The Queen v Matthews

[2007] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/06
[2007] NZCA 155

THE QUEEN

v

ROBERT GEOFFREY MATTHEWS

Hearing:27 March 2007

Court:Chambers, Chisholm and Gendall JJ

Counsel:J W Watson for Appellant

K B F Hastie for Crown

Judgment:26 April 2007     at 10 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       The appellant was convicted following a jury trial at the District Court at Whangarei on counts of threatening to kill, arson and unlawful possession of an explosive, being two shotgun cartridges.  Judge de Ridder, the trial Judge, subsequently sentenced him to a term of imprisonment for three and a half years.  He appeals against his convictions on each of the three counts. 

[2]       The grounds advanced in support of the appeal are that the trial Judge erred in his summing-up in respect of the directions on the counts of threatening to kill and arson.  Further, it was submitted that the evidence failed to establish that the shotgun cartridges were in fact live ammunition, i.e. explosives. 

[3]       The appellant seeks leave to admit further evidence on appeal.  That evidence is in the form of a prior statement made by a Crown witness to an insurance investigator, which, it is said, was relevant and material to issues at trial.  It was argued that the evidence was not obtainable at time of trial, is sufficiently credible, and that if it had been before the jury the appellant might have been acquitted.

Background

[4]       The Crown’s case was that the appellant had been rejected by his former partner, Ms P.  He was unhappy about the ending of the relationship and began to harass her to the extent that she served him with a trespass notice.  Ms P then formed a relationship with a Mr H.  The Crown’s case was that this further angered the appellant, who went to Ms P’s home on two occasions in October 2004, challenging or confronting her about her new relationship. 

[5]       Evidence from the complainant was that he threatened her by saying words to the effect:

[H]ave a good life because it won’t be for long.

And further:

I was lucky that I wasn’t home last night because he’d been up all night, he was planning how he was going to come to my house and beat me to death with an iron bar.

[6]       Ms P’s evidence was that the appellant in fact carried an iron bar in his utility vehicle and that she believed the threats that he had made to her.  Her evidence was that the appellant on a second occasion threatened her by saying “[H]ave a good life because it wouldn’t be for long.” She further alleged that he said Mr H should be told “to watch his back”. 

[7]       Those threats were passed on to the police and a trespass notice was served upon the appellant.  He subsequently placed it on the windscreen of Ms P’s car which was locked in a construction yard, within which Mr H lived in a converted container.  There was evidence that later the appellant threatened Ms P that he would burn Mr H’s container, a statement made in the presence of Ms P’s daughter.  The evidence was that the appellant said that he knew where Mr H’s bedroom was and:

[H]e’d looked in and seen the bed and said it would be easy as to throw petrol in and a zippo lighter in after, and he threatened to burn [Mr H’s] house down.

[8]       Further, the evidence was that the appellant said:

…he was going to do it, he could burn it [the container]. 

[9]       There was also evidence of the appellant stating to Ms P that it would be easy to put oil on the road so that Mr H would fall from his motorbike.

[10]     A protection order was obtained against the appellant.  Later it was noticed that there appeared to be oil on the road near Mr H’s property and locks on the gate had been altered.  A note was found attached to a chain of the locked gate, said to have been written by the appellant, which contained words to the effect:

It’s not over yet.  I’ll be back.

[11]     Late in November 2004 a security guard, Mr Girvin, noticed burnt tarseal leading away from the watchhouse of the shipping yard and burnt grass where a fire had been started.  Mr Girvin believed the appellant to be responsible given that the appellant had also said to him, words to the effect:

[I]t’s not over yet.

There was evidence from Mr Girvin of the smell of oil being unique and other evidence of a noticed oil trail, which was confirmed by ESR to be diesel.

[12]     On 6 December 2004 when Mr H was away from Whangarei, a fire gutted the container and his living quarters.  A motorcycle was inside the container.  It had been acquired on hire purchase in the name of Mr Girvin, but for the benefit of Mr H who was making the payments by instalment.  The motorcycle had not been registered in his name because of an existing licence restriction. 

[13]     Expert evidence given at the trial was to the effect that the fire that destroyed the contents of the container had been deliberately lit, being started with the use of an accelerant.  Petrol was detected in a sample taken from squabs in the container.  Subsequently, bolt cutters were found in the appellant’s vehicle and the Crown contended that these were used to cut the wire mesh on the padlocked gates so as to give entry to the property on the night of the fire.

[14]     Two shotgun cartridges were found two days after the arson near the gate to the enclosure.  Those rounds of ammunition appeared to be live and it was generally assumed that they would be capable of being fired.  There was no evidence that the cartridges had been dismantled and nothing to suggest that they were incapable of being fired.  The ESR scientist was cross-examined by defence counsel as to whether the cartridges were capable of being fired and his evidence was that that could not be determined other than by pulling them apart, but they appeared to be standard 12 gauge cartridges and were intact.

[15]     The issue at the trial, on the counts of arson and possession of explosives, was the identity of the offender.  The appellant was interviewed by the police on 11 December 2004.  He denied making threats to Ms P or Mr H.  He did admit making a comment to her to the effect that, “if you are so keen on burns, then I’ll give you a burn you’ll never forget”.  But he said that was made in the context of supplying drugs and had nothing to do with arson.  He agreed he had put the trespass notice on the complainant’s car when the construction yard was open, but contended that he was elsewhere on the night in November when Mr Girvin saw spilt oil and burnt grass. .  The appellant denied setting fire to the property of Mr H and he denied that the shotgun cartridges were his.  His explanation for the presence of diesel in his vehicle related to its unusual fuel tank system.

[16]     The appellant gave evidence at trial.  He contended that Mr H and Mr Girvin had been conspirators in the arson of Mr H’s living quarters so as to obtain insurance for the motor vehicle stored inside it, and that he was the victim of a “set up” by both of them.  That explanation had not been put to Ms P or Mr H or Mr Girvin when they gave evidence.

Counsel’s contentions in support of the appeal

[17]     In respect of the count of threatening to kill, Mr Watson argued that the conviction should be quashed for two separate reasons.  First, that the verdict was unreasonable and not able to be supported having regard to the evidence (s 385(1)(a) of the Crimes Act 1961) because the words used were not capable of constituting a threat and that count should not have been left to the jury.  Secondly, Mr Watson argued that the Judge misdirected the jury when saying the threat had to be “deliberately made.” This direction was, counsel contended, insufficient because it was not qualified by the jury also being advised that the threat must have been “consciously and voluntarily made”.  This misdirection was alleged to have been an error of law within the meaning of s 385(1)(b).

[18]     In respect of the count of arson, counsel submitted the Judge erred in his direction to the jury as to the requirement of “intentionally” damaging by fire.  He contended further that the Judge had erred in the manner in which he directed the jury on the requirement that there be an intent to cause loss to any person.

[19]     In respect of the count of possession of explosives, Mr Watson submitted that the Judge erred by not directing the jury that the Crown had failed to prove there was explosive material inside the intact but unfired shotgun cartridges. 

[20]     Counsel applied for leave to present fresh evidence in the form of a written statement which Mr Girvin made to an insurance investigator subsequent to the arson.  Counsel submitted that that statement was inconsistent in some material respects with evidence given at trial and that, if available and used in cross-examination, it may have led the jury to doubt the credibility of Mr Girvin.  It was argued that consequently the jury would have been unable to exclude the possibility that it was Mr Girvin and another who were responsible for the arson.  Accordingly counsel submitted that, had this evidence been before the jury, it might reasonably have led to them returning a different verdict.

Discussion

Threatening to kill count

[21]     The Crown evidence was that there were a number of threats made over the period between 1 and 30 October 2004.  We note there is only one count charged and it may have been preferable for the Crown to itemise or identify the threat made on each individual occasion, but that did not become an issue at trial.  Rather, the Crown’s case was that there was an ongoing pattern of behaviour over that month, which comprised developing threats to kill the complainant, Ms P.

[22]     At the trial the defence was that the words or threats were never made by the appellant.  There is no doubt that the words Ms P said were directed at her (set out above at [5] and [6]) were capable of amounting to a threat to kill.  If the jury found them to have been made, as it obviously did, it was then reasonably open for the jury to infer that the appellant had made the comments intending to influence the mind of the complainant, that is to frighten her.  The count was properly left to the jury.

[23]     In respect of the second aspect argued by counsel, namely misdirection, we reject this argument.  The jury were told that the Crown had to prove the threat was “deliberately made and was made with the intention of influencing” the complainant, intending that she would take it seriously.  What the Judge said was accurate and sufficient.

[24]     Both grounds of appeal in respect of count one fail.

Arson count

[25]     This was the third count which was framed in the alternative to count two.  The jury, having found the accused not guilty of intentionally damaging by fire knowing that danger to life was likely to ensue (count 2), was required to consider whether there had been intentional damage by fire with intent to cause loss to any other person.  The Judge directed the jury they had to be satisfied the Crown had proved three things, namely:

…That on or about the 6^th day of December that the accused damaged the container by fire.  He did that intentionally and thirdly, he did it intentionally with intent to cause loss to another person.  In this case, obviously Mr [H] was the owner of the container.

[26]     This direction was clear on all three elements.  Counsel submitted that the Judge was required to direct the jury that the appellant either meant to cause the harm or foresaw his actions were likely to cause that result.  The Judge in fact gave just such a direction when he said that the Crown had to prove that on the relevant date:

the accused damaged the shipping container by fire, and he did that intentionally, and that there is just simply the common sense meaning of that word, he meant to do it, and finally, the third element is that he knew that danger to life was likely to ensue.  That should simply be given its common sense interpretation as requiring danger to the life of someone other than the accused.

If you have to go on and consider Count 3, that is if you find the accused not guilty of Count 2, then again there are three things you have to be satisfied the Crown has proved.  That on or about the 6^th day of December that the accused damaged the container by fire.  He did that intentionally and thirdly, he did it intentionally with the intent to cause loss to another person.

[27]     Such a direction was sufficient.  The case was not really about questions of intent but whether it had been proved that the perpetrator of the arson was the appellant.

[28]     This ground of appeal also fails.

Possession of explosives count

[29]     We called for, and have considered, the transcript of counsel’s closing addresses to the jury.  It is quite clear that counsel for the appellant at no time presented such an argument or submission at trial.  It was not an aspect of the defence that the Judge was required to leave to the jury.  The defence advanced at trial to the explosives count was one of denial and alibi: that the appellant never had possession of the shotgun cartridges and was not present in the area at the time they were left beside the gate. 

[30]     If Mr Watson’s argument is correct, it would mean that whenever a charge of possession of explosives (in the form of unfired ammunition) is brought, the Crown are required to prove, through the dismantling of the ammunition, that explosive material was contained within it.    This is incorrect.   In the absence of any other evidence or any suggestion to the contrary from the defence, it is entirely open to a jury to draw the inference that unfired ammunition contains explosives. The Arms Act 1983 defines “explosive” as including “ammunition of all descriptions”: see s 2.  Where the evidence, as in this case, is that the ammunition was unfired, a jury is entitled to find, once it has concluded that the defendant was in fact in possession of the ammunition, that he or she was in possession of “explosives” for the purposes of the Arms Act. 

[31]     Furthermore, the Judge correctly directed the jury on this point:

[T]he law says the definition of an explosive in the Arms Act defines ammunition of all descriptions as an explosive.

[32]     The argument now advanced is purely opportunistic and fails for the reason given above.

Application to introduce fresh evidence

[33]     The fresh evidence Mr Watson sought to have admitted was contained in an affidavit of a private investigator who annexed a statement made by Mr Girvin to an insurance investigator.  Counsel said that that statement was “fresh evidence” which should have been a matter for the jury’s consideration and could not have been obtained at that time because the signed statement was unavailable.

[34]     The thrust of the “new evidence”, as contained in the insurance statement of Mr Girvin, is that he acquired a motorcycle in his name on behalf of Mr H who paid the deposit and hire purchase repayments. The vehicle was acquired in that manner because Mr H did not have a motorcycle licence.  In the statement Mr Girvin says that he was the only driver of the bike on the road and it was insured on the day of purchase;  there was one key to the bike which was with Mr H who was storing it;  and the motorcycle was normally kept there because it was in a secure yard and a locked container.  The statement further says that Mr Girvin placed the bike in the container on the morning of Saturday 6 December as he had done before on a few occasions, it having been ridden through double doors on the tool shed end of the container.  This was blocked off by a wooden wall from the living area.  The double doors were then locked by a padlock.  The statement says that Mr H was away from the city in the previous week and returned after he learnt of the fire.

[35]     It was said in the evidence at trial and generally accepted that the motorcycle was purchased in Mr Girvin’s name because of restrictions involving Mr H.  Mr Girvin was cross-examined as to matters of payment of the deposit of $5,000 and four payments of $283 per month and said that he did not have a key to the container and did not have the use of the bike over the relevant time.  Mr Girvin agreed, in cross-examination, that, when the insurance investigator asked him who the main drivers of the bike were, he had said he was. When he was asked whether he had told the insurance investigator that he had placed the bike in the container on the morning of 6 December, Mr Girvin answered that he could not remember saying that.  When asked whether he had a key to the bike, he said “No”. He also denied to the investigator that he had a key to Mr H’s container. 

[36]     Mr Watson argued that the inconsistency in the statement, when viewed against the evidence of Mr Girvin at trial, would reflect adversely on the credibility of both Mr Girvin and Mr H (although we cannot see how that to be the case in respect of Mr H).  Counsel also said that it supported the inference that they may have been responsible for the arson for insurance purposes.  Mr Watson advanced the theory that, if the statement contained inconsistent evidence and had been before the jury, the jury may have concluded, or at least been left with a reasonable doubt as to the possibility, that Mr Girvin and Mr H had themselves been responsible for the arson of the premises.

[37]     On an application to introduce further evidence, the focus is on the importance of the omitted evidence, if such had been given along with the other evidence adduced at trial.  If significant evidence ought to have been before a jury but was not, for whatever reason, a miscarriage of justice may have occurred.  The position is as set out by Tipping J in R v Bain [2004] 1 NZLR 638 at [22] (CA):

The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation.  If that were not so, new trials could routinely be obtained on the basis that further evidence was now available.  On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been.  The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[38]     In this case the statement of the insurance investigator is not fresh.  It was obtainable at the time of trial so as to enable cross-examination of Mr Girvin to be undertaken.  Indeed, Mr Watson accepted before us that he had all the details contained in it in precis form.  The statement itself, if needed, could have been obtained through the issue of a summons to the person to whom the statement was made or of a subpoena requiring its production.

[39]     The signed statement that Mr Watson says ought to be admitted as evidence contains nothing significant that was not earlier available to him and the appellant. 

[40]     The issue is then whether, if the statement had been available in its written form, Mr Watson would have been able to use its contents in a more effective or direct way than otherwise occurred.  The statement itself could only ever have been “potential evidence” if:  it was provided to Mr Girvin in cross-examination; he agreed that he made it; and he agreed that where its contents were inconsistent with what he had said orally in his evidence-in-chief the statement was, nevertheless, correct and to be treated as his evidence.  The only other way the statement could have been admitted in its entirety would have been by the person to whom it was made, and only then in circumstances where Mr Girvin had sworn that he had not made any prior inconsistent statement.  And of course he did not so contend.

[41]     If there were prior inconsistent statements they would have gone to the credibility of the witness, but the question remains: credibility as to what?  It was not put to Mr Girvin or to Mr H that either of them had engaged in insurance fraud.  Indeed, Mr Watson in his address to the jury disavowed such a suggestion, saying it would be “quite wrong of me to say …here is the suspicion, they burnt down the container for insurance purposes”.  Mr Girvin’s credibility related to peripheral matters such as seeing the appellant’s utility vehicle on some occasions in the vicinity of the enclosed yard, noticing that on an earlier occasion scorched earth and diesel fuel were present, and matters relating to threats or comments he heard the appellant say.

[42]     There is no possible risk of a miscarriage of justice arising from the fact that counsel did not have at the time the written statement itself.  He had the substance of its contents and he cross-examined on those.  The statement itself could have been obtained with reasonable diligence.  The evidence is not admitted because it is not fresh and the signed statement now presented contains nothing significant that was not earlier available.

Result

[43]     All the arguments made on behalf of the appellant fail and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington