The Queen v [ ] Craig

[2004] NZCA 448

IN THE COURT OF APPEAL OF NEW ZEALAND

CA355/03

THE QUEEN

v

[   ] CRAIG

Hearing:         25 May 2004

Coram:William Young J Williams J

Wild J

Appearances: J A Farrow for Appellant

G C de Graaff for Crown Judgment:     17 June 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]    On 10 April 1991 the appellant was convicted in the District Court at Dunedin on one count of injuring with intent to injure. He was subsequently sentenced to a short term of imprisonment. His appeal against conviction was dismissed on the papers on 13 June 1991 but has now been reheard in accordance with the judgment of the Privy Council in R v Taito [2003] 3 NZLR 577.

[2]    The basis of the appeal is new evidence said to have been unavailable to the appellant at his trial.

R V [   ] CRAIG CA CA355/03 [17 June 2004]

The background facts

[3]    The  case  related  to  events  which,  on   the   Crown   case,   occurred   on 10 January 1991.

[4]    On that afternoon, two men, Mr Dennis Storey and his stepson (a Mr Smith) left an address at Russell Street in Dunedin and prepared to get onto their motorcycles.

[5]    There was something of a party going on in Russell Street at the time which was attended by a number of skinheads.

[6]    There is considerable dispute as to the precise course which events took but it seems that:

1.One skinhead assaulted Mr Smith. This skinhead had a pie in his hand at the start of the assault and, as part of his attack on Mr Smith, pushed the pie into Mr Smith’s face. Mr Smith rode away on his motorcycle.

2.Mr Storey started his motorcycle and began to ride down Russell Street but was stopped by a skinhead and assaulted seriously. At the start of the assault this skinhead appeared to have had a piece of pie in his hand and, as part of the assault, pushed this into Mr Storey’s face.

[7]    Mr Storey told the jury that he managed to headbutt his assailant. At the time Mr Storey was wearing a helmet with the visor up and he believed he had taken some skin off the top of the head of his attacker.

[8]    Mr Storey was not in a position to defend himself adequately as he had a paralysed arm. That he had a paralysed arm was obvious to the other skinheads who were observing the assault. This led to some comments from them as to what was happening. Mr Storey said that he heard somebody say, in the course of the attack, “that’s enough Robbo”.

[9]    The incident was witnessed by Ms Sandra Corbett, a property and rental management agent. She had been showing people a house at Russell Street. From there she was able to observe the assault on Mr Storey. In her evidence at trial she said that she saw a person leave a group of skinheads who were on Russell Street and assault Mr Storey. She said that she heard someone yelling to the person who was attacking Mr Storey that he should stop. The person who was attacking Mr Storey walked back across the road but then picked up a piece of wood and turned back towards Mr Storey. At that time she heard someone yell out “that’s enough Rob that’s enough” and the attacker then rejoined the other skinheads.

[10]   Constable  Murray  Kinzett  spoke  to   the   appellant   at   about   8pm   on 10 January 1991. This, on the Crown case, was some four hours after the alleged assault. He noted at the time that the appellant had a cut on his forehead with dried blood across it.

[11]   Mr Storey and Ms Corbett identified the appellant from a photomontage. Armed  with  this  knowledge,   Constable   Kinzett   arrested   the   appellant   on   23 January 1991. The appellant denied assaulting anyone on 10 January 1991 but, somewhat confusingly, explained the cut on his forehead on the basis that he had “headbutted someone earlier that evening”.

The trial

[12]The Crown case was that:

1.Two separate skinheads attacked Messrs Smith and Storey.

2.The skinhead who attacked Mr Storey was the appellant.

[13]   The evidence relied upon by the Crown consisted of dock identifications of the appellant (by Mr Storey and Ms Corbett) along with the facts that the appellant was seen with a cut on his head some hours after the assault and that his first name is Robert (linking in with the fact that Mr Storey’s assailant was apparently referred to

by someone else in the group of skinheads as “Rob” or “Robbo”). Mr Smith did not give evidence.

[14]The appellant gave evidence himself and called three other witnesses.

[15]   In his evidence, the appellant accepted that he was at Russell Street at the time of the assault on Mr Storey but claimed that a person whom he was not prepared to name had assaulted Mr Smith and that the same person later assaulted Mr Storey. He said that he was subsequently involved in a minor incident at the corner of Moray Place and Princes Street which led to him receiving an injury on his head that opened up an old wound. He concluded his evidence-in-chief by saying this:

I wish to say that first of all I was at a party. A man who was at the party who I will not name attacked the person on the motorcycle. I didn’t do it. I have been charged with it. I’ve told the arresting officer many times that I didn’t do it. The person responsible will not come forward. … I’ve got nothing much to say except I’d like to see justice done today.

In  cross-examination  he  was  asked  about  the  remark  called  out  to     “Rob” or “Robbo”. First, he said that he had

… no explanation for that, perhaps someone was calling out to me.

He did not elaborate on why anyone would have done that. Later he said that he had never previously been called “Robbo”.

[16]   Three other people who were at the party gave evidence saying that the appellant was not involved in the assault on Mr Storey.

[17]   The Judge summed up to the jury in conventional terms. When talking to the jury about the strength or otherwise of the identification evidence he referred to the cut on the appellant’s forehead and the reference to “Rob” or “Robbo” as both being factors which might strengthen the identification evidence.

[18]The appellant was found guilty by the jury.

The “new evidence”

[19]   Before the appellant was sentenced he managed to obtain two affidavits, one from Mr Logan Hinds and the other from Mr Sean MacFadgen.  In  his  affidavit,  Mr Hinds said that he was the man who had assaulted Mr Storey. Mr MacFadgen (who would appear to have been the leader of the group of skinheads who were present) said that he saw Mr Hinds have a fight with Mr Storey. He claimed that the appellant was there, that he saw him pick up a brick but that he told him to stop because, as he said at the time, “that was enough Rob”. He confirmed that the appellant did not assault Mr Storey.

[20]   A curiosity about these affidavits is that they allege that the incident took place on 12 January and not 10 January. The date issue was not explored before us  at the hearing of the appeal and we simply note the point and put it one side.

[21]   The appellant also wrote a letter (of 14 April 1991) to the trial Judge seeking bail and a re-trial.

[22]   The trial Judge proceeded to sentence the appellant on 18 April 1991. He thought it inappropriate to defer sentencing pending an appeal to this Court.

The first appeal to this Court

[23]The appellant then appealed to this Court.

[24]   Further affidavits were put before this Court, these affidavits coming from  the appellant and Messrs Hinds and MacFadgen. The appellant said in his affidavit:

4.          THAT I did not name the person who committed the offences even though I knew that it was Logan Troy Messrs Hinds because I was frightened of retribution from him if I did. For that reason also I never instructed my Counsel to call him as a witness nor did I tell my Counsel who it was who committed the offences. I asked Logan Messrs Hinds myself to give evidence at my trial but he refused.

5.          THAT the day after my conviction Logan Troy Messrs Hinds was arrested on warrant and spoke to me in prison as my application for bail had

been declined. He agreed to give evidence admitting his responsibility for the assault and agreed to be interviewed by my Counsel.

6.          THAT I did not know the whereabouts of Sean Ross MacFadgen and so could not call him as a witness at my trial.

[25]   In his affidavit Mr Hinds noted that he obtained legal advice from a named solicitor in Dunedin before swearing the affidavit. He also confirmed that he had attacked Mr Storey. As well, he said:

4.   THAT after the fight I shaved my head and changed my clothes in    order to avoid identification.

6. THAT I was asked by the appellant to give evidence at his trial but I declined to do so believing that the appellant would be acquitted anyway. I never spoke to the appellant’s counsel and it was only after the appellant was convicted that I decided to come forward and give this evidence. I told the appellant I would give this evidence and at his request I spoke to his counsel.

[26]   Mr MacFadgen’s affidavit was generally in accordance with what he had said in his District Court affidavit. He said that he did not give evidence at the  appellant’s trial because he was in Christchurch when the appellant was arrested and later was himself arrested and in custody before and during the trial. He confirmed that he had obtained legal advice from a named solicitor in Dunedin before swearing the affidavit.

[27]   Both Messrs Hinds and MacFadgen again expressed the belief that the incident occurred on 12 January and not 10 January.

[28]The appellant also wrote a letter to this Court in support of his appeal.

[29]As indicated, the appeal was dismissed on the papers.

The evidence before the Court at the rehearing

[30]   For the purpose of the hearing before us, the appellant swore an additional affidavit (on 15 February 2004) and there were also affidavits from counsel who appeared for him prior to and at his trial. Initially Ms Elizabeth Bulger had been

assigned to appear for the appellant. Not long before the trial Ms Anne Stevens was instructed. Neither was required to appear for cross-examination.

[31]   Efforts were made to ensure that Messrs MacFadgen and Hinds would be available to give oral evidence at the hearing of the appeal. Mr Hinds (who was in prison) appeared but claimed in the witness box that he had difficulty remembering the events of 1991 (in particular due to a head injury he had subsequently received) and in any event he exercised his right not to incriminate himself. After some difficulty Mr MacFadgen was located. He was not anxious to give evidence and, in the end, it was agreed that there was no point in arranging for him to be brought to Christchurch for the hearing.

[32]   The appellant was cross-examined at length on his general narrative of events.

[33]The appellant’s position before us broadly was along these lines:

1.He was not guilty of the crime of which he had been convicted.

2.He had seen Mr Hinds assault Mr Storey and was well aware that he was the guilty man. Mr Hinds had earlier assaulted Mr Smith.

3.Mr Hinds had refused to give evidence to acknowledge responsibility for the offence when asked before trial.

4.Had he named Mr Hinds as the offender without Mr Hinds’ consent, he would have faced retribution and it was therefore not practicable for him to run the case on other than the basis that he did.

[34]   Despite a thorough cross-examination, we were left with the view that the account of events which the appellant gives now is not inconsistent with the extrinsic evidence which is available, that is the accounts of events given by his previous counsel, the correspondence which he wrote to the District Court and the Court of Appeal and his earlier affidavits.

[35]   There is some other contextual material to which we should refer. It is common ground between the appellant and the Crown that Mr Hinds was present in Russell Street. Further, the Crown is inclined to accept that Mr Hinds was the man who assaulted Mr Smith (a point which is not made by Mr Hinds in the affidavits which he has sworn). Apparently Mr Smith indicated to the police at the time that he believed that he had been assaulted by Mr Hinds (whom he knew). Mr Hinds was not, however, prosecuted in relation to his role in the relevant offence.

An overview of the appeal – general considerations

[36]   The general principles as to appeals based on new evidence are well established. The Court  has  the  power  to  hear  fresh  evidence  pursuant  to  s389(b) of the Crimes Act. The Court usually requires that such new evidence is “fresh” meaning that it was not available at trial and that it also be credible and cogent in the sense that if given at trial it may have resulted in a different verdict. The statutory basis for allowing an appeal relating to new evidence is provided for by section 385(1)(c) of the Crimes Act 1961, which requires this Court to allow an appeal if it is of the opinion:

That on any ground there is a miscarriage of justice.

This language necessarily involves some flexibility and the necessity to have regard to the interests of justice generally, and these include not only factors personal to the position of the appellant but also systemic considerations.

[37]   As this Court noted in R v Power (CA 187/96, 22 October 1996) there is no fixed test for when fresh evidence should be admitted on appeal. In the end the  Court must determine what course will best meet the interests of justice in any particular  case.  The  general  principles  are  well  settled  and  are  summarised  in R v Crime Appeal (1988) 3 CRNZ 512, 513 as follows:

The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s385(1)(c) Crimes Act which provides that the Court shall allow an appeal against conviction if it is of opinion that on any ground there was a miscarriage of justice. This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient to establish

that there was a miscarriage of justice at the trial. The overriding test must  be the interests of justice (R v Arnold [1985] 1 NZLR 193, 196). In general the evidence must be new or fresh in the sense that it was not available at trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict (R v Fryer [1981] 1 NZLR 748, 753 and the cases referred to there).

[38]In relation to appeals advanced on the basis of evidence from a new witness,

Adams on Criminal Law states (at 684-5):

Where the evidence subsequently sought to be adduced is to be given by a person who did not give evidence at trial, the evidence will clearly be “new” and attention will be directed to whether it was “available” at the time of the trial. While no single test has been, or perhaps can be, laid down, an applicant who seeks to adduce the new evidence will need to show either that he or she did not know of the existence of the evidence at the time of the trial and could not, with the exercise of due diligence, have discovered its existence, or that there was some special element in the circumstances which justifies the Court in excusing the failure to adduce the evidence at trial.

In this case the issue is whether the appellant has established a “special element in the circumstances” that justifies this Court admitting the affidavit of the appellant and those of Messrs Hinds and MacFadgen.

Is the evidence of the appellant fresh?

[39]   As a matter of general principle, this Court does not usually permit an appellant to advance a case on appeal which was not put at trial. There is a real  sense in which the appellant’s argument, at least as to his own evidence, falls foul of this principle.

[40]   At trial the appellant denied being the offender but although he claimed to know who had assaulted Mr Storey he would not name him.

[41]   The appellant could have alleged at trial that Mr Hinds was the offender.  Had he done so, he could have established by evidence that Mr Hinds was present at Russell Street on the day of the offence. He  could probably have established that  Mr Hinds was the person who assaulted Mr Smith. Through his counsel he could have sought to persuade Mr Storey that the man who assaulted him was Mr Hinds and, to this end, shown photographs of Mr Hinds to Mr Storey.

[42]   A defence run on that basis might be thought to have had significantly greater prospects of success than the defence advanced.

[43]   From the point of view of the appellant, nominating Mr Hinds as the offender at trial would have involved something equivalent to “narking” and thus would have been contrary to the ethos of the anti-social subculture of which he was a member. It would also have been likely to result in a beating. In one sense these are cogent factors and would have been seen in that way by the appellant. But for us to treat the appellant’s adherence to an anti-narking ethos (or even a fear of a beating from violent associates) as a basis for holding that such evidence was unavailable at trial would have an unacceptable floodgates potential. To put this another way, we do not see how the appellant suffered a miscarriage of justice associated with this particular line of defence and supporting evidence not being before the jury given that this resulted from a course of conduct for which he was responsible.

Is the evidence of Messrs Hinds and MacFadgen fresh?

[44]   There is, of course, a real sense in which the only “new” evidence now available (ie in 2004) is that of the appellant. This is because Messrs Hinds and MacFadgen are not prepared to stand by their 1991 affidavits. On the other hand, in 1991 each swore two affidavits, one in the District Court and one in this Court. In  the affidavits that were sworn for the purposes of the appeal, each man has referred to taking independent advice from a solicitor in Dunedin. There is no reason to suppose that they would not have been prepared to give evidence in terms of their affidavits if required to do so in 1991. Given the nature of the present exercise, it would not be fair to hold the changes of position of both men against the appellant.  It is, after all, not his fault that the evidence was not heard in 1991. So we really  have to approach this aspect of the case as if we were hearing the appeal in 1991 and Messrs Hinds and MacFadgen were prepared to stand-by their affidavits.

[45]   Amongst the factors which rendered the evidence of Mr Hinds unavailable to the appellant was his underlying hostility to the criminal justice system and lack of co-operation with the appellant. There is authority for the view that such factors  may be sufficient to render evidence unavailable at trial, see for instance the

judgment of this Court in R v Winterburn (CA30/98, 8 October 1998) and the decision  of  the  Court  of  Criminal  Appeal  in   the   Western   Australian   case,   R v Ilic (2000) 118A Crim R 378.

[46]   Of course, lack of co-operation or hostility to the criminal justice system are matters of degree. In most cases a defendant who is aware that a particular person can give relevant evidence can be expected to require that person to appear at trial by subpoena and in this way overcome such lack of co-operation or hostility. In this case, however, there is the additional factor that had the appellant sought to compel evidence from Mr Hinds to the effect that he was the offender, Mr Hinds could not have been compelled to acknowledge his guilt unless willing to waive his privilege against self-incrimination. It is this factor that distinguishes this case from most others involving “fresh evidence” from a third party witness, and we are satisfied that such cases will be sufficiently rare to avoid the risk of the floodgates alluded to above. The interests of justice dictate that the appellant should now be able to rely  on Mr Hinds’ evidence that he was the real offender.

[47]   We see a parallel between this case and cases in which co-accused cannot call each  other  to  give  evidence  in  support  of  their   defences,   see   for   instance   R v Gilbertson (CA274/97, 9 April 1998).

[48]   So, on balance, we think that the affidavit of Mr Hinds must be regarded as fresh evidence which was unavailable at trial.

[49]   This conclusion and what we are about to say makes it unnecessary for us to consider the position in relation to the affidavit from Mr MacFadgen.

Is the evidence of Mr Hinds sufficiently cogent to warrant the allowing of the appeal?

[50]This issue is closely balanced.

[51]   Our consideration of this issue is necessarily artificially constrained by the lapse of time since 1991 and the subsequent change of heart by Mr Hinds which

means that he is not prepared (or perhaps unable given his head injury and amnesia) to adhere to his affidavit. In normal circumstances a refusal by a person giving the new evidence to stand-by his or her affidavit would be fatal to the appeal. But, for reasons given, we think that we must deal with the appeal as if Mr Hinds was prepared to support the appellant.

[52]   The evidence against the appellant was far from negligible. He was  identified (albeit at trial only in the form of dock identifications) by Mr Storey and Ms Corbett. There was supporting evidence as well; the cut on his head and the remark that was heard suggesting that the offender was called Robert. Another  factor which is perhaps of significance is that Mr Hinds also featured in the photomontage which was shown to Mr Storey and Ms Corbett but was not identified as the offender.

[53]   On the other hand, a case which depends on dock identification is seldom  cast iron. Where, as here, there are supporting factors supporting such an identification, it is important to recognise that such factors may have contributed to the dock identification and are thus not necessarily fairly regarded as completely independent evidence of guilt. In this case it is least likely that the “Rob”  or “Robbo” remark and the injuries seen on the appellant’s head on the evening of     10 January served, in the minds of the police investigating the offence, to identify him as a suspect and this may well have resulted in him appearing in the initial photomontage which was shown to both Mr Storey and Ms Corbett.

[54]   There are two other factors which support the appellant which we should record:

1.On the case as presented to us it appears that Mr Hinds did assault Mr Smith.

2.The appellant’s story at trial, as before us, was that the man who assaulted  Mr Smith was the man who assaulted Mr Storey. So there is consistency on this point.

[55]   We are left with the view that if Mr Hinds had turned up at trial and had acknowledged his guilt in the witness box it may well be that the jury would have seen this as raising sufficient doubt to warrant an acquittal.

[56]   Against that background, we are, driven to the conclusion that the appeal must be allowed. Given the length of time since the offence and the fact that the appellant has long since served the sentence imposed, it would pointless to order a re-trial.

Disposition

[57]   The reasons given, we quash the conviction and direct that a judgment and verdict of acquittal be entered.

Solicitors:

Webb Farry, Dunedin for Appellant Crown Law Office, Wellington