The Queen v Jamie Beattie Lockett
[2002] NZCA 252
•30 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA47/02 |
THE QUEEN
V
JAMIE BEATTIE LOCKETT
| Coram: | McGrath J Anderson J Glazebrook J |
| Counsel: | C P Comeskey for Appellant A Markham for Crown |
| Judgment (on the papers): | 30 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J |
On 30 January 2002 Jamie Beattie Lockett was found guilty by a jury in the District Court at Auckland on a charge of wilful damage under s298 of the Crimes Act 1961 and sentenced to four months periodic detention.
Mr Lockett’s appeal against conviction and sentence was heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
Background
The Crown case at Mr Lockett’s trial was that on 21 July 2000 he had used a piece of wood with nails protruding from it to scratch the paint on the metal panels of a Mercedes Benz motorcar belonging to a business controlled by a Mr Radisich and to engrave an expletive on its boot cover.
It appears there was a civil dispute between Mr Radisich and Mr Lockett’s former partner, Ms Clark, over the ownership of a Porsche. Ms Clark and Mr Radisich arranged to meet at a storage yard on Beach Road in Auckland for Mr Radisich to retrieve the Porsche. He drove to the yard in a blue Mercedes which he parked on the street outside. The Porsche would not start and a tow truck was called. In the meantime Mr Lockett had arrived at the premises in an agitated state. Mr Radisich’s evidence was that he saw Mr Lockett scratch the Mercedes, although it was somewhat unclear whether he had seen him actually use the wood to do this. The wood was later recovered. Several witnesses stated that they had seen flecks of blue paint on the nails protruding from the piece of wood, although these did not show up in the police photographs and were no longer visible when the wood was produced at trial.
Mr Lockett claimed he had the wood in his hand to protect himself from a dog, but the police were unable to locate any dog in the vicinity. He denied scratching the car but admitted letting its tyres down. He also admitted an altercation with the tow truck driver and some skirmishing with Ms Clark.
During his closing address to the jury Mr Comeskey argued that the scratches were caused by someone other than Mr Lockett. The defence case was that Mr Lockett was agitated because he believed that he had a security interest in the Porsche and did not wish Mr Radisich to take possession of it for this reason. Mr Comeskey also suggested that tensions existed between Messrs Radisich and Lockett because Mr Radisich had been in a romantic relationship with Ms Clark.
Grounds of appeal and associated submissions
There are two grounds of appeal relating to Mr Lockett’s conviction. The first is that the District Court Judge failed adequately to put the defence case to the jury and misdirected the jury. At one point during his closing address Mr Comeskey submitted that the scratches on the Mercedes had been caused by Mr Radisich himself. This statement prompted the Judge in his summing up to make the comment that Mr Comeskey did not put it to Mr Radisich while cross-examining him that he had caused the scratches himself. Mr Comeskey submits on appeal that he had in fact put this possibility to Mr Radisich and that the Judge’s misdirection gave rise to a miscarriage of justice. He refers to two questions he put to Mr Radisich at trial:
Q.I put it to you Mr Radisich that you have simply made up the allegations of scratching attributing it to the accused because of the difficulties that you, Janine Clarke and the accused were having together over your relationship?
…
Q.I also put it to you that the words on the car had been there prior to this day, it was just convenient for you to tell the police that he’d done it?
Ms Markham for the Crown submits that the Judge in his summing up did refer to Mr Radisich’s suggestion that the scratches had been caused by Ms Clark or a person referred to simply as “Levi”. Ms Markham submits that the questions Mr Comeskey put to Mr Radisich when cross-examining him simply could not be interpreted as suggesting that Mr Radisich himself had caused the scratches.
The second ground of appeal relates to Crown’s failure to disclose to Mr Comeskey before the commencement of the trial the fact that Constable Corby would say in evidence that she had seen blue paint on the nails protruding from the piece of wood with which Mr Lockett was said to have scratched the Mercedes. The blue paint specks had not been mentioned in her notebook (or indeed in the other officer’s notebook). Constable Corby had also been unavailable at depositions and so had not given evidence there. No other witness had mentioned the paint specks at depositions.
Mr Comeskey states in his submissions that he objected to Constable Corby’s evidence during the trial, but that the notes of evidence did not reflect this. He submitted that the failure to disclose was prejudicial because it denied him the opportunity to have the piece of wood, which was produced at the trial as an exhibit, forensically examined.
Ms Markham submits that the oversight on the part of the prosecution did not prejudice the defence case. First, she points out that it does not appear that Mr Comeskey applied for an adjournment or stay of the trial but rather chose to exploit the oversight in his closing address to bolster his submission that his client had been fitted up. Secondly, she argues that Mr Lockett was clearly aware before the commencement of the trial of the issue concerning the presence of flecks of paint on the nails because in October 2000—approximately 15 months before the trial began—he had sought a court order requiring the police to submit the piece of wood to Environmental Science and Research Limited for forensic examination.
Alleged misdirection
The two questions which are set out above and which Mr Comeskey claims show that it was put to Mr Radisich that he caused the scratches himself simply are not open to such an interpretation. They refer only to Mr Radisich lying about Mr Lockett causing the scratches and the scratches having been present before 21 July.
The Judge was correct in pointing out to the jury that Mr Comeskey had failed to put the allegation to Mr Radisich. Furthermore, we accept Ms Markham’s submission that the Judge referred in his summing up to Mr Comeskey’s argument in his closing address that the scratches could have been caused by Ms Clark or Levi. He did not refer specifically to the allegation that the scratches could have been present before 21 July and that Mr Radisich was trying to frame Mr Lockett, but there is no obligation to refer to every part of the defence case in summing up. It should also be noted in any event that the allegation that Mr Radisich caused the scratches himself did not feature at all prominently in Mr Comeskey’s closing, a transcript of which forms part of the case on appeal.
Disclosure
It was obviously an unfortunate oversight that the constable’s brief was not disclosed prior to trial. We do not consider, however, that its late disclosure caused a miscarriage of justice, especially given the strength of the other evidence against Mr Lockett.
Mr Comeskey appears to claim in his submissions that the defence was prejudiced because he did not know before receiving Constable Corby’s brief or before hearing her evidence that the prosecution would claim that there were flecks of blue paint on the nails. His argument appears to be not simply that he did not know that Ms Corby would give this evidence but that he did not know that such evidence would be given at all. This submission is difficult to accept in the light of Ms Markham’s point about the application for an ESR forensic examination and the fact that the specks of paint were mentioned, without objection by Mr Comeskey, by Mr Radisich in his evidence before Constable Corby gave her evidence.
We also note, as Ms Markham has pointed out, that no adjournment was sought and that the oversight was used by Mr Comeskey in his closing address in the manner indicated by Ms Markham. In the circumstances there is no miscarriage of justice. Mr Lockett has not been able to show no prejudice to him (apart from the prejudicial nature of the evidence in itself).
Appeal against sentence
Mr Lockett’s notice of appeal stated that he wished to appeal against his conviction as well as his sentence, but the grounds of appeal set out in the notice of appeal and the submissions filed by Mr Comeskey on Mr Lockett’s behalf related only to the appeal against conviction. We have nevertheless reviewed the Judge’s sentencing notes that there were no errors in the Judge’s approach to sentencing and that the sentence was within the range available to the Judge.
Result
The appeals against conviction and sentence are dismissed.
The periodic detention will resume and Mr Lockett is ordered to report to the Work Centre at Boston Road, Mt Eden between 4.00 pm and 6.00 pm on Friday 8 November 2002 or otherwise as the Warden directs.
Solicitors:
Crown Law Office, Wellington
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