The Queen v Hitchings

[2006] NZCA 322

IN THE COURT OF APPEAL OF NEW ZEALAND

CA519/05

THE QUEEN

v

WAYNE PETER HITCHINGS

Hearing:29 August 2006

Court:O'Regan, Williams and Heath JJ

Counsel:J B Samuel for Appellant

H D M Lawry for Crown

Judgment:27 November 2006 at 12.00 noon

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

BThe appellant is forthwith to begin his sentence of 40 hours community work.

REASONS OF THE COURT

(Given by Williams J)

[1]        Mr Hitchings was tried before Judge Field and a jury in the District Court at Auckland between 25 and 27 October 2005 on a single count of burglary.  The Crown alleged that on 8 January 2005 Mr Hitchings entered business premises situated at 16 Waikaukau Road, Glen Eden, Auckland, without authority and with intent to commit a crime.

[2]         The central issue at trial was identification.  Alibi evidence was given.  The jury convicted Mr Hitchings.  He appeals against conviction.

Grounds of appeal

[3]         Two grounds of appeal were raised on behalf of Mr Hitchings.  The first was an alleged failure on the part of the Crown to make timely disclosure of evidence of a telephone call made at 8:19pm on 8 January 2005 from Mr Hitchings’ home.  The second was that the jury verdict was unreasonable or could not be supported having regard to the evidence. 

[4]         The first ground of appeal goes to the fairness of the trial process.  The right to a fair trial is guaranteed by s 25(a) of the New Zealand Bill of Rights Act 1990 (the “Bill of Rights”).  Were something to have gone wrong in the trial process that meant Mr Hitchings was unable to present his case adequately, that could amount to a miscarriage of justice giving rise to an order directing a new trial.

[5]         The second ground involves consideration of the jury verdict.  It is not for this Court to determine whether we consider the jury verdict was right; rather, the issue is whether the verdict was open to the jury on the evidence adduced at trial:  R v Ramage [1985] 1 NZLR 392 (CA).

[6]         Subsumed within the second ground was a complaint about the adequacy of the caution to the jury on the question of visual identification.  At the hearing of the appeal, Mr Samuel, for Mr Hitchings, conceded that he could not challenge the trial Judge’s directions on identification.  We agree that the direction on identification evidence was unimpeachable and fully complied with s 344D of the Crimes Act 1961.

Background facts

[7]         On the evening of 8 January 2005, a male gained entry to the premises at 16 Waikaukau Road, Glen Eden.  The property is a 10-acre block owned by Mr and Mrs Sweetman.  It includes three film studios, an art department, workshops, production offices, other buildings associated with the Sweetman’s film business, and a flat.  A workshop was entered through an open front door.  A flounder light and battery were removed, together with a bag containing five fishing reels. 

[8]         Mr and Mrs Sweetman had returned that day from holiday and were unloading their car into the workshop.  After a meal, Mrs Sweetman was taking out rubbish when she saw a man come out of the unlocked workshop with items in his hand and make his way down to a fence fronting Waikaukau Road.  She followed him and discovered the intruder crouched inside the fence.  She confronted him and accused him of stealing.  He pulled up the fence and ran away.  The flounder light and battery were located a short distance from the premises.  The five fishing reels were never recovered.

[9]         Mrs Sweetman timed her sighting of the intruder at “about” 8:00pm.  Mr Sweetman responded to his wife’s call at what he described as “7:30/8:30 in the evening” though later he said it was “closer to 8 than 7:30”.  A security guard hired by the couple who followed Mrs Sweetman down to the fence and saw the intruder timed the incident at “about 8” though when asked in cross-examination “about 8 or 8:15?” he replied “Yes, two of those times”.

[10]     The Police log recorded a call to report the burglary at 8:15pm.  While Mrs Sweetman said she telephoned the Police after seeing off the burglar, her husband named as the complainant in the Police records.  There was no evidence as to the interval between the burglar’s departure and the call being made to the Police.

[11]     In closing the Crown case to the jury, counsel emphasised that Mrs Sweetman said that the whole incident, from the time she observed the burglar to the time he escaped from the surrounds, took about 15 minutes.

[12]     By an extraordinary coincidence, two or three days later Mrs Sweetman saw a man at the Post Office in Glen Eden whom she was convinced was the burglar and the man she had seen running from her property.  She watched him leave the Post Office and get into a motor vehicle.  Mrs Sweetman recorded the registration number.  The vehicle was registered in the name of Mr Hitchings’ mother.  It was common ground that the driver and the man she saw in the Post Office was the appellant.

[13]     On 4 February 2005, a Constable Hutton inherited the file and went to Mr Hitchings’ home.  Mr Hitchings told Constable Hutton that he was the only person who drove the vehicle.

[14]     On 9 March 2005, Constable Hutton returned and spoke to Mr Hitchings.  This was the first occasion on which the topic of the burglary had been raised with him.  Mr Hitchings declined to answer questions.  He was arrested and charged with burglary.

[15]     On 8 May 2005, Mrs Sweetman was shown a photograph montage, including a photograph of Mr Hitchings.  She identified Mr Hitchings in the photograph as the person she saw leaving the burgled address.

[16]     There was no evidence at trial of the actual distance between 16 Waikaukau Road and Mr Hitchings’ home at 1/135 Parr’s Cross Road, but the jury was given an excerpt of a road map of the area which showed the properties were in relatively close proximity.  Even so, there was no evidence of the time it might take a person of Mr Hitchings’ age and medical condition – he is an asthmatic – to walk or run between the two properties.

Alibi and inquiries

[17]     On 1 August 2005, after Mr Hitchings was committed for trial, his solicitors gave a notice of alibi which stated:

1.   Our client is intending to call his mother, Dulcie Hitchings of 1/135 Parrs Cross Road, Glen Eden to give evidence that on the night in question he was at home with her.

2.   Our client may possibly adduce alibi evidence from a Mary Webb, 8 View Road, Mangere and Allan Watt, Constellation Drive, Mairangi Bay, …. .

[18]     The officer-in-charge of the investigation made inquiries about the intended alibi.  He was unable to locate a witness by the name of Mary Webb at the address given.  He ascertained she had moved to Wellington.  She was located and, on 18 October 2005, interviewed by Police.

[19]     Ms Webb told the Police she travelled to the Bay of Islands on 8 January 2005 and telephoned Mr Hitchings from her cellphone to his landline between 8:00pm and 8:30pm.  She said the call did not appear on her mobile telephone account.

[20]     Mrs Dulcie Hitchings, Mr Hitchings’ mother, was interviewed on 14 October 2005.  She said that she watched “Antiques Road Show” on TV1 from 7:30pm until about 8:30pm on 8 January 2006.  While Mr Hitchings had been at home with her, he was in and out of the room

[21]     However, by 19 October 2005 Police had received information that the advertised “Antiques Road Show” did not screen on TV1 on 8 January 2005 because of extended cover of a match at the ASB Classic tennis tournament. 

[22]     Further again, by 19 October 2005 Police had received information from Telecom that there was only one call made from Mr Hitchings’ land-line between 7:00pm-9:00pm on 8 January 2005 and there were no incoming calls, either from Ms Webb or anyone else, during the same period.  The inquiry indicated the outgoing call was to a Ms Bishop, commenced at 8:19pm and lasted for almost 20 minutes.

[23]     During the week before trial, the prosecutor and the defence counsel discussed the matter.  The Crown advised Mr Samuels it would proceed with the charge on the basis that the Crown had evidence to rebut the alibi but did not advise Mr Samuels of the details of the evidence because of the decision of this court in R v Shaqlane CA341/00 5 March 2001.

[24]     Prior to commencement of trial, the position was, therefore, that Mr Hitchings had given an alibi notice in the form earlier recited and he and his counsel knew that from inquiries made by Police the Crown had evidence which was said to rebut the alibi, but were unaware of its detail.

Course of Trial

[25]     The trial proceeded in the conventional fashion with Mr Hitchings, his mother and Ms Webb all giving defence evidence.  Both the appellant and Ms Webb said she telephoned him from her mobile telephone at about 8:00 or 8:30pm on 8 January whilst Mrs Hitchings watched “Antiques Road Show”.  The appellant and Ms Webb sought to explain the omission of any reference to her call from her telephone account as arising through a fault in Telecom’s billing system – an assertion they sought to support by calling a computer consultant who gave evidence that such things occasionally occur – and both the appellant and his mother were insistent that “Antiques Road Show” broadcast that evening even though it was suggested in cross-examination that such was not the case.

[26]     However, we were advised by Mr Lawry, Crown Counsel, that during Mrs Hitchings’ examination-in-chief, the prosecutor reconsidered the position concerning the alibi, twigged that there was possibly another explanation and directed the officer-in-charge to telephone Ms Bishop.  She confirmed that Mr Hitchings, not his mother, telephoned her on 8 January at about 8:19pm and she spoke to him for a time and then spoke to his mother.  The Crown prosecutor then advised Mr Samuels of the result of the inquiry and gave him a copy of the call trace confirming details of the connection.

[27]     Counsel then agreed that Mr Hitchings could be recalled to comment on the call to Ms Bishop.  That occurred.  The appellant said he could not remember the call.

[28]     The Crown then called rebuttal evidence from Telecom giving details of the call to Ms Bishop and rejecting the suggested billing error, and from Television New Zealand to confirm that the “Antiques Road Show” programme was not shown at the advertised time on 8 January 2005. 

[29]     We called for counsel’s closing addresses. 

[30]     That from the Crown prosecutor read as if it was prepared prior to the further inquiries.  Though it referred to the rebuttal evidence from Telecom and Television New Zealand, it omitted reference to the call to Ms Bishop, being content to rely on the lack of any evidence of the suggested call from Ms Webb.

[31]     Mr Samuels’ address attributed blame for the billing error on some computer oversight and endeavoured to suggest that at the relevant time Mrs Hitchings may have been watching a broadcast similar to “Antiques Road Show” on another channel.  Mr Samuels dealt with the call to Ms Bishop by emphasising the lack of the appellant’s recall of the connection and the precision as to the time of the burglary.

Submissions

[32]     Mr Lawry submitted that the telephone record was not discloseable as of right to Mr Hitchings because it was evidence gathered for the purpose of impeaching his alibi evidence.  It demonstrated affirmatively that no incoming telephone calls were received at the time Ms Webb was alleged to have made her cell phone call to Mr Hitchings.  Mr Lawry relied upon Shaqlane as authority for the proposition that disclosure was not required in those circumstances. 

[33]     Mr Lawry also submitted that the Crown had fully complied with its disclosure obligations and, whatever the position may have been with regard to timely disclosure, by the time the jury considered its verdict it had possession of all relevant information.  In particular, the jury knew that the outgoing telephone call had been made; it knew the length of the telephone call; it knew that Mr Hitchings had no recollection of the call to Ms Bishop being made; and it knew that Mrs Hitchings did not remember calling Ms Bishop that day. 

[34]     In those circumstances, Mr Lawry submitted that the available pool of evidence could not be improved.  For that reason, he contended that there was no undermining of Mr Hitchings’ guaranteed right to a fair trial

[35]     Mr Samuel’s complaints about the failure to disclose information concerning the telephone evidence were:

a)The failure to disclose the existence of the Hitchings’ telephone record at or shortly after the time it was first received by the Police;  and

b)Failure to disclose the name and address of a potential witness, Ms Bishop, who had been interviewed by the Police but was not called to give evidence.

[36]     He submitted that the telephone record was relevant not only to impeachment of alibi but also to a line of inquiry the defence may wish to undertake concerning a fundamental aspect of the alibi, namely that Mr Hitchings was at home with his mother at the relevant time.

[37]     Mr Samuel submitted that, had the telephone record been disclosed pre-trial, the case would have been run differently.  In particular, it would have moved in focus from the doubtful telephone call from Ms Webb to the firmer ground of a known outgoing telephone call to Ms Bishop.

Discussion and Decision

[38]     In R v Brown [1997] 3 All ER 769 (HL) at 777-778, the authority on which Shaqlane is based, Lord Hope of Craighead, delivering the principal speech in the House of Lords, said:

Two questions must therefore be addressed: (1) is it reasonable to distinguish material which may assist the defence case from material which relates only to the credibility of the defence witnesses; and (2) is it consistent with the general principle of fairness to say that the Crown is not under a legal duty to disclose material which is relevant only to a defence witness’s credibility? It should be understood that, in posing these questions, I am concerned not with the defendant but only with the defence witnesses.

As to the answer which should be given to the first question, there is no doubt that in practice the credibility of a witness is frequently tested by reference to material which is not directly relevant to the issues of fact which the judge or jury have to decide–material which, to adopt Steyn LJ’s expression (at 1607), is collateral. Questions which are directed to the character of the witness provide one example. The fact that a witness has previous convictions, especially for crimes which imply dishonesty or disrespect for the law, may be of great significance in regard to issues of credibility. But it has nothing to do with the question whether the offence with which the defendant is charged was committed or whether it was the defendant who committed the offence. If the witness is not called on to give evidence, evidence of his previous convictions will be irrelevant and inadmissible. It will have no bearing whatever on the facts of the case. Other facts or circumstances may be used which are entirely irrelevant to the issues of fact as to the defendant’s guilt or innocence, such as things done or said by the witness which may indicate a prejudice for or against the defendant. The same may be said of material regarding the capacity of the witness to observe or recall the events spoken to in his evidence. Here again, if the witness is not called to give evidence this material will be irrelevant.

There are, of course, cases where the question of credibility is so intimately bound up with the facts that the two cannot reasonably be separated. A good example of this is where an account is given by the witness of his recollection of events which contains within it contradictions or inconsistencies which cast doubt on his reliability. Another is where his account is contradicted by other witnesses, so that the issues of credibility and reliability have to be decided by assessing the weight of the evidence. So it is not possible to say that material relating to the credibility of defence witnesses will always be distinguishable from the issues of fact relating to the defendant’s guilt or innocence. But it is enough for an affirmative answer to the first question to say that much of the material which is regularly used in practice to test a witness’s credibility is entirely irrelevant to the question whether the defendant is guilty or innocent of the offence with which he is charged. In the case of the defence witnesses in particular, the issues of fact raised by the defence case do not exhaust the material which may be used by the prosecutor to test their credibility.

As to the second question, the principle of fairness lies at the heart of all the rules of the common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses. The legal representation to which he is entitled, usually with the benefit of legal aid, has the responsibility of performing these functions on his behalf. To repeat the words of Diplock LJ in Dallison v Caffery [1964] 2 All ER 610 at 622, [1965] 1 QB 348 at 375, the duty of the prosecutor is to prosecute, not to defend. The important developments in the prosecutor’s duty of disclosure since he wrote these words have not altered the essential point that there is a difference between the functions of the prosecutor and those of the defence. The prosecutor’s duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.

[39]     In Shaqlane, the issue was whether the appellant’s case had been prejudiced by the Crown’s refusal to disclose statements taken by the Police from alibi witnesses.  There is no suggestion in the judgment that the evidence gathered to impeach the alibi was relevant to any other issue at trial.  In those circumstances it is easy to understand why this Court concluded, at [19]:

… [Lord Hope of Craighead’s speech in R v Brown] also noted that cross-examination which is directed only to credibility may lose much of its force if the line is exposed in advance.  To insist on disclosure of the alibi statements would, sooner or later, undermine the process of trial itself.  It would protect from challenge those who were disposed to give false evidence in support of the defence which had been fabricated.  This would be to tip the scales too far.  We agree.  In our view, there was no obligation on the Crown to produce the statements in this case.

[40]     For an appeal against conviction to be allowed Mr Hitchings must persuade us that the irregularity amounts to denial of the right to a fair trial: R v Sungsuwan [2006] 1 NZLR 730 (SCNZ) at [6] (Elias CJ), [64]-[67] (Gault J, delivering the judgment of himself, Keith and Blanchard JJ) and [111]-[112] (Tipping J). In other words, it is necessary for something to have gone wrong with the trial process which results in a conclusion that the verdict is unsafe.

[41]     It is to be recalled that the nub of the appellant’s appeal is that the Crown failed in its disclosure obligations in the ways previously recounted. 

[42]     That seems to us to resolve into two questions, namely, whether the Crown’s actions prior to commencement of the trial complied with its obligation and, secondly, whether the way in which the trial proceeded amounted to denial of Mr Hitchings’ right to a fair trial.

[43]     Before dealing with those questions, it is pertinent to note that although Mr Hitchings and his advisers must have checked Ms Webb’s telephone records prior to trial and knew they had to meet the omission of any recorded call from her to Mr Hitchings at a time which might have been relevant to whether he could have committed the burglary, it does not appear that they investigated what would seem to have been the obvious additional step, namely, for Mr Hitchings to obtain his mother’s telephone records from Telecom.  Had they done so, there was always the possibility it would have shown the incoming call from Ms Webb at about the relevant time, thus assisting Mr Hitchings’ notified alibi defence but those records would also have disclosed the call from the Hitchings’ phone to Ms Bishop at about the relevant time.  It must be remembered that those telephone records were Mr Hitchings’ (or, technically, his mother’s) and thus would have been available to the appellant as of right had he chosen to seek them.  Whilst it was open to the Crown, as it ultimately did, to obtain the Hitchings’ telephone records from Telecom on subpoena, in terms of a complaint concerning lack of disclosure, it is not possible to see the Crown as having an obligation to conduct that investigation prior to trial.  And whether it had an obligation to disclose once it obtained the information concerning the call to Ms Bishop is a factor requiring discussion under the second of the questions we have posed.

[44]     Had Mr Hitchings and his advisers conducted what seems to us to be the obvious inquiry into his telephone records, a second or alternative alibi notice could have been given and the appellant would not then have been in the difficult position of trying to advance the Webb call at the relevant time plus the “Antiques Road Show” broadcast alibi defence knowing the Crown was in possession of evidence to rebut those issues, though not disclosing the detail on which they were relying.

[45]     Turning then to the first of the questions we have posed, this Court in Shaqlane defined the Crown’s disclosure obligations in relation to evidence obtained by it to rebut notified alibi defences.  In that case, prior to trial, the accused’s counsel requested copies of the interview notes of one of the accused’s named alibi witnesses.  The Crown declined to supply a copy, relying on Brown. This Court agreed, in the observation recited at [39].

[46]     We take the same view in this appeal.

[47]     Prior to the commencement of Mr Hitchings’ trial, the Crown had evidence that the “Antiques Road Show” was not broadcast at the advertised time on 8 January 2005 and had Mr Hitchings’ telephone records which showed an outgoing call from his number to another identified number commencing at 8:19pm and lasting about 20 minutes.  The Crown advised the defence that it had evidence to rebut the alibi notice.  On the authority of Shaqlane and Brown, it was not obliged to go further at that stage of the criminal process.  In particular, it was not obliged to disclose the detail to the appellant.  This aspect of the appeal accordingly fails.

[48]     What difficulty there is in this appeal arises in relation to the second question.

[49]     The only additional information which came into the Crown’s possession after the beginning of the trial was the identity of the person called from the Hitchings’ phone at 8:19pm, coupled with the telephone discussions between the officer-in-charge and Ms Bishop which fleshed-out the fact of the call and the likely participants.

[50]     It is to be recalled that the Crown only came into possession of that additional material because the Crown prosecutor asked for further inquiries to be made mid-trial.  But, again on the authority of Shaqlane and Brown, there was no obligation on the Crown to make further disclosure to the defence at that stage.  The defence had been aware from before the trial began that evidence was available to rebut the alibi notice.  The extra detail which came into the Crown’s possession during the trial did no more than elaborate on that fact.

[51]     The way in which the matter emerged and the agreement between counsel that Mr Hitchings would be re-called so the Bishop information could be put to him may have meant he was somewhat disadvantaged in front of the jury in having, with his witnesses, given evidence in support of the alibi notice and then, in the course of the trial, having to meet contradictory evidence bearing on the correctness of his alibi.

[52]     But, for the reasons already mentioned, having given his alibi notice and then being told evidence was available to rebut it, he was always going to be in a difficult position in pursuing one alibi and then being presented with contradictory evidence whatever it turned out to be.

[53]     That would also be the position were we to take the view that the Crown failed in its disclosure obligations and order a re-trial because, at any re-trial, if the appellant gave an alibi notice relying on the Bishop call evidence, he would inevitably be confronted in cross-examination with his earlier reliance on the Webb call/“Antiques Road Show” alibi.  That similarly would be the case if, at any re-trial, he simply repeated his 1 August 2005 notice or if he expanded that notice to include evidence of the call to Ms Bishop.

[54]     It must be recalled that this aspect of Mr Hitchings’ appeal is entirely grounded on a claimed breach by the Crown of its disclosure obligations and the consequent lack of a fair trial.

[55]     We take the view, on the second question, that, on the authority of Shaqlane and Brown, no breach by the Crown of its disclosure obligations has been demonstrated and that, although the evidence came out in a somewhat unconventional and, for the appellant, contradictory and difficult fashion, in the end the jury had before it for its consideration all the relevant evidence as to the correctness or otherwise of the appellant’s alibi.

[56]     In those circumstances, we take the view that the second question which we have posed must also be answered against the appellant.

Can the verdict be supported by the evidence?

[57]     In this regard, it is sufficient to say that, having regard to the evidence adduced at trial, we take the view it was open to the jury to return a verdict of guilty.  While Mr Samuel has pointed to aspects of the case which were favourable to Mr Hitchings, it follows from what we have said that the test set out in Ramage has not been met.

Result

[58]     The appeal against conviction is dismissed.

[59]     Mr Hutchings was sentenced to 40 hours’ community work.  He is forthwith to make arrangements with the appropriate authorities to begin that sentence.

Solicitors:
Jennifer G Connell, Greenwood’s Corner, Auckland
Crown Law Office, Wellington