The Queen v Jacob Tamati Ryland

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRAIL OF WILLIAM HENARE BROWN. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA389/01
CA391/01
CA397/01

THE QUEEN

JACOB TAMATI RYLAND
JAMES ROBERT O’CONNOR
WILLIAM HENARE BROWN

Hearing:	18 March 2002
Coram:	Gault J Tipping J Chisholm J
Appearances:	G R Lascelles for Ryland S J Shamy for O’Connor M I Sewell for Brown J A Farish for Crown
Judgment:	17 April 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

The three appellants were found guilty on one count of aggravated robbery after trial by jury in the District Court at Christchurch. For that offence Messrs Ryland and O’Connor were each sentenced to imprisonment for eight years and six months. Mr O’Connor was sentenced to an additional term of six months on a firearm charge to which he had pleaded guilty on arraignment. The appellant Mr Brown was sentenced to imprisonment for eight years. A fourth co-offender, Mr Marino, was convicted after pleading guilty to the same aggravated robbery offence. He was sentenced to imprisonment for seven years. The present appellants Messrs Ryland, O’Connor and Brown now appeal against their convictions and sentences.
On the evening of 2 December 1999 an Armourguard security van arrived at the Shell Shirley service station carrying cash with which to replenish an ATM machine inside the service station. The security guard driving the van parked at right angles to the building with the front of the van towards the building. He then went to the rear of the van and raised the tailgate. At that point a group of persons who had been awaiting the arrival of the Armourguard van in a neighbouring Kentucky Fried Chicken outlet carpark drove a stolen Ford Econovan onto the forecourt of the service station striking the rear of the Armourguard van and stopping so as to prevent the tailgate from being lowered.
A person presented a shotgun to the security guard who had left the passenger seat of the security van and was moving towards the back of that van. She was told to lie on the ground, which she did. The security van driver was also presented with a firearm and instructed to move away from the rear of his van. Another person then removed from the security van three cash boxes containing a total of $120,000. All offenders, including the driver of the van, were at least partially disguised. The offenders drove off in the Econovan which was found abandoned shortly after the robbery about one kilometre from the service station. Inside the police found a Kentucky Fried Chicken box from which were lifted fingerprints matching those of Mr O’Connor.
Two witnesses were subsequently able to identify the driver of the stolen Econovan as Mr Marino, a known associate of Mr Ryland. Mr Marino was said to have been wearing a dark wig at the time of the robbery.
Investigations by the police included the execution on 24 December 1999 of a search warrant at an address at Somme Street in Christchurch. The house was vacant at the time but the police found various items that indicated that Mr Ryland and also Mr Brown had been either living there or associating with the address. In a bedroom which the police claimed had been used by Mr Ryland the police found, folded in a plastic bag, cash totalling $960 in what appeared to be new $20 notes. With the money was a bank statement in the name of Mr Ryland. Mr Ryland subsequently, through his solicitor, sought return of this money.
In June and July 2000 the police obtained a number of interception warrants some relating to the robbery and some relating to other offending. Between 16 June and 17 July the police monitored various conversations and cell phone text messages in which Mr Ryland was a participant. Statements relied upon were said by the Crown to indicate involvement in the robbery.
On 10 July the police executed a number of search warrants in relation to the aggravated robbery. At Mr O’Connor’s address they found two sawn-off shotguns, a container of shotgun cartridges, $1,015 in cash and a dark wig said to be similar to that Mr Marino had been wearing at the time of the robbery. Mr O’Connor was charged with unlawful possession of the two firearms to which he pleaded guilty.
On 21 July a search was conducted at Mr Ryland’s Hudson Street address. The police found $1,025 in cash, two cell phones and a radio frequency scanner. Of the cash, $600 was in new $20 notes which in evidence was claimed by Mr Ryland’s partner to have been proceeds of garage sales. The two cell phones were subsequently shown to be those between which the text messages had been exchanged, allegedly between Messrs Ryland and Brown. The radio frequency scanner was found to be tuned to the police communications channel.
Evidence of financial analyses revealed that all four suspects were in receipt of benefits. The police had gained access to their accounts and those of the partners with whom they were living at the time. It was the Crown case that between December 1999 and May 2000 the four accused variously purchased motor vehicles and motor vehicle parts to the value of $19,000 paid for in cash. There were also some whiteware goods purchased to the value of $2,500.
It is necessary to trace the sequence of events in order to assess the significance to the Crown case of the intercepted or traced communications in issue. Having arrested Mr O’Connor on 10 July 2000, the police spoke to Mr Marino. He was not then charged, but he was told of evidence implicating him in the robbery. He was followed by the police the next day. He went to Mr Ryland’s address. His discussion with Mr Ryland was recorded. The Crown relied on the conversation as relating in parts to the robbery. The Crown pointed to comments relating to the fact that Mr O’Connor was arrested, to the firearms found in Mr O’Connor’s possession (said by Mr Marino to have been given by him to Mr O’Connor only a short time before the conversation), to Mr O’Connor’s arrest being reported in the newspaper that day, to the need for the “other goober up there” to be told “so that he knows what’s going down”, to Mr Ryland expecting a visit in connection with money found earlier which he was claiming from the police and to a description of cages in security vans which Mr Marino referred to as “the same cages as we had like that”.
There was evidence that the robbery on 2 December 1999 was the only one in New Zealand in which offenders had breached the internal security of a vehicle having that particular cage or racking system within which the consignment was secured.
Within 45 minutes of the discussion between Messrs Ryland and Marino a series of text messages began between Mr Ryland’s cell phone and Mr Brown’s cell phone. Mr Brown was in Motueka. The material messages were that the recipient should look at page six of that day’s “Press” of which it was said “It’ll bite u if u not careful”.
There were two earlier recorded telephone discussions between Messrs Ryland and Brown. They were on 27 June and 1 July. They reflect a close association and familiarity with cell phone messaging. There were two exchanges particularly identified by the Crown. The first on 27 June refers to new security boxes apparently shown the previous night on the television news and how they might be dealt with in the course of robberies. The second on 1 July includes a reference to the attempted recovery by Mr Ryland through his solicitor of the money found by the police.
On 14 July Mr Ryland spoke on the telephone to a person identified only as Greg. He refers to having spoken recently to “Billy” who is acknowledged to be Mr Brown. They discussed Mr Brown “coming down” soon and Mr Ryland is recorded as saying he had been talking to him “the other day” and might have scared him off; he might get arrested. Greg replies that “Robbie” [Marino] had told him. There is also reference to Mr Brown’s welfare benefit having stopped “going in”. The evidence was that Mr Brown’s benefit had been paid into Mr Ryland’s account.
The three appellants pleaded not guilty to the charge of aggravated robbery. At their trial the main issue for the jury was of identification. No eye witness described four people as having been involved in the robbery and, with Mr Marino having pleaded guilty, the Crown was presented with the difficulty of establishing that all three accused were participants. In the course of summarising the Crown case to the jury the Judge said:
Ms Farish was certainly right to remind you that each of these eye-witnesses was observing this scene from different vantage points and for differing periods of time. You may feel, it is entirely a matter for you, that while all but I think one of the eye-witnesses saw two people, the various eye-witnesses may not necessarily have been looking at the same two people. You may feel, again it is entirely a matter for you, that by and large those eye-witnesses were concentrating on the person or persons who they were principally focussing upon and as between say two different eye-witnesses you may think they could have been focussing on different people. It is entirely a matter for you.
The guilty verdicts in respect of all three appellants indicates acceptance of the Crown contentions.
In support of Mr Ryland’s appeal against conviction Mr Lascelles’ primary submission was that the verdict was unreasonable and not supported by the evidence. He referred to the evidence of the eye witnesses and contended that the weight of evidence established that only three persons participated in the robbery. On that basis, since Mr Marino had pleaded guilty, it could not be beyond reasonable doubt that Mr Ryland was one of the other two. His argument was that the finding of the jury that there were four participants (it was not suggested that any one of the appellants was a party though not present at the scene) was not available on the evidence. This ground of appeal was supported on behalf of Messrs O’Connor and Brown.
Since no witness saw four people at the scene the Judge counselled caution in his directions to the jury.
If you cannot be satisfied that there were more than two persons involved, apart from Mr Marino, you must, I think, bear in mind, ladies and gentlemen, that the overall weight of the evidence is that two persons got out of the van, one shorter than the other, the short one giving the impression of being a blond woman.
If you find you cannot exclude as a reasonable possibility that only two persons accompanied Marino to the service station, you will have to scrutinise all of the evidence with great care in deciding whether Mr Ryland or Mr Brown or Mr O’Connor or any two of them got out of the van at the service station and carried out this robbery.
I want to give you perhaps an example in relation to the suggestion that there is this major flaw in the Crown case. I am not suggesting, ladies and gentlemen, that this is the situation in this case because, as I hope I have made abundantly clear, it is solely for you to decide what the evidence actually establishes. But let us suppose three people are on trial by jury having been jointly charged with an offence. I will call them, for the purposes of this example, A, B and C. If the overall weight of the evidence was such that the jury decided that there was a reasonable possibility that two, not three, people committed the offence and if the jury was satisfied beyond reasonable doubt that one of the three accused was involved, let us say A, and if the jury were to decide that either B or C must also have been involved in committing the offence, then, as you will no doubt be aware, a problem arises. It cannot then be a question of the jury deciding, for example, that B was more likely to have been involved than C. What is the more likely alternative is not good enough because a decision that B was the more likely offender obviously does not rule out the possibility that it was C. As I am sure you will appreciate, in respect of that example, if there was a reasonable possibility on the evidence, that it was C then the jury could not be satisfied beyond reasonable doubt that it was B or vice versa. So likelihood or probability is simply not enough. What is required in a criminal trial, as I have explained, is proof beyond reasonable doubt that the offence was committed by the particular accused whose position the jury is considering so that the jury is sure on all the evidence that that accused is guilty. Whether in this case you consider it a reasonable possibility on the evidence that only two men accompanied Marino, and that is a matter entirely for you, then you must not decide the cases against these accused by looking at the probabilities. Remember that it is proof to a significantly higher standard that is required, proof beyond reasonable doubt. All three defence counsel submitted to you that the evidence falls well short of proving participation by more than a total of two persons, along with the driver, or participation by any of these accused to that high standard.
We are satisfied that there was evidence on which the jury could conclude that more than three persons were involved. There clearly was the van driver (Mr Marino) and an unarmed man who took the cash containers from the security van and placed them in the stolen van. The contest was as to whether there was one person with a gun or two persons each with a gun. The evidence of the two security guards is not entirely consistent. Each only saw three people including the driver. Each saw only one person with a gun. But the security guard who came from the passenger side of the Armourguard vehicle and was moving towards the rear saw the person with a gun approach from her right. That is not entirely consistent with the driver of the security van who was on the other side of his vehicle and who believed the person with the gun he saw came from the side sliding door of the Econovan. One described the person she saw with the gun as Caucasian (Mr O’Connor was the only accused who was Caucasian) with long messy blonde hair with a fair sort of face. She described the person whom she thought was female wearing loose fitting clothing. She described the gun she saw held by this person as about 28 inches long.
The description given by the other security guard was of a person who was very slight and quietly spoken. He thought there was a wig. He had an impression of something blond but was unable to relate that to hair or clothing. He described a long-barrelled firearm – not sawn-off. Though he was able later to identify Mr Marino as the driver (“a mountain of a man”), he could not identify the gunman.
Ms Elliott saw the Econovan in the carpark of the Kentucky Fried Chicken outlet next to the service station. She saw in the front a person she took to be a Caucasian, she thought a woman, with long blonde frizzy hair. When the van moved over to the service station forecourt she saw a person with a short double-barrelled shotgun whom she thought may have had a balaclava on and whom she heard yelling “get down”.
Mrs Fraser, while waiting in line at a drive-through, saw the robbery through her rear-vision mirror. She described the person she saw with a gun as of medium build with dark clothing and some sort of dark coloured balaclava or headgear. She described the weapon as neither a pistol nor long enough for a rifle. She saw the gunman before the security van was struck by the other van. She saw no-one with blond hair. She rang the police on her cell phone.
Mr Hutton was the shift manager of the service station. He was inside working one of the tills. He had a view of the forecourt through the window. His attention was attracted by the sound of the collision. He said he saw the side door of the van fling open and a large man, he believed Maori, step out with a double-barrelled cut-down shotgun. He described a bandanna round the lower part of the face and dreadlocks. He believed that someone else, slightly smaller and darker skinned, came out of the van, also armed.
Mr Hutton’s evidence was subjected to some criticism by counsel before us and no doubt also before the jury. His evidence nevertheless was available to the jury to accept if they found it credible and reliable. That was for them. Plainly the gunman he described was not the same as the blond-wigged person others saw earlier in the front of the van and at the time of the robbery approaching the female security guard. We have not been persuaded that the finding that four people were involved is unsupported by the evidence.
Mr Lascelles raised several other aspects of the evidence which he contended were not sufficiently linked to Mr Ryland, or otherwise lacked probative value against him. However, in a case resting heavily on circumstantial evidence, it is seldom productive to attack the weight separately of individual factors. We are satisfied that the evidence relating to the money located at the Somme Street address was sufficiently linked to Mr Ryland to warrant consideration by the jury as was the financial analysis of his account and that of Ms Reid, particularly in light of her evidence called for the defence.
The lapse of time between the robbery and the search of the property at Hudson Street does not render entirely irrelevant the items located when they are considered in conjunction with the other evidence.
The contention that there was no proof that Mr Ryland was a party to the text messages cannot be accepted. There was ample evidence from which the jury could infer his participation in those discussions and communications.
There remains then the submission that overall there was insufficient evidence on which the jury could be satisfied beyond reasonable doubt that Mr Ryland was one of those who carried out the robbery; that it goes no further than indicating that he associated with others including Mr Marino and thus had knowledge of the robbery.
We are satisfied that it was open to the jury to find on the evidence that Mr Ryland was a participant in the robbery. There was available a combination of factors pointing to his involvement. There was the evidence of Ms Tamasese that Mr Ryland lived or spent time at the Somme Street address where the police found on 24 December 2000, very shortly after the robbery, $960 in new notes and a bank statement in Mr Ryland’s name. His attempts to recover this money acknowledge it was his. The money subsequently found at his Hudson Street address included $600 in new notes. The explanation that this belonged to his partner and was the proceeds of garage sales could have been readily rejected by the jury. There was the financial analysis and the evidence of spending in the period after the robbery. Then there was the discussion with Mr Marino on 11 July, the day after Mr O’Connor’s arrest and Mr Marino’s police interview, in which there was reference to efforts to recover the $960 and the telling reference to the previously unbreached security vehicle cages “as we had like that”. Immediately thereafter there were the text messages referring to the newspaper report obviously of Mr O’Connor’s arrest which the jury were entitled to find were sent by Mr Ryland.
We find nothing unreasonable in the jury conclusion that Mr Ryland was a participant in the robbery with Messrs Marino and O’Connor. Mr Ryland’s appeal against conviction therefore is dismissed.
We turn to Mr O’Connor’s appeal against conviction. Once his evidence explaining his fingerprints on the Kentucky Fried Chicken box in the robbery vehicle was rejected, the case against him was strong. Mr Shamy on his behalf raised three points in support of his appeal. The first was that the trial Judge was wrong to allow the Crown to lead evidence of his possession of the two shotguns found at his address on 10 July 2000. It was submitted that there was no sufficient evidence to provide a platform for an inference that the firearms were the same as those used in the robbery and that the evidence was highly prejudicial to the accused. In a case resting heavily on circumstantial evidence it is no easy task to contend that one strand of evidence is incapable of contributing an element in the proof. While it is true that the two guns found in Mr O’Connor’s possession did not match the descriptions given by witnesses at the scene of the weapon or weapons they saw, the guns found in his possession were not wholly inconsistent with those descriptions, and there was Mr O’Connor’s statement to the police (later recanted) that he had cut them down. There is also the fact that the wig, similar to that said to have been worn by the driver of the robbery vehicle, was found at the same address.

There was the intercepted discussion during which Mr Marino described having bought the guns only a short time before and having taken them to Mr O’Connor for storage. It is not clear how that is admissible for or against Mr O’Connor but, if it was, it was for the jury to evaluate. In fact his counsel relied on it as undermining the Crown case.
Mr Shamy was critical of the Judge’s reasoning in his ruling because he relied upon the combination of other aspects of the evidence which were unconnected with the firearms in order to justify the finding that Mr O’Connor’s possession of them could be proved. But we do not accept that every piece of evidence intended to construct a circumstantial case must be independently shown to be inter-connected or linked to the crime. It may be the very coincidence of factors that establishes such links.
We are not persuaded that the Judge erred in admitting this evidence. We note that the Judge directed the jury to be cautious in reaching a conclusion that they were the guns used in the robbery.
The second point argued in support of Mr O’Connor’s conviction appeal is that the Judge wrongly permitted Crown counsel to cross-examine Mr O’Connor in relation to certain equipment found at his address when earlier the Judge had ruled that photographs of that equipment could not be introduced as part of the Crown case because there was no adequate proof of their link with the accused.
Generally cross-examination is prohibited where it seeks to establish that which has been ruled inadmissible (e.g. a confession) Wong Kam-Ming v The Queen [1980] AC 247. But that is not the same as the situation that arose at the trial in this case. Here we are concerned with evidence that was excluded as part of the Crown case due to the Crown’s inability to establish an evidential foundation for its relevance. Unlike the confession example, the evidence is not inherently inadmissible once shown to be relevant. We see no reason why the Judge should not have allowed Crown counsel to attempt by cross-examination to establish the very links that could not be demonstrated as part of the Crown case – that Mr O’Connor had purchased after the date of the robbery equipment that appeared new and would have been expensive. We reject this point.
A third point was raised in respect of the intercepted conversations and text messages. Mr O’Connor was not a party to these communications so they were not admissible in the case against him. But we were not referred to any parts of those communications relied on by the Crown against Mr O’Connor. Once a transcript of the Crown’s closing address to the jury became available it was clear that there is nothing in this point.
Accordingly Mr O’Connor’s appeal against conviction also is dismissed.
Mr Brown’s appeal against conviction presents more difficulty. The Crown case against him rested on his close association with Mr Ryland in particular and what the jury might make of the exchange of text messages between them. But the significance of the text messages could be inferred only by reference to intercepted conversations between Mr Ryland and each of Mr Marino and “Greg”. Mr Brown was not a party to those conversations. There could be no suggestion that there was continuing at the time of the conversations any joint enterprise for the commission of the armed robbery. Therefore statements to which he was not a party are inadmissible against Mr Brown. Not only does that leave a considerable gap in the Crown case, but there is also the fact that the Judge, in directing the jury, did not tell them that the evidence of these conversations was not to be considered in relation to Mr Brown. The direction that was given was confined to statements made to the police.
The telephone discussion on 1 July 2000, to which Mr Brown was a party, was said by Ms Sewell who appeared in support of the appeal, to have contained matter more prejudicial than probative. We are inclined to agree with that submission insofar as the conversation is taken separately from the others to which Mr Ryland was a party. We should add that had there been more probative subject matter we would have had little sympathy for the prejudice claimed to be likely to flow from general discussion relating to wide ranging criminal activities and intentions forming the context in which probative statements were made.
It was further submitted that the evidence of the detective who interviewed Mr Brown on 21 July involved breaches of the rule in R v Halligan [1973] 2 NZLR 158 because of opinions expressed by the detective in the course of the interview. We were not concerned on this matter because it was adequately dealt with by an appropriate direction to the jury, though we consider the detective may have overstated the position in his summary of the intercepted conversations he put to the accused.
Our concern for the safety of the verdict is therefore confined to the likely use by the jury of the intercepted conversations to which Mr Brown was not a party. On that ground the appeal against conviction must be, and is, allowed. A new trial is ordered.
There remains then to deal with the appeals against sentence by Messrs Ryland and O’Connor.
Mr Lascelles, for Mr Ryland, did not pursue the appeal against sentence in his case. It is accordingly dismissed.
On behalf of Mr O’Connor, Mr Shamy submitted that for this offence of aggravated robbery the starting point adopted by the Judge of imprisonment for eight years and six months is excessive. He submitted further that the sentence of six months for the offence of possession of firearms should not have been made cumulative – particularly in light of the ruling allowing evidence of the possession of the firearms to be given on the robbery charge.
We are not persuaded that we should interfere with the sentence. We do not accept there was no physical violence. Driving a vehicle in under a raised tailgate of the security vehicle, colliding so as to prevent the tailgate closing, constitutes use of a vehicle in a violent manner endangering both the security officers as they prepared to unload their vehicle and others in the vicinity. One or more firearms was or were presented to the security guards and one of them was forced to lie on the ground in the service station forecourt. While it was not established whether the guns were loaded, if they were, their use at a busy service station posed serious risks to members of the public.
This was a well-planned, audacious raid, with the trappings of disguises and the use of a stolen vehicle, for which a starting point of eight years and six months was entirely within the range open to the Judge in terms of R v Mako [2000] 2 NZLR 170. There was also the point noted by the Judge that the offence bore the hallmarks of a gang operation.
Mr O’Connor was unable to draw upon mitigating factors and had numerous previous convictions, including two in 1992 for conspiracy to commit aggravated robbery.
The possession of the two firearms (sawn-off shotguns) related to a time some months after the robbery. This was not a case of guns being used in a robbery and then disposed of. These guns, if they were used in the robbery, were retained for a substantial period, cut down and held, presumably for further use. We do not see it as inappropriate that the possession offence was treated as separate from, and additional to, the robbery so as to call for an additional cumulative sentence.
For the total offending by this offender, the cumulative sentence of nine years imprisonment is neither excessive nor inappropriate. Mr O’Connor’s appeal against sentence also is dismissed.

Solicitors
S J Shamy, Christchurch, for O’Connor
Glover Sewell, Christchurch, for Brown
Raymond Donnelly, Christchurch, for Crown

[2002] NZCA 70

17 April 2002