The Queen v Curtis

[2006] NZCA 205

IN THE COURT OF APPEAL OF NEW ZEALAND

CA224/06

THE QUEEN

v

GRAEME PHILLIP CURTIS

Hearing:19 July 2006

Court:Chambers, Robertson and Arnold JJ

Counsel:T B Blake for Appellant

B J Horsley for Crown

Judgment:10 August 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Misleading the court

[1]       In 2005, Graeme Curtis, the appellant, pleaded guilty to fraud.  Sentencing was postponed to give him the chance of paying reparation of $2,418.50 to the complainant.  After several adjournments, Mr Curtis finally came up for sentence before Judge Ellis on 1 June last year.  The judge asked Mr Curtis how much he had paid by way of reparation.  Mr Curtis told him that he had paid $2,150, leaving $293 outstanding.  (The arithmetic was not quite right, but the discrepancy is immaterial for current purposes.)  On the basis of what he was told, Judge Ellis convicted Mr Curtis, but “discharged [him] without further penalty on the condition that [he repaid] the outstanding balance of $293 within one month”.

[2]       There is no dispute that Mr Curtis lied to the judge.  He had paid nothing to the complainant, although he did within the month of his sentencing pay $470, seemingly in compliance with the judge’s condition.

[3]       When it was discovered that he had lied, Mr Curtis was charged with wilfully attempting to pervert the course of justice.  He pleaded not guilty, but a jury found him guilty.  On 25 June this year, the trial judge, Judge Behrens QC, sentenced Mr Curtis to eight months’ imprisonment.  He granted him leave to apply for home detention. 

[4]       Mr Curtis now appeals against both his conviction and the sentence. 

Issues on the appeal

[5]       There is one issue on the appeal against conviction.  That is whether Mr Curtis’s right to a fair trial was undermined by the judge’s refusal to adjourn the trial.  We shall examine the reasons why Mr Curtis says the trial should have been adjourned in the next section of these reasons.

[6]       On the appeal against sentence, Mr Curtis contends that eight months’ imprisonment was manifestly excessive.

A fair trial?

[7]       Mr Curtis was due to face trial on 5 May this year.  Two days before the trial, Television New Zealand broadcast a “Fair Go” programme featuring Mr Curtis.  The story concerned Mr Curtis’s computer sales and repair business which he operated at the time from a shop in Upper Hutt.  The programme reported the complaints of a number of his customers who contended that Mr Curtis had taken their computers in but then not repaired them.  The television reporter was shown in the programme coming into Mr Curtis’s shop.  The reporter put to Mr Curtis the complaints.  Mr Curtis gave a rather stammering and inadequate explanation as to why the computers had not been repaired and returned.

[8]       The story ended with the reporter saying that Mr Curtis was to appear in the District Court at Upper Hutt on Friday on a charge of attempting to pervert the course of justice.  The reporter added that Mr Curtis maintained his innocence in respect of that charge. 

[9]       Immediately following the broadcast, Mr Blake, who was Mr Curtis’s counsel both at trial and on the appeal, applied to Judge Behrens for an adjournment.  Mr Blake submitted to the trial judge that the showing of this programme on prime time television just two nights before the trial meant that Mr Curtis could not get a fair trial.

[10]     Judge Behrens determined that the trial should proceed.  He said in his ruling that he would give appropriate warnings in respect of the television programme if that became necessary. 

[11]     The television programme was not referred to at all during the trial.  In the course of his summing up, the judge said:

[7]       I have already mentioned what I am about to say but it is important that you understand it.  You must consider only the evidence that you have heard during the trial.  If you have heard anything about this matter in the past, or if you have heard something that sounds like it, you must put that out of your mind.  It is fundamental to our system of justice that people are entitled to be tried solely on the evidence given in this court, in the formal way that it has been, and tested if necessary by cross-examination.  It is important too that you put aside any feelings of sympathy or anger or distaste or prejudice about what you’ve heard about the people involved.  As I said to you earlier, society expects judges to go about their business as calmly and objectively as they generally can and you are the judges in this trial.  Society expects you to go about your business when enquiring into this case, in an objective way, that does not carry any prejudice or bias or sympathy or anger with it.

[12]     Mr Blake does not complain about that passage, or indeed about any part of the way the judge conducted the trial or summed up.  The complaint is restricted to the judge’s refusal to adjourn. 

[13]     We say immediately that Television New Zealand’s decision to broadcast that programme when it did was irresponsible and potentially unfair – and we shall say more about that in a postscript to these reasons.  We also accept that many trial judges would have decided to adjourn the trial in the circumstances that had arisen.  But it was a discretionary decision, and the issue is not what we would have done as trial judges but rather is whether Judge Behrens’s decision to press on breached Mr Curtis’s right to a fair trial.

[14]     We do not believe it did.  We are prepared to accept that some members of the jury may have seen the “Fair Go” programme and realised that the Mr Curtis they were judging was the man who had been portrayed in it.  We also accept the likelihood that those who saw it may have told their fellow jurors about the programme.  We have watched the videotape.  Our impression is that it portrayed Mr Curtis as a financially-strapped bungler and, at least for some viewers, as dodgy.  But that must be put in context.  The jury knew in any event that Mr Curtis had pleaded guilty to fraud: that was, after all, the starting point of the Crown’s case against him on the charge of attempting to pervert the course of justice.  The jury also knew, however, that the fraud was of a comparatively minor nature.  They knew the amount involved – just over $2,000 – and they knew that Judge Ellis had considered it sufficiently minor that it could be dealt with on the basis of a conviction and discharge, even if the latter was based on false information supplied by Mr Curtis. 

[15]     The jury also knew that Mr Curtis had lied to Judge Ellis, as that was not in dispute.  The sole issue in this trial was Mr Curtis’s intent when lying to the judge.  The defence was, apparently, that his reason for lying was not to persuade the judge to give him a lower sentence, but rather was a consequence of mistake.  We have closely examined the transcript of the discussion between Judge Ellis and Mr Curtis and Mr Curtis’s explanation.  Our conclusion is that the defence had no chance of success whatever. 

[16]     Further, Judge Behrens in his summing up gave the jury a strong direction about the need to judge the accused solely on the basis of what they had heard in court.  There is no reason to suppose that that direction was not complied with.  As this court has frequently said, concerns about pre-trial publicity have been at times overrated, a view now endorsed by the Law Commission: R v Middleton CA218/00 26 September 2000 at [12].

[17]     In all the circumstances, we consider that Mr Curtis’s trial was fair.  While the “Fair Go” programme would have given any jurors who saw it some extra details about Mr Curtis’s business practices, the programme did not allege against Mr Curtis any criminal activity or business malpractice different from what they legitimately learned from the trial itself.  The point in issue in the trial was a very narrow one, which really turned on a study of the transcript and the inferences to be drawn from it.  The programme would not have influenced that sort of analysis. 

Sentence

[18]     Although before Judge Behrens Mr Blake had submitted that a non-custodial sentence was appropriate, before us he accepted that he could not complain about the fact that a sentence of imprisonment was imposed.  That was a sensible concession, given this court’s advice that “any attempt to disturb the process of administration of justice is to be deplored and, following conviction, is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment”: R v Churchward CA439/05 2 March 2006 at [14].

[19]     The question Mr Blake raised before us was whether the length of the prison sentence was excessive.

[20]     Mr Blake raised two matters in this regard.  First, he submitted that Judge Behrens had not been justified in finding that the attempt to mislead Judge Ellis had been premeditated.  Rather, Mr Blake submitted the jury may have reached the guilty verdict on the basis that Mr Curtis had spontaneously decided to be dishonest after a misunderstanding between him and Judge Ellis, of which on the spur of the moment he decided to take advantage.

[21]     A judge sentencing following a defended trial is not obliged, of course, to accept a view of the facts most favourable to the accused.  Judge Behrens had the advantage of being the trial judge and hearing the evidence.  It was certainly open to him on the evidence to find that Mr Curtis’s lying was premeditated; indeed, the suggestion that it arose spontaneously from a misunderstanding seems next to impossible when one reads the transcript.

[22]     Mr Blake’s second point was that this sentence was out of line with the sentence in R v Hawkins HC CHCH S59/92 27 August 1992, a case on rather similar facts.  In that case, Mr Hawkins was sentenced to nine months’ imprisonment.  Mr Blake argued that Mr Hawkins’s offending was more serious than Mr Curtis’s.  That suggested, he submitted, that the starting point here should have been about six months.  An allowance should then have been made for the following mitigating factors: Mr Curtis’s weak frame of mind following the collapse of his computer business and the ending of a personal relationship and his unresolved grief from having nursed his mother in the months preceding her death from cancer.  Mr Blake submitted that three months’ reduction on those grounds was appropriate.  The end sentence should, therefore, have been in the order of three months’ imprisonment.

[23]     We cannot accept that argument.  For a start, we do not accept that Mr Hawkins’s offending was worse than Mr Curtis’s: the facts relating to the offending are remarkably similar.  When Mr Hawkins was sentenced, sentencing judges were not quite as particular as they are today about noting starting points and articulating precise discounts.  But what has to be noted is that Mr Hawkins had pleaded guilty, a point confirmed from the court record and advised to both Judge Behrens and us.  The starting point in Hawkins must therefore have been in the vicinity of a year.  Even allowing for the mitigating factors which Mr Blake sought to have us take into account, the end result would be roughly in line with the sentence Judge Behrens actually imposed.  Indeed, for all we know, that was the reasoning process Judge Behrens employed in reaching his eight months’ figure.  Unfortunately Judge Behrens did not articulate exactly how he reached the figure he did.  We do know, however, from Mr Blake’s having given us the sentencing submissions at trial, that Hawkins was the primary authority relied upon.  At sentencing, the Crown had contended that, based on the sentence imposed in Hawkins but taking into account that there was no guilty plea in this matter, a sentence of around 12 months’ imprisonment would be appropriate.  The Crown were not prepared to accept at sentencing that there were any mitigating factors, but it would seem in that regard that the judge did not agree. 

[24]     In any event, we are not satisfied that the sentence was manifestly excessive.  Mr Blake’s submission was based on a false premise: it ignored what must have been the true starting point in Hawkins and it made the unjustified assumption that Mr Curtis’s offending was less serious than Mr Hawkins’s.

[25]     It should also not be overlooked that Mr Curtis has not been resentenced with respect to the fraud charge.  He clearly would not have been discharged on that charge had Judge Ellis known that he had not in fact made any reparation.  The punishment for this offence must therefore reflect not only this offending but also the earlier offending in respect of which he has reaped an advantage: see R v Moore CA399/99 23 November 1999. 

[26]     The sentence will stand.

Postscript

[27]     We conclude these reasons by expressing our concern about the decision of Television New Zealand to broadcast the story about Mr Curtis when they knew that he was to stand trial two days later.  That decision was, as we have said, irresponsible.  There does not appear to have been any reason why the broadcast could not have been delayed until after the trial.

[28]     Prejudicial publicity of this type immediately prior to trial may deprive an accused of his right to a fair trial.  Where that occurs, the Solicitor-General is likely to consider bringing contempt proceedings against the relevant media organisation.  In this case, the broadcast did not result in an unfair trial, but that was fortuitous as far as Television New Zealand is concerned.  We consider that Television New Zealand should have exercised better judgment in determining the timing of the broadcast.

Solicitors:
Crown Law Office, Wellington