The Queen v Ellis

[2008] NZCA 153

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/07
[2008] NZCA 153

THE QUEEN

v

AARON PATRICK ELLIS

Hearing:21 May 2008

Court:Hammond, Robertson and Wild JJ

Counsel:N Levy for Appellant

M E Ball for Respondent

Judgment:6 June 2008 at 2.30 pm

JUDGMENT OF THE COURT

AN EXTENSION OF TIME FOR APPEALING IS REFUSED.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]       The appellant seeks an extension of time to appeal against his conviction.  He was convicted of robbing Mr Tom McDermott of his boat and trailer at Waitarere between 26 November and 3 December 2001.  The conviction was entered on 6 July 2005 following trial in the District Court at Palmerston North before Judge Connell.

[2]       Leave is required because the appeal is out of time.

Leave principles

[3]       The principles upon which leave is granted under s 388(2) Crimes Act 1961 to bring an appeal outside the 28 day appeal period stipulated in s 388(1) were outlined by this Court in R v Knight [1998] 1 NZLR 583 at 587-589. This Court affirmed them in R v Lee [2006] 3 NZLR 42 at 72 and R v Slavich [2008] NZCA 116 at [7]-[14].

[4]       The starting point is that there must exist special circumstances to justify a departure from the principle that a conviction obtained according to law should stand.  In this case, the critical considerations are:

·the merits of the proposed appeal; and

·the length of and reasons for the delay.

The merits of the proposed appeal

[5]       The conviction resulted from the appellant and two other men taking Mr McDermott’s trailer boat from his home.  The Crown case was that it was a “classic standover robbery”.  On 26 November 2001 the appellant telephoned Mr McDermott, and followed up with a visit to his home.  He accused Mr McDermott of stealing his cannabis crop and asked Mr McDermott what compensation he offered.  He told Mr McDermott that if nothing was forthcoming people would come looking for him.

[6]       Two days later the appellant and two other men questioned Mr McDermott about the missing cannabis.  One of the men produced a pistol and put it on the table where Mr McDermott could see it.

[7]       A few days later the appellant and the same two men again spoke to Mr McDermott about compensation.  It was suggested Mr McDermott offer his car.  This third meeting ended on the basis that Mr McDermott needed to make up his mind about what he was offering, because they would be back.

[8]       The next day the appellant and another man returned and the appellant indicated that he had come to take something as compensation or else “they could come looking for you” and “if they do you could get blown away”.  In the face of these threats Mr McDermott and his son permitted the appellant to hook up Mr McDermott’s trailer boat and drive off with it.

[9]       The boat was seen a few days later at a Mr Taylor’s house.  The number plate had been removed from the trailer and the boat had been damaged.  Mr McDermott eventually got it back from the Police about a year later.

[10]     The defence case at trial was that there was some problem between the appellant and Mr McDermott, apparently relating to the cannabis crop, which was solved by Mr McDermott giving his boat to Mr Ellis.  The nub of the defence is captured in this part of the Judge’s summing up:

[39]     …  Mr McDermott, by consent and by agreement, gave the boat over to Mr Ellis and he then, in terms of that argument about colour of right, said that Mr Ellis, in plain terms, had permission to take it and with that Mr Jefferies read to you part of the evidence where it was put to Mr McDermott that in some way there was a problem, mutually solved, between Mr Ellis and Mr McDermott.  They both got round a problem by the way in which Mr McDermott expressed his giving up of the boat.  …

[11]     Ms Levy submitted that this was not the defence the appellant instructed his counsel to make to the charge.  The defence was that Mr McDermott approached the appellant, complaining that his cannabis crop had been stolen by neighbours he named.  He asked the appellant if he would undertake a recovery operation.  When the appellant refused, Mr McDermott asked who might help.  The appellant suggested that Mr McDermott’s nephew, Mr Philip Stevens, would do the recovery but would want to be paid.  Mr McDermott agreed that the payment should be his trailer boat, and agreed to the appellant taking this away to give to Mr Stevens.

[12]     The appellant accepted that any prospect of success for this defence required the appellant to give evidence, and to call the witnesses who could substantiate this account.

[13]     No defence evidence was called at the trial.  Defence counsel at trial, Mr Jefferies, was cross-examined on the affidavit he had sworn in relation to the present application.  He said he had advised the appellant against giving or calling evidence along the lines just indicated, because it involved challenging Mr McDermott’s credibility, thereby exposing the appellant to questioning about his own “rather lengthy list of convictions”, and risked implicating the appellant in the cannabis crop or “with regard to debts relating to cannabis”. 

[14]     Mr Jefferies said that he advised the appellant against issuing subpoenas to defence witnesses, because none was prepared to be briefed by Mr Jefferies, who had no idea what any of them would say.  Mr Jefferies said that the appellant accepted both his advice that there should be no defence evidence, and the defence strategy as Mr Jefferies ran it at trial. 

[15]     Ms Levy’s cross-examination of Mr Jefferies about these aspects included the following:

Q.… is it correct Mr Ellis instructed you to call (Mr Commerford and Mr Taylor) but you chose not to have them served with subpoenas because you didn’t know what their evidence would be?

A.Yes.  That was discussed with Mr Ellis and explained to him, the danger of calling reluctant witnesses we weren’t certain what they would say.  At the end of the day Mr Ellis accepted the position.

Q.Mr Ellis maintained throughout you should subpoena those witnesses?

A.Not throughout, there was a strategy decided for the trial which he accepted and I point out that Mr Ellis is not shy in coming forward and complaining about his lawyer in Court, I think in the past he had sacked lawyers on the eve of or during trial, and Mr Ellis in no way protested because there was an agreed strategy.

[16]     Later in his cross-examination, Mr Jefferies explained that he had discussed the proposed defence witnesses with Mr Nisbet, a Wellington solicitor with whom the appellant made contact and who assisted with filing the Notice of Appeal.  He said:

It was his (Mr Nisbet’s) view there wasn’t a lot of merit in those witnesses and that really strengthened my resolve that before they were subpoened in court I would want to speak to them and get clear instructions from them as to what they were to say.

[17]     Later still, the following exchanges occurred with counsel and Bench:

Q.(Ms Levy)  When do you say Mr Ellis agreed with the trial strategy of him not giving evidence?

A.Just prior to the trial.  It was discussed on the day of the trial because the last thing I wanted was an incident in the court, and an aborted trial, so I wanted to make completely sure the strategy being run was acceptable to Mr Ellis because the past history indicated Mr Ellis would protest if it wasn’t being run in his way, I was very conscientious to ensure there was that agreement.

Q.(Robertson J)  That was no evidence from him and none called?

A.Correct.

Q.He agreed with that before the trial began on 4 July?

A.Yes, and in my view he was happy with how the trial had gone before the jury went out to deliberate.

Q.(Hammond J)  In para 11 of your affidavit you say he signed a statement to that effect, which you say should be on the file which you no longer have?  Is it your usual practice to get such a statement?

A.No.

Q.You thought it prudent in this particular case to do so?

A.       Yes.

[18] Mr Jefferies equivocated as to whether the appellant had explained to him the defence as we have outlined it at [11]. The relevant passages in Ms Levy’s cross-examination of Mr Jefferies are:

Q.…  Did Mr Ellis indicate to you precisely or imprecisely his defence was that Tom McDermott had asked him to deliver the boat to Philip Stevens?

A.       No.

But, later:

…

Q.You have a memory of Philip Stevens and Mr Commerford giving evidence or being wanted to give evidence consistent with Mr McDermott wanting the boat to go to Philip Stevens?

A.Yes.

Q.That was consistent with the defence that Mr Ellis discussed with you?

A.Yes.

Q.That Mr McDermott wanted the boat to go to Philip Stevens?

A.Yes.

Q.Mr Stevens and Mr Commerford at least were relevant to the defence?

A.They could well have been, yes.

Q.The defence that Mr Ellis had instructed you he wanted to run?

A.       Yes.

[19]     The following are the main points emerging from the appellant’s affidavit in support of his leave application:

·At a meeting with Mr Jefferies on the Friday before the trial, he told Mr Jefferies he wanted to give evidence and call 11 defence witnesses.  Their names and the gist of their evidence are set out in the appellant’s affidavit.

·Mr Jefferies advised him that this evidence was unlikely to be needed.  The appellant deposed:

8.He (Mr Jefferies) said if our witnesses were required he would have the case adjourned so that they could be summonsed and called to give evidence.  I was in no position to argue with this advice – I knew that the witnesses had not been summonsed as they needed to be if they were to give evidence.

·At the end of the Crown case, he told Mr Jefferies that he wanted to give evidence.  Mr Jefferies advised him again not to give or call evidence.  The appellant stated:

10.I did not know that I had any alternative but to accept this advice.  I was not told that it was my decision about whether to give or call evidence, and that I was entitled to have a different view to Mr Jefferies about that.  I had no choice but to go along with Mr Jefferies’ advice about these things – I knew that none of the witnesses I wanted to be called had been summonsed.

It emerges from these passages that the appellant went along with Mr Jefferies’ advice that there should be no defence evidence. 

[20]     The appellant was not cross-examined.  His conduct during the hearing of this application demonstrated to us that he has no hesitation in conveying his wishes to counsel. 

[21]     As the passages we have set out in [15]-[18] indicate, Mr Jefferies was adamant that the appellant had made an informed choice not to give evidence.  We note that it was not put to Mr Jefferies that he had told the appellant that the trial could be adjourned if the appellant wanted defence witnesses summoned.  Defence counsel with Mr Jefferies’ experience know that is not the position.

[22]     Drawing all this together, Ms Levy submitted that the nub of this aspect of the application is that the appellant was not given advice enabling him to make his own decisions.  It was not explained to him that the defence outlined in [11] could not be run unsupported by defence evidence.  The Court asked Mr Jefferies about that:

Q.(Robertson J)  Did you tell Mr Ellis that if he didn’t give evidence then the positive defence couldn’t be run because there would be no foundation for it?

A.I maybe didn’t describe it in those words, but indicated to him if he did give evidence that would help the defence case but that had to be qualified with the other problems that would give rise to.  But perhaps not in those words.

[23]     We are not persuaded the defence set out in [11] had/has any merit.  First, although it was not run at trial in that detail, it was put to Mr McDermott that he had agreed, albeit perhaps reluctantly, to his boat being taken.  These are the relevant parts of Mr Jefferies’ cross-examination of Mr McDermott:

Q.Now, would it be fair to say that when Mr Ellis was dealing with you he seemed to have a bit of a problem with this matter?

A.I think that is probably fair comment.

Q.Mmm.  Isn’t it really what happened at the end of the day, given that you knew Mr Ellis and you hadn’t had any trouble with him in the past, that you really joined forces with him, gave him the boat to solve a problem that both of you had, that is really what happened at the end of the day, wasn’t it?

A.Um, that is probably your interpretation of it, yes.

Q.And that would be a fair interpretation?

A.Um, well I am not quite sure I don’t know how to answer you.

Q.Fair to say that really it wasn’t Mr Ellis who was the instigator, he may have been the message boy, that be fair to say?

A.Yeah, yeah probably, yeah, that could be right.

…

Q.At the end of the day it was an agreement wasn’t it?

A.No I wouldn’t call it an agreement, I don’t know, I don’t think I would agree to let my boat just be taken away in the hope that it may come back.  But that it also might not.

[24]     The essence of the defence set out in [11] is that the appellant took Mr McDermott’s boat by agreement or arrangement, and that the intent to rob was thus absent.  By finding the appellant guilty of robbing Mr McDermott, the jury rejected that.

[25] Second, although the appellant filed an affidavit, we were not provided with affidavits from any of the proposed defence witnesses whose evidence corroborates the version of events set out in [11]. Given that the substance of the proposed appeal is that trial counsel failed to follow the appellant’s instructions to put the defence outlined in [11], the importance of the availability and cogency of the evidence that might establish that defence becomes important. If the evidence is not forthcoming, or is not to the effect the appellant asserts, then no miscarriage of justice has resulted from the defence not being put.

[26]     To summarise, although the detail of the defence outlined in [11] was not put at trial, its essence was before the jury who rejected it.  It is also not established that the evidence which might establish the detail of that defence is available.  Accordingly, we view the proposed appeal as having little merit.

Length of and reasons for delay

[27]     The salient events in the criminal proceeding against the appellant are these:

Date	Event
Not given to us	The appellant pleads guilty to an alternative charge of theft of Mr McDermott’s boat and trailer.  Mr Behrens QC was acting for him.1
Not given to us	With the Crown’s consent (explained by the complication of Mr Behrens’ appointment to the District Court Bench), the High Court allows the appellant’s application to vacate his guilty plea.  Mr Nisbet now acting for the appellant.1
Not given to us	Mr Nisbet “fell out” with the appellant and withdraws.  Mr Thackery is assigned in his place.1
4 April 2005	Original trial date.  Six defence witnesses at Court in answer to summonses arranged by amicus, Mr Ryan.  Defence counsel (then Mr Thackery) given leave to withdraw as he could not obtain proper instructions and was not permitted by the appellant to speak directly to the proposed defence witnesses.  Trial adjourned. 2
6 July 2005	Convicted at end of trial and remanded in custody for sentence.
17 August 2005	Sentenced to 21 months imprisonment.
Shortly after appellant imprisoned	Appellant “advised Mr Jefferies (he) wanted him to file an appeal …  Mr Jefferies said he was unable to do that and told (the appellant) to find someone else …”.
Not given, but apparently about September 2005	Appellant “had some contact with Lance Rowe, solicitor of Wanganui, about filing the appeal but … discovered upon … release from prison that no appeal was filed”.  With appellant’s authority, Mr Jefferies sends his trial file to Mr Rowe who acknowledges receipt of it.
May 2006	Appellant released from prison.
September 2006	Appellant “made contact with Mr Nisbet, solicitor of Wellington, and with his assistance the notice of appeal dated 14 May 2007 was finally filed”.
7 September 2006	Date of notice of appeal signed by appellant.
16 May 2007	Notice of appeal filed.

¹We draw this detail from the memorandum dated 29 January 2008 filed by Mr Nisbet in relation to this application.

²This detail comes from the affidavits sworn in relation to the present application by Messrs Ryan and Thackery, on 16 and 9 April 2008 respectively.

[28]     Beyond the details given in this chronology, we have not been provided with any explanation for the 21 month delay between conviction and the filing of the notice of appeal.  Ms Levy indicated to us that she had a letter from Mr Lance Rowe.  We declined to look at that, because it ought to have been put in evidence.  So we have nothing from Mr Rowe.

[29]     Despite all potential possibilities having been raised and explored by Ms Levy on behalf of the appellant, the lengthy delay in filing a notice of appeal (although it was an extension of time to appeal that was required) is not explained.

Result

[30]     This analysis of the two critical considerations is overwhelmingly against extending time for an appeal.  None of the other factors identified in R v Knight has any impact here.

[31]     An extension of time for appealing is refused.

Solicitors:
Crown Law Office, Wellington