The Queen v Coutts

[2009] NZCA 347

IN THE COURT OF APPEAL OF NEW ZEALAND

CA54/2009
[2009] NZCA 347

THE QUEEN

v

BRENT JOHN COUTTS

Hearing:27 July 2009

Court:Hammond, Ronald Young and Simon France JJ

Counsel:K H Cook and A J Bailey for Appellant

S B Edwards and B Hawes for Crown

Judgment:6 August 2009 at 4 pm

JUDGMENT OF THE COURT

A        An extension of time to appeal is granted.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       During the course of his trial on receiving charges in August 2007, Mr Coutts pleaded guilty to eleven counts in the indictment.  After his guilty plea the trial Judge, Judge Crosbie, discharged him on a further eleven counts of receiving.  Sometime after his sentencing on 21 September 2007, information came to light which established that L, a witness at the trial, had been offered a sentencing inducement to give evidence at the appellant’s trial.

[2]       Subsequently, this Court in R v Machirus [2008] NZCA 477, R v Clayton [2008] NZCA 493 and R v Westbury [2009] NZCA 104 allowed appeals against conviction by co‑accused (who were found guilty by a jury) because a miscarriage of justice had arisen from the non‑disclosure to the jury, counsel for the accused, and the trial Judge of the circumstances of the inducement offered to L.

[3]       The appellant submits that the principles identified in Machirus should apply to him, despite his guilty pleas, and his convictions should be set aside and a retrial ordered. 

[4]       Mr Coutts is well out of time for the filing of this appeal.  He therefore seeks an extension of time within which to file the appeal.  The Crown does not oppose the granting of an extension.  Given the circumstances and the modest delay in filing his appeal subsequent to the release of the Machirus decision we grant an extension of time to file his appeal.

Background facts

[5]       The appellant was one of eleven men who faced trial involving allegations of large scale commercial burglaries and the subsequent receiving of stolen goods in Christchurch.  The Crown case was that L broke into partially constructed houses around Christchurch and stole whiteware.  The two main receivers were said to be Mr Clayton and Mr Machirus.  The accused was alleged to have assisted Mr Clayton by picking up and storing some of the stolen goods and also to have directly received stolen items from L.  The police investigation regarding the appellant was brought to a conclusion when the appellant was stopped driving a Toyota truck converted into an ice truck.  The truck had stolen items in the back, which gave rise to three of the eleven counts to which the accused pleaded guilty.  The property relating to the other eight receiving counts to which he pleaded guilty was found at the appellant’s father’s address (in five counts and partly a sixth count), at the appellant’s work address (two counts), and at a friend’s address (one count).

The Machirus Decision

[6]       This Court in Machirus said in identifying the background to the appeal:

[2]       His principal ground of appeal against conviction is that the trial miscarried, essentially because information about an inducement to a critical Crown witness, L, namely a discount in sentence, which was advised in a sentencing indication given by Judge Radford prior to the trial in which L gave evidence, was not conveyed to defence counsel nor to the trial Judge.

[3]       The Crown case was that L was a burglar who stole valuable property from partly built houses in and around Christchurch. L then onsold this stolen property to Mr Clayton and to the appellant, Mr Machirus. L was the thief/burglar and the appellant and Mr Clayton were in partnership as receivers. The Crown case was that it was a large-scale commercial burglary/receiving ring.

[4]       L had originally been charged jointly with the other accused. In April 2005 he had entered pleas of guilty to 18 counts of burglary, four of theft, five of receiving and one of converting a motor vehicle. When he was sentenced on these charges he was given credit for his guilty pleas but also for:

“ … the assistance to the police which led to many additional charges being laid. ”

[5]       The trial the subject matter of this appeal was the second trial. L gave evidence at the first trial on behalf of the Crown. There he was cross-examined closely on the assistance he gave to the police and in particular his motivation to lie.

[6]       Between the first and second trial L committed a number of further offences. Mr Machirus and Mr Clayton applied to the Court to exclude his evidence at the retrial but this application was dismissed by the Judge. At the time of the application, L was awaiting sentence on 15 charges to which he pleaded guilty. One of those charges pre-dated the first trial and was a charge of assault on a female, emanating from Christchurch. The remaining charges were laid after the first trial and emanated from Wellington and Lower Hutt. They included dangerous driving, driving with excess blood alcohol, driving while disqualified, two charges of burglary, receiving property and theft, and four other dishonesty charges. L was due to be sentenced in Wellington on 28 August 2007, that is immediately after giving evidence in this, the second trial.

…

[8]       On the morning of the hearing of the application to exclude L's evidence at the retrial, the prosecutor provided a letter by way of disclosure to defence counsel and Mr Machirus, who was conducting his own defence. A copy was provided to the trial Judge, Judge Crosbie. The text of the letter is as follows:

…

[7]       Judge Radford had given a sentence indication to L relating to the charges identified at [6] of Machirus.  The letter that the prosecutor gave to counsel and the Court involved in this trial quoted from Judge Radford’s sentencing indication remarks.  The quoted section seemed to say that L had received no advantage in the sentencing indication for his recent offending arising from his intention to give evidence at the second trial.  That was the understanding which counsel and the Judge then proceeded with throughout the trial.

[8]       However, the full remarks of Judge Radford illustrate the Judge was, it seems, giving a sentence discount to L in anticipation of him giving evidence at the appellant’s trial.  Because counsel for the accused and the Judge did not have the full remarks they did not appreciate the incentive being offered. 

[9]       The Court in Machirus therefore said:

[17]     Mr Hall submitted that the trial miscarried on 21 August when the Judge received the letter but not the sentencing notes. We agree. It is not necessary to extend the analysis to the trial evidence and argument. It was common ground between counsel that L's evidence was a very important part of the Crown case. Judge Crosbie described him as the principal witness of fact for the Crown. He is elsewhere described as the “glue” holding together the Crown case. It was L who gave detailed evidence that he and the co-accused, Mr Clayton, were in partnership and in the business of receiving stolen property. Mr Hall submitted correctly that where a convicted person is given a discount for co-operating with a police prosecution and is giving evidence, whether or not he is sentenced before the trial, as he should be, that discount is a continuing inducement to co-operate. If he subsequently refuses to give evidence the Crown have a remedy. The Solicitor-General can seek leave to appeal out of time against the sentence on the grounds that the sentencing Judge gave excessive credit based on the false premise that assistance would be provided. See R v Gray [2008] NZCA 311 at [38] citing R v Hadfield CA337/06 14 December 2006 at [11].

…

[21]     We are satisfied that the accused were placed in an unfair disadvantage by the non-disclosure of the sentencing notes of 31 May, as were the Judge and jury and that a miscarriage of justice resulted. There is no doubt that had the Judge and jury been informed of the presence of the discount they would have been much better informed of the context within which L was to give and gave evidence.

Stay – abuse of process

[10]     In his oral submissions before us counsel for the appellant raised a further appeal point (in addition to the miscarriage point on which the other accused had been successful).  The appellant submitted that if the Crown deliberately failed to provide the full sentence indication remarks to the trial Judge and to the appellant’s counsel to disguise the inducement offered to L then the prosecution should have been stayed for abuse of process: R v Smith [2004] EWCA Crim 2212. A miscarriage of justice had therefore occurred because the appellant had not been in a position to make an application for stay at trial.

[11]     The Crown accepted it had not provided all of Judge Radford’s remarks to the Judge and counsel.  In Machirus the Crown explained this failure on the basis that the prosecutor had understood the Judge’s sentencing indication remarks did not indicate a discount was being given for L giving evidence at the second trial.  This Court in Machirus did not consider the Judge’s remarks could have meant that.  But it did observe: 

[15] We accept that, if Judge Radford's sentencing notes were not read fully and the reader simply focussed on the conclusion, then [6](b), read on its own, could be interpreted as the Judge saying that there was no basis for any suggestion that L had something to gain by giving evidence at the retrial of Mr Machirus and his co-accused. It may be that the prosecutor formed that impression and thought that the letter reproduced at [8] above correctly summarised the position. Whether that is so or not, the disclosure that was made in the letter was inaccurate and did not properly apprise the Judge, counsel and Mr Machirus of the true position.

[12]     On reflection, counsel for the appellant accepted that there was no evidence to suggest the prosecutor had deliberately misled anyone.  Indeed the evidence suggested the prosecutor genuinely, if mistakenly, believed Judge Radford had not offered any inducement in his sentencing indication remarks.  Given those circumstances counsel for the appellant accepted he could not maintain a submission that the prosecution should be stayed for abuse of process.  This appeal ground was therefore abandoned.

Appeal against conviction following guilty plea

[13]     The appellant’s case is that his situation is effectively the same as Machirus, Westbury and Clayton.  He was also misled by the Crown’s failure to provide the full reasons for the Judge’s sentencing indication remarks.  Mr Coutts claims that if his trial counsel had known about the inducement he could have effectively challenged L’s credibility in front of the jury.  Mr Coutts, therefore, says he was placed at a similar disadvantage to the other three co‑accused.

[14]     As to his guilty plea the appellant says, in an affidavit filed in support of his appeal, that his guilty plea was based, in part, on his and his counsel’s assessment of L’s credibility at trial.  Thus, Mr Coutts’ guilty pleas were entered without a full appreciation of the strengths and weaknesses of the Crown case.  This was not therefore, he says, an informed decision to plead guilty.  As a result a miscarriage of justice has occurred.

[15]     As this Court said in R v LePage [2005] 2 NZLR 845 an appeal against a conviction after a plea of guilty will only be successful in very limited circumstances. This is especially so when the accused is represented by counsel and no credible complaint can be made regarding counsel’s advice. None of the three categories identified in Le Page, which could give rise to a miscarriage of justice after a guilty plea could apply to the present facts.

[16]     The three categories identified in Le Page are (at [17]-[19]):

a)where an appellant did not appreciate the nature of the charge nor intend to plead guilty to the particular charge;

b)where on the admitted facts the appellant could not in law have been convicted;

c)where the guilty plea arose from an erroneous ruling on a question of law.

[17]     We accept these categories were not intended by this Court to exclusively describe all the circumstances which could give rise to a miscarriage of justice following a guilty plea. 

[18]     Here, the appellant accepts he had proper legal advice and understood the nature of the charges he was pleading to.  On the admitted facts, the appellant was properly convicted of the offences charged.  The third category is intended to capture the situation where an accused has no effective option but to plead guilty given a ruling of law.  Where the ruling is subsequently found to be erroneous a miscarriage will have occurred if the accused had pleaded guilty based on that ruling.  This is not intended to cover the situation where an evidential ruling means the accused is less able to effectively challenge the prosecution evidence.

[19]     Here, the essence of the appellant’s case is that if he had known about the inducement offered to L he may not have pleaded guilty and may have been able to undermine L’s credibility. 

[20]     We do not consider any miscarriage has arisen in this case.

[21]     Mr Coutts’ plea of guilty was an acceptance by him that he committed the crimes alleged.  He did not suggest otherwise in his affidavit.  His guilty pleas were entered at the end of the prosecution case well after L had given evidence.  He was able to do a “deal” with the prosecution whereby they agreed not to pursue convictions on a further eleven counts.  Mr Coutts, therefore, received a real advantage from his guilty pleas. 

[22]     Despite the appellant’s claim that L’s evidence and credibility was pivotal to his decision to plead guilty, very little of L’s evidence was of direct relevance to the eleven counts the appellant pleaded guilty to.

[23] In ten of the eleven counts counsel for the appellant accepted L’s evidence had no direct relevance. In relation to those counts the appellant was found in possession of stolen goods. For example (as noted at [5] above), some of the counts related to stolen goods found in the back of a truck driven by the appellant. While L gave evidence that the goods ultimately found in Mr Coutts’ possession (on all counts) were stolen in burglaries, there was independent evidence that the goods in Mr Coutts’ possession were stolen goods.

[24]     In the one count where L’s evidence was of direct relevance, L gave evidence of stolen whiteware initially offered to Mr Machirus and Mr Clayton and then, after they refused, to the appellant who agreed to purchase the goods.  In this count there was also independent evidence the goods were stolen.  L’s evidence was therefore not vital to the Crown case as far as Mr Coutts was concerned. 

[25]     This analysis illustrates Mr Coutts was not in a position where he effectively had no choice but to plead guilty.  He made a considered decision based on a variety of factors.  He received legal advice which he does not criticise.  The fact he now considers he might have had a better chance to challenge L’s credibility is not a basis to claim a miscarriage of justice has somehow occurred.

[26]     Finally, the appellant has not suffered the same disadvantage as the other three co‑accused.  The others elected to maintain their not guilty pleas.  L’s evidence was therefore directly relevant to whether they were to be convicted or acquitted of the charges they faced.  Mr Coutts on the other hand pleaded guilty.

[27]     For those reasons, therefore, we are satisfied there is no miscarriage of justice.  The appeal will be dismissed.

Solicitors:

Crown Law Office, Wellington