[26]     It is well established that leave for a second appeal will not be granted simply to give an appellant a second opportunity to repeat appeal points which have already failed.  As stipulated in s 144(3) this Court has power to grant special leave if questions of law are involved which are of general or public importance.  That threshold is not crossed here.  Nor indeed do we consider there is any other reason why leave should be granted.  We can see no error in either the District Court’s judgment or in the determination of the appeal.

[27]     For these reasons the leave application is declined.

Solicitors:
Crown Law Office, Wellington