The Queen v Keepa

[2007] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

CA14/07
[2007] NZCA 295

THE QUEEN

v

MATTHEW ROY KEEPA

Hearing:24 May 2007

Court:William Young  P, Baragwanath and Heath JJ

Counsel:M I Sewell for Appellant

J A Farish and Z R Johnston for Crown

Judgment:18 July 2007 at 2 pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

[1]       Mr Keepa, jointly with a co-accused Mr Ellis, was tried before Judge P A Moran and a jury in the District Court at Christchurch.  He faced two counts, aggravated robbery and injuring with intent to injure.  Both Mr Keepa and Mr Ellis were found guilty on the injuring with intent to injure charge and not guilty on the charge of aggravated robbery.  Mr Keepa was sentenced to three years’ imprisonment. 

[2]       Mr Keepa appeals against both conviction and sentence.

The conviction appeal

Background events

[3]       The trial took place over two days, 14 and 15 December 2006.  Before the trial began an agreed statement of facts was prepared by counsel for the Crown and Mr Keepa.  The statement contained admissions by the accused made pursuant to s 369 of the Crimes Act 1961. 

[4]       Mr Keepa’s admissions related to the injuries suffered by the complainant, Mr Stevenson, and forensic DNA evidence.  The latter linked blood found on Mr Keepa’s shoes with blood found at the crime scene. 

[5]       While counsel for the Crown at trial, Mr McRae, opened on the agreed statement of facts, he closed the Crown case without formally putting the admitted facts before the jury. 

[6]       Counsel for both accused sought an order discharging the accused, under s 347 of the Act, at the close of the Crown case.  Their applications were dismissed.  Shortly after determination of those applications, counsel for each accused made elections on behalf of their respective clients not to give or to call evidence.  At that point, the Court adjourned for closing addresses to be made the following morning.

[7]       Overnight, Mr McRae, realised that he had not submitted the s 369 statement for jury consideration.  In the morning, having discussed the issue with Ms Sewell, for Mr Keepa, he asked that all counsel see the trial Judge in chambers to discuss that omission.  Ms Sewell objected to admission of further evidence in support of the Crown case.  Before counsel went into chambers, Mr McRae agreed with Ms Sewell that a brief of evidence from Dr Cropp (a forensic science consultant) could be admitted in evidence if the Judge allowed the Crown to read the s 369 statement into evidence.

[8]       Mr McRae has sworn an affidavit as to what occurred during discussions that took place in chambers with Judge Moran following his indication that the Crown wished to put the agreed facts before the jury.

[9]       Mr McRae deposes that Judge Moran ruled that the Crown could read the statement of admitted facts to the jury.  Mr McRae records that Ms Sewell asked the Judge for Dr Cropp’s statement to be admitted into evidence.  The Judge declined that application, notwithstanding the absence of Crown opposition.  Mr McRae says that Ms Sewell asked that the issue be “reserved” but Judge Moran declined to do so.  Mr McRae says that, when asked why, the Judge said that the statement had been signed prior to trial, had been referred to in opening and that the Crown was entitled to read it in closing; however, he was not prepared to permit Ms Sewell to re-open the case for Mr Keepa.

[10]     The Court reconvened in the presence of the accused and the jury.  The statement of admitted facts was read to the jury.  The Crown case was again closed at 9.10am with no further right of election being offered to either accused.

[11]     After reserving judgment on the appeal, we issued a Minute to obtain a report from the trial Judge.  We took that course to enable the Judge to comment on the events described in Mr McRae’s affidavit.  A report dated 15 June 2007 has been received.  It was circulated to counsel who appeared on appeal.  No further submissions were received from counsel for the Crown.  Ms Sewell filed a memorandum indicating that the discussion in chambers got no further than Ms Sewell indicating that Dr Cropp’s brief of evidence could be introduced by consent.  She says the Judge declined to admit that brief “point blank and would not allow argument or further discussion”.  We deal with this point in [15] below.

[12]     Judge Moran confirms that when counsel saw him in chambers on the morning of the second day of the trial, Ms Sewell objected to the agreed statement of facts being read and put before the jury.  The Judge recalls that Ms Sewell would only consent to that course if a brief of evidence from Dr Cropp was also read to the jury and produced in evidence.  The Judge has confirmed his ruling that the agreed statement could be read and formally tendered during the course of his closing address and his ruling that the brief of evidence of Dr Cropp was not admitted.  Judge Moran proffers two reasons for taking that course.

[13]     First, the statement of facts had been referred to by Mr McRae in opening.  In that sense, it was already part of the Crown case.  The Judge did not regard the Crown as seeking to re-open its case.  The Judge took the view that all counsel had proceeded on an underlying assumption that there was no issue either as to the injuries suffered by the complainant or that the complainant’s blood was on Mr Keepa’s footwear and on the complainant’s jacket, which had been found in Mr Keepa’s possession.  On that basis Judge Moran considered that there was no justification for excluding the memorandum and Mr McRae’s oversight could be cured in the manner proposed.

[14]     Second, Mr Keepa had elected not to call evidence.  The Judge was not persuaded that “a completely unheralded” brief of expert evidence should be introduced, notwithstanding Crown consent to that course of action.

[15]     Judge Moran took the view that Ms Sewell had not actually applied to re-open her case, in the sense that she wished to reverse her client’s election not to call evidence.  Rather, the Judge’s  impression was that she was prepared to consent to the agreed facts going before the jury in return for Dr Cropp’s brief being read into evidence.  In [11] above, we referred to Ms Sewell’s memorandum in response to Judge Moran’s report.  To the extent there is conflict between Judge Moran’s report and counsel’s recollection, we regard it as immaterial.  Our perception is that the Judge considered Ms Sewell’s attempt to have Dr Cropp’s brief admitted was opportunistic and what occurred in chambers must be seen in that context.

[16]     The Judge does not recall whether he was asked to “reserve the issue” of admitting Dr Cropp’s brief of evidence.  But, if it were suggested that a question of law for the Court of Appeal was to be reserved, the Judge considered that unnecessary because Mr Keepa retained the right to appeal against conviction.

[17]     The trial Judge advises that his personal records indicate the hearing in chambers commenced at 8.55am and that Mr McRae began his closing address at 9.08am.  The Judge was anxious not to keep jurors waiting because they had been asked to make an early start.  The Judge did not consider that a reasoned ruling was required.

Competing submissions

[18]     Ms Sewell, for Mr Keepa, submitted that the trial Judge erred in declining her the opportunity to put Dr Cropp’s statement to the jury once he had ruled that the agreed statement of facts could be read and tendered by the Crown. 

[19]     In oral submissions, Ms Sewell contended that the issue at trial was whether Mr Keepa was involved in an initial phase of the altercation between Mr Ellis and the complainant but was not involved in the violence which was the subject of the charges which occurred in an alleyway.  She submitted that Dr Cropp’s witness statement may have assisted in demonstrating that the Crown had not established that the complainant’s blood was transferred to Mr Keepa’s footwear during the violence that occurred in the alleyway.

[20]     Ms Farish, for the Crown, submitted that the ruling was one open to the Judge but that, in any event, no miscarriage of justice could be said to have resulted.  She submitted that the brief of Dr Cropp was not probative in any material sense.

The facts

[21]     The Crown case was that the complainant had been severely beaten as a result of violence inflicted by both accused in an alleyway off Manchester Street in Christchurch in the early hours of 15 January 2006.  The complainant was intoxicated at the time.  The photographic evidence shows an alleyway going down to a locked metal gate.  Blood spatter is depicted near the gate in the alleyway.

[22]     The Crown called two witnesses to give identification evidence.  However, they refused to answer some questions put to them in the course of the trial.  Indeed, the refusal of one witness to co-operate saw her remanded in custody for a short period.  When recalled she said that she saw Mr Keepa punch the complainant at the head of the alleyway but did not see him, during a later phase of the violence, either hit or kick the victim.

[23]     The victim’s jacket was found in the possession of Mr Keepa.  The complainant’s blood was subsequently identified as having been transferred to Mr Keepa’s clothes and shoes.  The Crown case was that Mr Keepa and Mr Ellis were joint offenders; at the very least they assisted each other in the commission of the offence.

The brief of Dr Cropp

[24]     Dr Cropp’s brief of evidence must, necessarily, be read in the context of facts admitted by Mr Keepa for the purposes of trial.  Mr Keepa admitted that samples of blood taken from the sole of his left shoe and the lace of his right shoe were consistent with blood having originated from the complainant.  A small area of bloodstain was also detected on the front of the right sleeve of a brown jacket in Mr Keepa’s possession.  That blood was also consistent with having originated from the complainant.

[25]     The proposed evidence of Dr Cropp went solely to the allegation that Mr Keepa kicked the complainant.  After referring to ESR analysis, Dr Cropp said:

None of the bloodstains on these shoes can be specifically associated with the use of the shoes to kick the complainant.

A number of the bloodstains were tiny spots that had been spattered onto the shoes.  If it is assumed that a person who is standing normally was wearing the shoes; then these small bloodspots had a low trajectory when they were deposited onto the shoes.

The highest spot is on a narrow grey strip close below the second to top eyelet on the right side of the right shoe, about 80 millimetres from the bottom of the shoe.

A single tiny bloodstain is present on the lower edge on the left side of the right heel about 4 millimetres above the base.  This spot is on the upper surface of a groove around the bottom of the heel.

There were two areas on the right shoe where small bloodstains were only on the stitching around the top of the front right side of the toe plate.  The mechanism to explain how these stains were deposited onto the shoe is inconclusive.

The left shoe had two areas indicated on the rear edge of the heel.  Neither of the bloodspots associated with the blue marking were readily visible when I examined the shoes.

There was a single tiny blood spot on the front of the left shoe.  This was in a groove containing threats, and had been deposited on the lower edge of the groove immediately below the thread.

If the person wearing these shoes was standing close to another person dripping blood it is quite likely that some of the satellite spatter from the blood falling onto the rough ground has splashed onto the shoes.

[26]     We are not persuaded that Dr Cropp’s evidence was likely to assist the defence.  The points made by Dr Cropp, particularly the observation in the last paragraph of his brief, tended to support the Crown case by placing Mr Keepa at or near the place at which the victim’s blood was spattered.  The issue for the jury was whether, either as a principal offender or as a party, Mr Keepa was involved in the attack on the complainant.  The possibility that the bloodstains were not “specifically associated” with Mr Keepa kicking the complainant could not have provided an evidential foundation for the proposition that Mr Keepa was not involved in the assault.  Likewise, Dr Cropp’s opinion that a person standing close to another dripping blood might have some “satellite spatter from the blood” fall onto his shoes is self-evident. 

[27]     We conclude that the Judge was right to refuse to admit Dr Cropp’s brief of evidence, but on the basis that it had no probative value for the defence.  No miscarriage of justice can have arisen from the failure of the Judge to admit that statement.

Some concluding comments

[28]     On many occasions, this Court has emphasised the desirability of hearings on procedural points taking place in Court for chambers in the presence of the accused.  When a digital recording system is operating, the submissions and comments of the Judge can be recorded together with any reasons for a ruling.  If no digital recording system were available, at least brief reasons should be given and recorded to explain the ruling should an appeal eventuate.

[29]     We understand the pressures under which the District Court Judge was acting and his obvious irritation at what he regarded as an opportunistic approach by Ms Sewell.  We have already commented, at [15], on what we perceive as the Judge’s impression of the attempt to admit Dr Cropp’s evidence by consent.  Nevertheless, it would not have taken much longer to record briefly the very points that the trial Judge was able to convey to us in his report.  The existence of short reasons to that effect would have avoided the necessity to seek a report.

[30]     These observations are added to reinforce the need for a more formal approach to issues of this nature that arise in the course of jury trials.

Sentence appeal

[31]     Ms Sewell advanced the sentence appeal on the basis that there was an unjust disparity between the sentences imposed on Mr Keepa and his co-offender.  The primary complaint is that the Judge was wrong not to distinguish between the culpability of the two offenders and to give credit to Mr Ellis for the fact that he would have pleaded guilty to the charge on which he was ultimately convicted. 

[32]     The Crown had offered to withdraw the charge of aggravated burglary if both accused pleaded guilty to injuring with intent to injure.  Mr Ellis indicated he would do so, but Mr Keepa refused.  Ms Sewell submits that it was unfair that Mr Keepa be treated differently on sentence because he proceeded to trial.

[33]     Ms Farish submitted that it was open to the Judge on the evidence to treat the two offenders as having equal responsibility for the offending.  She submitted that it was not wrong in principle for the Judge to allow a greater credit to Mr Ellis, having regard to his indication that he would plead guilty to the lesser charge at an earlier time. 

[34]     Both accused were sentenced on 21 December 2006.  Mr Keepa was sentenced to a term of imprisonment of three years while Mr Ellis was sentenced to two years six months imprisonment.  The discrepancy arises solely from the additional credit of six months in favour of Mr Ellis in respect of the indication that he would have pleaded guilty to the lesser charge.

[35]     In his sentencing remarks, Judge Moran accepted that both accused dragged the complainant down the alleyway “obviously intent on giving him a hiding”.  The Judge accepted that both were involved in the violence that ensued.  He found as a fact that the violence included punches and kicks to both the upper body and the head.  The most significant injury caused to the complainant was his broken jaw. 

[36]     Judge Moran continued:

[5]  It is necessary to analyse the involvement of each of you in this, so that it is clear, the basis on which you are being sentenced.  Both of you were retaliating for violence offered by [the complainant].  Both of you dragged him down the alleyway with the intention of beating him up and so both of you are equally to blame, equally culpable for the beating that followed, and the injury that was suffered, including concussion and a broken jaw.

[6]  I find Mr Keepa that you took this bloke’s clothing and shoes off him after he had been beaten but that was an after-thought, it was not the purpose of his receiving the hiding.  I find Mr Ellis that you were the one who gave them away ... after these events.  I mention the taking of the clothing because it was a significant fact that we heard evidence about.

[37]     In our view, the factual findings made by the Judge were open to him on the evidence.  On those findings, there is no basis upon which the starting point of three years imprisonment can be challenged. 

[38]     Mr Keepa was, in fact, fortunate that the Judge did not add an uplift for his prior offending.  Ultimately, the Judge (in our view, benevolently) decided that remorse and contrition balanced out any uplift that might have been given for aggravating factors relevant to the offender.

[39]     There was no disparity in the starting point taken, when assessed by reference to aggravating factors relevant to the offence.  That is the true comparator.  Other aggravating factors relevant to the offender (like mitigating factors) are personal in nature.  Different end results will emerge, depending upon what weight is given to those personal factors.

[40]     It is not our task, on Mr Keepa’s appeal, to consider whether the additional credit given in favour of Mr Ellis for his indication of an early plea was justified.  Our task is to consider whether there was any unjust disparity.  In our view, there was not.  Once the Judge concluded that Mr Keepa and Mr Ellis were equally culpable for the offending it was inevitable that the same starting point for sentence would be taken.

Result

[41]     The appeals against conviction and sentence are each dismissed.

Solicitors:
Crown Law Office, Wellington