The Queen v Jeffrey Peter Stringfield

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 432/99

THE QUEEN

JEFFREY PETER STRINGFIELD

Hearing:	28 February 2000 (at Auckland)
Coram:	Blanchard J Robertson J Williams J
Appearances:	P O’Driscoll and J B Wickliffe for Appellant K F B Hastie for Crown
Judgment:	29 February 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

On 27 January 1999 there was an aggravated robbery at the ANZ Bank at Papakura. Tamatoa Mataa pleaded guilty in respect of it and was subsequently sentenced to 10 years imprisonment.
On the basis that he also was actively and knowingly involved, the appellant Jeffrey Peter Stringfield was charged with the same offence. Following a hearing in August 1999 in the District Court at Auckland he was convicted and subsequently sentenced to 7 years imprisonment.
He now appeals against that conviction on the grounds :
(a) That trial counsel acted contrary to express and definite instructions to call his co accused Tamatoa Mataa; and
(b) Counsel did not conduct the case in a way that adequately put the appellant’s defence to the jury.
Mr Stringfield filed an affidavit as did trial counsel. They were each cross-examined before us. There was available to the Court an affidavit from Mr Mataa as to the evidence he could have given. When irrelevancies and peripheral matters were peeled away there was not serious divergence between them. We found Mr Stringfield’s evidence unpersuasive Where there was conflict we prefer the evidence of trial counsel.
There has never been any question that the get-away car which was employed by Mr Mataa was registered in the name of the appellant’s de facto partner.
The appellant who gave evidence at the trial claimed at the time of the robbery he was at Pickaberries Garden Centre with his 4 year old son. He admitted that he had known Mr Mataa for 20 years and had been an associate for the last 6 months. He said that he had met Mr Mataa in Manurewa and that he had taken him to Pickaberries to get some plants. Mr Mataa had asked to borrow the car for an hour or so. He said it was while Mr Mataa had the car that the aggravated robbery of which he knew nothing took place. Mr Mataa returned the car to the appellant and he indicated he wished to stay at Pickaberries where someone else would pick him up.
Minutes after the robbery the police found Mr Stringfield driving his de facto’s car with his son as a passenger.
When the appellant was spoken to by Police Constable Sutherland, he claimed he had just come off the motorway from Manurewa at Papakura and had stopped briefly at the reserve by the takeaway. To Police Constable Wood he claimed he had just come from the beach with his son.
To Detective Constable Matich with whom he spoke about 20 minutes later, he claimed that he had left home approximately three quarters of an hour beforehand with his son and had driven to the beach at Hingaia. He claimed that his vehicle could not have been used in the robbery and it must have been someone else’s because since he had left home with his son no-one else had been in the vehicle with him.
At trial he admitted eventually that these various explanations were fudging but claimed that he was afraid of Mr Mataa and did not want to be branded as a “nark” nor to have the police swarming all over the garden centre.
The applicable law was considered by this Court in R v Miers (CA 15/92, 1 December 1992) which elaborated on the approach discussed in R v Pointon [1985] 1 NZLR 109.
It is clear that at trial major tactical decisions had to be taken by the present appellant about the conduct of the hearing including issues about giving or calling evidence.
Considering that the Crown case against Mr Stringfield was circumstantial and that the identification evidence was relatively weak there was material which could be exploited before the jury. We could not conclude that there was a fundamental failure of counsel’s obligation in deciding to wait finally until trial to determine whether the appellant should give evidence.
As far as the conflict between Mr Stringfield and his former counsel is concerned, although it is regrettable that written instructions on the salient points were not obtained, we are satisfied that together a clear decision was taken that it would be inopportune to file a notice of alibi. To have given a notice and then not called evidence would have been to attract potentially damaging criticism from the Crown.
We accept that counsel was told by Mr Stringfield that no-one would recall him being at Pickaberries and that there was not a witness available who could give such evidence.
As far as the decision not to call the co-accused Mr Mataa is concerned, former counsel’s evidence is that that decision was made after discussion. Trial counsel had been to the prison and had briefed Mr Mataa. He was of the view that the evidence would be unhelpful. Counsel had to make an assessment of the effect that Mr Mataa might have on a jury and particularly the substantial risk that if he were called to give evidence his joint participation in a similar armed robbery with the appellant in 1993 would become known to the jury.
This Court in its decision on an appeal on a preliminary point (CA 226/99, 1 July 1999) ruled against the admissibility of evidence about the previous incident but had left it open that the issue could be reviewed in the course of trial having regard to circumstances which might emerge. We could not say that there was a fundamental error on the part of counsel to advise Mr Stringfield not to call Mr Mataa when the likelihood of that evidence of the earlier offending being admitted was weighed. We accept that Mr Stringfield accepted his counsel’s advice and decided that Mr Mataa should not be called.
We are satisfied that the decision for the appellant himself to give evidence was Mr Stringfield’s decision and was taken contrary to his counsel’s advice. There is now no factual divergence on what happened.
In our view that is indicative of the relationship between this man and his counsel. He was given advice with regard to various critical and important decisions which had to be taken. He made his own decisions. Counsel accepted and worked within the confines of the instructions which were given.
Much has been made of the fact that no alibi notice had been served and it was submitted that therefore the defence was precluded from calling such evidence. We are of the view that this submission is pitched far too high. A trial Judge always has the ability to permit evidence to be given notwithstanding that there has been no notice of alibi. There is nothing in this case which suggests that had it been necessary in the interests of justice for the evidence to be given that it would not have been received. We rather suspect that had there been an indication of a defence wish to call Mr Mataa notwithstanding the absence of an alibi notice, it would not have been opposed. The Crown would have welcomed the opportunity to be able to cross-examine this witness.
In light of the conflicting explanations about his movements which were given at the time, the inherent unlikelihood of the evidence which he gave (and which the co-accused Mr Mataa indicates he could have supported), we are satisfied that a jury would have rejected his evidence as they did the appellant’s if they had heard the endeavours by Mr Mataa to explain away a number of coincidences in the case.
This case again demonstrates the importance of counsel obtaining written instructions from clients with regard to all aspects of the conduct of the trial particularly the questions of whether an accused person is to give or call evidence. That is always the accused’s own decision. (R v McLoughlin [1985] 1 NZLR 106). Before making these decisions an accused is entitled to have advice as to the wisdom or prudence of the alternative course of action and the various consequences which might flow from them.
In this case there is no dispute that advice was given but the instructions to the contrary were carried out. It would have lessened the possibility of subsequent recriminations if the advice and instructions on the various points which are now complained of had been committed to writing.
We can see no possibility of an injustice having arisen as a result of the advice given or the instructions which followed upon the giving of that advice. This is not a McLoughlin situation. No instructions were disregarded. There is no evidence of radical error in the conduct of the defence even after the change of position by the appellant.
There is no basis for the present complaint that there was inadequate preparation or time spent by counsel with the accused person. The Judge’s summing up fairly placed all that could be said by the defence before the jury.
There were always difficulties for Mr Stringfield because of the available evidence and his past association with the co-accused. It was undoubtedly an available line to exploit the clear difference in appearance between the appellant and the identification witness and the unlikelihood of a person committing an aggravated robbery in the company of a 4 year old child. This theory and approach did not lend itself to the appellant giving evidence. Counsel’s approach was a proper way of dealing with the case. The position of Mr Stringfield was probably worsened by his determination to give evidence but his instructions were in that regard complied with. We are satisfied that the possible disadvantage of doing so was the subject of advice by his counsel.
The appeal against conviction is dismissed.

SOLICITORS

Crown Law Office, Wellington

[2000] NZCA 30

29 February 2000