The Queen v Martin

[2008] NZCA 488

IN THE COURT OF APPEAL OF NEW ZEALAND

CA270/2008
[2008] NZCA 488

THE QUEEN

v

NEVILLE JOSEPH MARTIN

Hearing:13 November 2008

Court:Glazebrook, Wild and Simon France JJ

Counsel:Appellant in Person

A J F Perkins for the Crown

Judgment:19 November 2008 at 10.00 am

JUDGMENT OF THE COURT

THE APPEAL, WHICH IS AGAINST CONVICTION, IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]       Mr Martin appeals his convictions on charges of aggravated robbery, kidnapping and injuring with intent to injure.  He was found guilty by a jury at trial in the Auckland High Court in February this year.

[2]       In a minute he issued on 6 August, O’Regan J granted Mr Martin an extension of time for filing his notice on appeal.  It had been filed some two weeks out of time.

[3]       Mr Martin argued his appeal himself.  The appeal essentially challenges the jury’s verdict at Mr Martin’s trial as an unreasonable one, in that it was not supported by the evidence the jury heard.  There were three main thrusts to Mr Martin’s submissions.  First, he challenged the credibility of the complainant, Mr Mangal, contending that the jury ought not to have believed Mr Mangal.  Second, and reinforcing this, Mr Martin asserted that the Crown did not call any evidence independently confirming Mr Mangal’s account of events.  Thirdly, and consequently, Mr Martin submitted that the jury ought to have believed Mr Martin’s evidence and that of the two witnesses he called.  All those defence witnesses said that Mr Martin was no longer present when the events that resulted in the charges took place.

Factual background

[4]       The Crown case concerned events that occurred on the morning of 13 November 2006.  That morning Mr Mangal arrived at the appellant’s house in Papakura to pick up Mr Jayde Martin.  Mr Jayde Martin did casual work on various properties Mr Mangal owned.  The appellant was at home when Mr Mangal arrived.  This much is common ground. 

[5]       The Crown case was that the appellant told Mr Mangal that Mr Jayde Martin was in the garage.  Mr Mangal looked in the garage but Mr Jayde Martin was not there.  The appellant then told Mr Mangal that Mr Jayde Martin had just gone into the garage, so Mr Mangal went back into the garage, followed by the appellant.  Mr Jayde Martin then came into the garage and closed the door behind him. 

[6]       Mr Jayde Martin and the appellant then accused Mr Mangal of having sex with the appellant’s daughter.  Mr Mangal was punched and kicked.  He fell onto the concrete floor of the garage where the punching and kicking continued.  At one point the appellant took a big spanner and threatened Mr Mangal with it saying “one shot with this will do it”.  Mr Jayde Martin grabbed a piece of metal bar and made a similar threat to Mr Mangal. 

[7]       The two men told Mr Mangal that he could go to prison for “that sort of thing” but said they could come to a deal.  The appellant then demanded $250,000, eventually reducing this demand to $5,000.  Mr Mangal said he could pay them $2,000 now and the rest by the end of the week.

[8]       The appellant asked Mr Mangal for his mobile phone, and then for his purse.  The appellant took $90 out of the purse and wrote down the details of Mr Mangal’s driver’s licence. 

[9]       Next, the two men forced Mr Mangal to sign several papers which the appellant got out of an envelope that was in a desk in the garage.  One of these papers recorded an agreement that Mr Mangal transfer a house property he owned to the two men.  The other papers recorded an agreement giving Mr Jayde Martin a two per cent share in Mr Mangal’s property owning business, and providing that he would be looking after the business “as a boss”.  There were three different pieces of paper.  After Mr Mangal had signed these papers, he was handed back his cellphone and required to ring his lawyer, Mr Mangal Singh.  He was told to tell Mr Singh that two people were coming in that afternoon to get the property transferred.  Mr Mangal left a message to that effect on Mr Singh’s answerphone. 

[10]     The two men then required Mr Mangal to accompany them to the ASB Bank at Papakura.  They drove there in Mr Mangal’s van.  The appellant was driving the van.  Mr Jayde Martin accompanied Mr Mangal into the bank where Mr Mangal withdrew $2,000 in cash, charging it against his Visa card.  A female teller dealt with the transaction, which was duly documented.

[11]     The three men then drove back to the appellant’s house in Mr Mangal’s van.  After handing the money to the appellant, and confirming that Mr Jayde Martin was now a shareholder and boss in Mr Mangal’s business, Mr Mangal was allowed to leave in his van. 

[12]     Mr Mangal drove to his office and recounted these events to his workers there, and then went to see his doctor who treated him for the injuries he had received as a result of being punched and kicked in the garage.

[13]     Mr Jayde Martin pleaded guilty just prior to the trial.  The appellant defended the charges.  He gave evidence that he was at home on the morning of 13 November 2006, when Mr Mangal arrived in his van to collect Mr Jayde Martin.  The appellant said he asked Mr Mangal to move his van, so that he could get his vehicle out and go to work.  After Mr Mangal had done that, the appellant said he spoke to Mr Mangal on the driveway.  The conversation included the appellant asking Mr Mangal which country he came from, and Mr Mangal questioning the appellant about a houseboat the appellant owned.  The appellant said that Mr Mangal asked him if he knew anybody who could do “an insurance job” on a house Mr Mangal owned in Otahuhu.  Mr Mangal also asked him if he was interested in doing “a stand over job”.  The appellant said that Mr Mangal explained to him that his son was in trouble with the law and he wanted the stand over job done on people who were going to give evidence. 

[14]     The appellant said that at that point his daughter, Ms Jessaray Martin returned home.  He said that she was supposed to be back on Sunday, and he was a little upset with her. 

[15]     The appellant then recounted telling Mr Jayde Martin, who was in the toilet, not to forget to leave his rent.  He said that Mr Jayde Martin was his cousin, and was living in the shed at the back of the property. 

[16]     The appellant then said that he put his boots on and went out the front door to his ute.  He said that he saw Mr Mangal heading towards the shed as he left.  The appellant said:

I hopped in my ute and left the property at approximately 10 to 10.

[17]     He said that he went to see a lady friend, Ms Sue Searle, at her house.  He said that he stayed with her all day. 

[18]     Ms Jessaray Martin gave evidence for the defence.  This was consistent with the appellant’s evidence.  She confirmed arriving home somewhere between 20 and a quarter to ten that morning, and confirmed that she saw her father leave the house in his work van shortly afterwards. 

[19]     Ms Searle also gave evidence for Mr Martin.  She said that she had texted the appellant on the morning of Monday 13 November and asked him to come and see her at her daughter’s place.  She said that the appellant arrived there “about 10 o’clock, maybe just before 10” and stayed with her at her daughter’s house until about quarter to four that day.

Appellant’s submissions in support of his appeal

[20]     The appellant submitted that the Crown had not called any independent evidence to support Mr Mangal’s “fantastic story”.  For example, he pointed out that no spanner had been produced, and that none of Mr Martin’s hairs had been found in Mr Mangal’s van (the appellant made the point to us that he had long hair).

[21]     The appellant contended that Mr Mangal had concocted all of his story, to cover up his misdeeds with Mr Jayde Martin’s daughter.  The appellant submitted that Mr Mangal was highly placed in the Indian church and community.  He told us that “Mr Mangal was going to Court next week”. 

[22]     We were reminded by the appellant that he had called two witnesses, his daughter Jessaray and Ms Searle.  He pointed to Ms Searle’s evidence that he had arrived at her daughter’s property at 10 am and spent the day there. 

[23]     The appellant asked that his conviction be quashed, and no re-trial ordered.

Decision

[24]     The appellant’s submissions to us were substantially a re-run of his defence at his trial.  Indeed, the appellant drew our attention to the following passage in the Judge’s summing up:

[54]     Mr Hogan [counsel for the appellant at his trial] again in summary says, none of these events happened.  There is only the evidence of Mr Mangal.  Without Mr Mangal’s evidence the Crown has absolutely nothing because nobody else saw Mr Martin [and] Mr Mangal go into the garage, nobody else saw him around afterwards when they allegedly went to the ASB and there is absolutely no independent evidence to support Mr Mangal’s version of events.

[25]     All the points the appellant made to us were made, and forcefully made, by his counsel in the course of the appellant’s trial.  Mr Hogan cross-examined Mr Mangal at length.  For example, the appellant’s allegations about “the insurance job” and “the standover job” were put to Mr Mangal:

Q.At that time did you have a rental or a development property in Massey Road Otahuhu?

A.Yes.

Q.Was that a property near Otahuhu College?

A.Yes.

Q.Was that property at the time causing you some concerns or headaches?

A.No.

Q.I put it to you that you asked this person Gypsy on the driveway whether or not he could arrange for that house to be burnt down that it was causing you some problems and you wanted rid of it for an insurance claim isn’t that the truth?

A.No.

Q.I suggest to you you also asked this man whether or not he could do a home invasion on a family living in Otahuhu that was connected with your son?

A.No.

Q.That your son at that time was in some difficulties with the law wasn’t he?

A.No.

Q.And there was a person to be a witness against him living in Otahuhu is that the case?

A.No.

Q.That you asked this person you came to know as Gypsy that you wanted him to be and his family to be stood over isn’t that what you put to this man on the driveway that morning?

A.No.

[26]     Mr Hogan put it to Mr Mangal that his story was concocted, and that the evidence that the appellant and his two witnesses were going to give was the truth:

Q.I suggest to you that he didn’t go into the garage at all nor did he go down to the ASB Bank he had nothing to do with you at all from the point where he leaves you on the driveway?

A.He was the person, he did everything, he was to do all those things, he took my keys, he took my phone he took my purse all the time he was with me I was with him, he took me to the bank when he left the garage he was in front I was in the middle and Jayde was at the back where he had driven my van.

[27]     In short, everything that the appellant has put to us as justifying quashing his conviction, was put to the jury which found him guilty.  It is not for this Court to re‑try the appellant.  He has not pointed to anything suggesting that he did not have a fair trial, at which his defence was put fully and forcefully to the jury by experienced trial counsel.

[28]     We add that the appellant is not correct in contending that Mr Mangal’s account was not supported by independent evidence.  It suffices to refer, briefly, to some of the other evidence the Crown called at the appellant’s trial:

·Mr Mangal Singh gave evidence.  He confirmed that he was Mr Mangal’s lawyer.  He said that he had received a telephone message from Mr Mangal that morning, in which Mr Mangal sounded frightened, and spoke with a different tone to his normal way of speaking.  He said that he spoke later that day to Mr Mangal, who still sounded frightened.

·The ASB bank teller gave uncontested evidence about the transaction at the ASB Bank in Papakura at about 10.55 am.  Although the teller was unable to identify Mr Mangal, she recalled that the customer was a dark skinned gentleman.  The Bank’s records showed the transaction was on Mr Mangal’s account.  This witness stated that the $2,000 she gave the customer “was all $100 bills”.

·Dr Bennett gave uncontested evidence that he had examined Mr Mangal at 12.30 pm on 13 November, and described the injuries he had received.  He stated that those injuries were consistent with Mr Mangal being assaulted.

·Detective Bennett gave evidence that, along with other Police Officers, he had executed a search warrant at the appellant’s home on 15 November.  He said that he located $400 in cash, consisting of four $100 notes, in the appellant’s wallet. 

Result

[29]     The appeal is dismissed.  The appellant’s convictions on all the charges stand.

Solicitors:
Crown Law Office, Wellington