The Queen v McGregor

[2007] NZCA 365

IN THE COURT OF APPEAL OF NEW ZEALAND

CA209/07
[2007] NZCA 365

THE QUEEN

v

GRAHAM FREDERICK MCGREGOR

Hearing:25 July 2007

Court:Chambers, Keane and MacKenzie JJ

Counsel:D N Bunce for Appellant

K Raftery for Crown

Judgment:27 August 2007 at 11 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The sentence of five and a half years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1]       Following trial in the District Court at Christchurch, Graham McGregor was found guilty of robbing the Lincoln Road Health Pharmacy of drugs and money on 7 July 2006. He was sentenced to imprisonment for five and a half years.  He appeals his conviction on two bases and his sentence as manifestly excessive. 

[2]       The sole issue of significance at Mr McGregor’s trial was whether at the time of the offence he was elsewhere. This issue was not one the Crown had reason in the fullest sense to anticipate. Although Mr McGregor denied the offence and put the Crown to proof, the Crown relied on an admission he was said to have made on the day of the offence that he had been to the pharmacy that morning.

[3]       The first notice the Crown had of Mr McGregor’s defence was when his counsel made an opening statement. Mr McGregor had not given a notice of alibi under s 367A of the Crimes Act 1961. That shaped the trial.  After Mr McGregor himself gave evidence the Crown called evidence in rebuttal. On this appeal, Mr McGregor contends, the trial judge, Judge Noble, made two errors that together denied him a fair trial.

[4]       First, Mr McGregor contends, the judge wrongly allowed counsel for the Crown, indeed assisted counsel, to question him as to when he had first told his own counsel of his claim of alibi – a communication protected from disclosure by legal professional privilege. Secondly, the judge misdirected the jury as to a related issue – Mr McGregor’s denial that he had on the day of the offence admitted to having been at or near the pharmacy at the time of the offence.

[5]       As to the sentence imposed, Mr McGregor contends, the judge sentenced him as if he had committed the offence for which he went to trial, an aggravated robbery, involving a firearm concealed but not used. The offence for which he was for sentence, however, as a result of the Crown having been given leave during the trial to amend the indictment, was a robbery in which no firearm figured.  That called for a significantly lesser sentence.

Identity in issue

[6]       The owner of the pharmacy said in evidence that at 8 am on 7 July 2006, just as he opened the pharmacy, a person wearing a hooded sweatshirt with the hood up, his face covered by a scarf, entered and demanded money and drugs. He said that he had a gun. He had in his hand a bag that he pointed at the owner.

[7]       The owner took him at his word and gave him $40 cash and an assortment of drugs from the drug safe in the dispensary. The person went out through the back door, got into a car and left.  The owner immediately contacted the police. The most that he could do was describe what the robber was wearing. He was not able to identify the robber.

[8]       An eyewitness noted the registration number of the car in which the robber left.  That car belonged to Mr McGregor.  In the early afternoon the police apprehended him driving away from his partner’s flat. He was searched at the roadside and found to have some of the drugs. Others were found at his partner’s flat. He told Detective Henderson, the officer who then spoke to him, that he had not committed the robbery. He asked to be taken to the pharmacy so that the owner, whom he said he knew, could confirm that to be so. The detective refused. That much is undisputed.

[9]       The detective said also in evidence, relying on a notebook entry made ten minutes after the exchange at the roadside, that Mr McGregor admitted to having been at the pharmacy at the time of the offence. Mr McGregor first said that at 9.30 am he had gone to the Church Corner Pharmacy, Riccarton, to collect his methadone. Then, when pressed, said that at 8 am he had been outside the Salvation Army shop in Addington Mall, next to the Lincoln Road Health Pharmacy. He said that he had gone to the pharmacy to see the owner and knocked on the window. That is the account Mr McGregor denies.

[10]     The pharmacy owner agreed, when cross-examined, that when on the day of the offence he was told that Mr McGregor was thought to be the robber he was surprised. He knew Mr McGregor well. For four or five years, at the Church Corner Pharmacy, Riccarton, he had dispensed methadone to Mr McGregor. In the year before the robbery, at the Lincoln Road Health Pharmacy, he had seen Mr McGregor perhaps 20 times. Mr McGregor had sought his advice.

[11]     When Mr McGregor gave evidence he denied that he had been anywhere near the pharmacy that morning and denied ever telling Detective Henderson that he had, let alone at the time of the offence. At 6 am, he said, he left his partner’s flat and went to his cousin’s flat where he often stayed. He could not recall the address. He could only say broadly where it was and what it looked like inside. In evidence in chief he did not name his cousin. He named him when cross‑examined.

[12]     At around 7.30 am, Mr McGregor said, a couple came to the flat. The man, whom he would not name, asked to borrow his car to go to the shops. He agreed. The man’s partner remained at the flat. Mr McGregor expected the man back within a short time. The man was away for about an hour. When he returned he brought drugs, which he said he had just stolen, some of which were later found on Mr McGregor or at his partner’s flat. Mr McGregor saw from some of the labels that they had come from the Lincoln Road Health Pharmacy.

[13]     Mr McGregor accepted that he and the couple divided the drugs. The couple were not on the methadone program and did not take drugs intravenously. They wanted drugs able to be taken orally. Mr McGregor took those able to be used intravenously. He left with his share and eventually met his partner at the Church Corner Pharmacy, Riccarton. She was there, as he was, to collect their daily methadone and he had been meant to collect her. He at no point that morning, he said, went near the Lincoln Road Health Pharmacy.

[14]     Treating this as a claim of alibi, calling for notice under s 367A of the Crimes Act 1961, counsel for the Crown questioned Mr McGregor about when he first told his counsel that this was to be his defence. Mr McGregor said he could not be exact. He and his counsel had spoken about the case over the course of a year and had almost parted ways three times. He did not wish to name the offender or the offender’s partner. As a prisoner on remand he feared for his safety. When re-examined Mr McGregor confirmed that this had always been his position.

[15]     To rebut Mr McGregor’s evidence the Crown called the cousin, whose evidence was that he had not seen Mr McGregor for ten years, and that became an issue in itself.

Exchange as to alibi

[16]     Mr McGregor’s principal point on this appeal is that when the Judge allowed counsel for the Crown to question him about when he first discussed with his counsel the nature of his defence, and when the Judge himself stepped in, the Judge obliged him to abandon his absolute privilege. The Judge obliged him to disclose confidences between his counsel and himself as to the conduct of his defence.

[17]     The passage of evidence on which that ground rests is this:

Q.       Do you understand what is meant by the word “alibi”.

A.Yeah.

Q.You have given an alibi defence in this case.

A.Well I don’t have to lie about my part in it.

Q.You have given an alibi defence in this case.

A.I told you what happened.

THE COURT

Q.So what is your answer to the question?

A.Well yeah what I told him is my alibi.

CROSS-EXAMINATION CONTINUES

Q.You remember attending a preliminary hearing of this matter last year.

A.I came to Court a 100 times

Q.Depositions hearing last year.

A.Yeah.

Q.Do you remember that.

A.Yeah.

Q.At the conclusion of that hearing you were handed some papers weren’t you.

A.I don’t know, I didn’t take much notice of it. I didn’t get asked a single question during it.

THE COURT

Q.Yes but were you handed some paper.

A.I don’t remember. I sat out there for a whole year Your Honour. I was dragged in once a month.

Q.Just confine yourself.

A.Well there’s a lot more to it that needs to be said.

Q.Will you listen to what I am saying please.

A.You don’t seem to listen to what I’ve got to say.

Q.Will you listen to what I say and do not get into an argument with me.

A.It’s frustrating.

CROSS-EXAMINATION CONTINUES

Q.Have you seen that paper before.

A.It was the charge sheet.

Q.No it’s not, have you seen that paper before.

A.No, it’s just got aggravated robbery on it,  it’s what I’m charged with.

Q.That is a notice advising you of your legal obligations to notify the Crown of an alibi defence. Now when was the first time that you told your lawyer about this so-called alibi defence.

OBJECTION: MR BUNCE – Not appropriate question

LEGAL DISCUSSION

Q.When did you first tell your lawyer about this so-called alibi?

A.On and off over this whole. Year.

Q.On and off over the whole year.

A.Yeah I’ve told him bits and pieces of it, just not the whole story ‘cos I got asked if he wanted to stop being my counsel three times through arguments we’d had about it. I didn’t even know if I was going to continue with him as counsel but it was getting longer and longer and I wasn’t getting bail.

Q.When did you first tell your lawyer that you were not at the chemist and that you were somewhere else, that you were at your cousin’s flat?

A.On and off over this whole year. I’ve told him bits and pieces of my evidence over this whole year.

Q.You would accept that you haven’t given, through your lawyer, alibi notice, do you accept that.

A.I didn’t get to see him, I didn’t even get to see a lawyer for about three months.

THE COURT

Q.Do you accept that no notice was given to the Crown

A.No I don’t.

Q.You do not accept that.

A.No.

[18]     This exchange, Mr McGregor’s counsel Mr Bunce submits, was extremely damaging to the defence. The jury could only have taken from it that Mr McGregor had been neither frank nor truthful with his counsel and that there had been discord. No part of the exchange was probative. All was highly prejudicial.

[19]     Mr Bunce told us that when, as the transcript confirms, he objected to the questions of counsel for the Crown, he asserted Mr McGregor’s legal professional privilege. He told the Judge that the questions counsel was asking were prohibited by a recent decision of this Court. The decision he had in mind but could not then name was R v Leef CA 14/06 24 August 2006.

[20]     In that case, he submitted on this appeal, this Court set a limit, decisive in this case, on the duty prosecuting counsel has to put the Crown case to an accused who gives evidence, and on any collateral ability to probe the defence case. That duty, this Court held, can never require or allow prosecuting counsel to ask an accused what he or she may have said to their own counsel, or their counsel to them. Any such exchange is completely privileged.

[21]     The only basis on which counsel for the Crown could begin to put these questions, moreover, Mr Bunce submits, was that Mr McGregor had not given a notice of alibi under s 367A. Yet, he submits, Mr McGregor had no need to do so. Mr McGregor may have claimed to have been elsewhere at the time of the offence. He did not intend to call or even to name any witness of alibi.

Notice of alibi

[22]     As to that last submission we cannot agree. Section 367A(1) obliged Mr McGregor, if he wished ‘to adduce evidence in support of an alibi’, to give notice of alibi within 14 days of the date on which he was committed for trial. If he did not give that notice he could not, without the Court’s leave, call such evidence or give it himself. And s 367A(8) defines ‘evidence in support of an alibi’ to be:

evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

[23]     A simple denial, putting the Crown to proof that the accused was at the place of the offence as and when it happened, is not a claim of alibi and does not call for notice: R v Johnson [1995] 2 Cr App R 1. But where an accused proposes to give or call evidence that at the time of the offence, and immediately before and after, he or she was somewhere else, that does call for notice: R v Stephens [1997] 3 NZLR 716 (CA).

[24]     Mr McGregor went well beyond denying the offence. He said that at the time when the offence was happening at the pharmacy he was elsewhere. He was at his cousin’s flat. He went further. He said that the offender, using his car, left the flat and returned to it with the fruit of the robbery. That is plain evidence of alibi and it does not matter that Mr McGregor never intended to call those at the flat or even to name them. That decision on his part may go to the plausibility of his claim of alibi. It does not alter its nature.

[25]     Mr McGregor’s omission to give a notice of alibi did not, however, give counsel for the Crown licence to ask Mr McGregor when he and his counsel had first discussed the evidence he gave. A quite different response was called for.

[26]     The purpose of a notice of alibi is, as s 367A in its entirety makes clear, to ensure that the Crown knows before trial that the accused will say, or will call witnesses to say, that at the time of the offence he was elsewhere. It is to enable the Crown to check any proposed witness of alibi and to identify any witness able to be called pre-emptively in rebuttal.

[27]     A failure to give a notice of alibi does not preclude an accused from calling such evidence or giving it. Such evidence may still be given by leave and leave will normally be given when the Crown proves to be at no fatal disadvantage.

[28]     So when Mr Bunce in his opening statement advanced the defence of alibi, counsel for the Crown should immediately have invoked s 367A. He should have alerted the Judge in chambers to the absence of notice. In not doing that he compounded any omission on the part of Mr Bunce to see that notice was given and those two omissions, together, shaped the trial.

[29]     The Judge must only have become aware, we imagine, that no notice of alibi had been given when counsel for the Crown cross-examined Mr McGregor as to why that was. By then, however, any question of notice had become academic. Mr McGregor’s claim of alibi was already before the jury. The Crown had never objected and, furthermore, was at no disadvantage.

[30]     The night before this exchange Mr McGregor had given his cousin’s name to counsel for the Crown. The Crown intended to call the cousin in rebuttal. Normally that might call for leave: R v Lee [1976] 2 NZLR 171 (CA). Section 367A(4) suggests, however, that the Crown may call evidence in rebuttal as of right when leave is given to an accused to call alibi evidence despite a lack of prior notice. In any event, there was no such issue here.

[31]     Mr Bunce, by his objection, raised the real issue. It was whether counsel for the Crown could rely on Mr McGregor’s omission to give a notice of alibi in order to invite the jury to conclude that he was fabricating.

Privileged communication

[32]     The Judge did not give any ruling on the objection taken by Mr Bunce. But, as appears from the transcript of evidence and from his summing up, the Judge was obviously satisfied that Mr McGregor’s claim of privilege was unsustainable. In that we consider he was incorrect.

[33]     The general principle is clear. It applies in all species of case criminal and civil. It was stated in R v Derby Magistrates’ Court, ex parte B [1995] 4 All ER 526 (HL). It applies in New Zealand: B v Auckland District Law Society [2004] 1 NZLR 326 (PC). Lord Taylor expressed it in the earlier case, after a review of the authorities, in these terms (at 540 – 41):

The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

[34]     This privilege, as Lord Taylor continued to say, can be varied or abrogated by statute. As he recognised also, an accused may waive the privilege. But absent the one or the other the privilege holds and is to be scrupulously respected, especially, as this Court’s decision in Leef illustrates, in such a case as this.

[35]     In Leef the issue was in essence that arising here. Defence counsel had not put the defence to Crown witnesses. Whether that was attributable to counsel or a want of instructions from the accused became an issue. At [53] this Court held that the accused might have been asked whether his version in evidence was one he had ever told anybody about before. He should not have been asked when he first told his counsel. That offended his privilege.

[36]     In this case also, we consider, the same conclusion holds and that, in allowing the Crown to pursue this line of inquiry, the Judge made an error with some tangible effect. But we do not consider that any miscarriage of justice resulted.

[37]     First, counsel for the Crown did not intrude on Mr McGregor’s privilege too seriously.  He confined himself to when Mr McGregor had first discussed his proposed evidence with Mr Bunce. He did not ask what they had discussed. Had he, moreover, been more abstract, had he asked Mr McGregor when he first discussed his proposed evidence with anyone, that not could begin to be criticised.

[38]     Secondly, while it is true that in answer to those questions Mr McGregor gave the answers that Mr Bunce has described as so damaging to the defence case, Mr McGregor was combative throughout. To single out his response at this point as especially damaging seems to us to overstate its significance.

[39]     Thirdly, Mr McGregor’s claim of alibi, which he went no further than to assert, ceased to be credible immediately his cousin gave evidence in rebuttal that was completely inconsistent.

[40]     Finally, the Judge neutralised any possible prejudice to Mr McGregor, when he told the jury that Mr McGregor had not, on the evidence, ever come under a duty to give a notice of alibi; and that they were not to draw any inference adverse to him. In this the Judge may have been incorrect. But if he was Mr McGregor still took the benefit and as the Judge also pointed out the Crown had not been put to any disadvantage. The cousin had been called.

[41]     The true question, the Judge rightly instructed the jury, was what they made of Mr McGregor’s claim of alibi. To assess that they had to set his evidence against that of his cousin. If they found Mr McGregor’s asserted alibi discredited, the Judge told them, they were to put his evidence to one side. It added nothing to the Crown case.

[42]     In these instructions to the jury the Judge, we consider, brought a neutral focus to all the issues associated with alibi before the jury.

Denial direction

[43]     We see Mr McGregor’s second and related point of appeal in much the same way. It has some definite basis. It does not have such weight as to suggest a miscarriage of justice. It arises in this way.

[44]     In evidence Mr McGregor denied, it will be recalled, that he admitted on the day of the robbery to Detective Henderson that he had been to the pharmacy that morning, indeed at the time of the offence. The Judge told the jury that they need give little weight to that denial if they concluded that Mr Bunce had not put the denial to the officer. He himself could not immediately remember. This is what the Judge said:

Particularly in the context of this case you might think – and it is a matter for you, however – and it is entirely a matter for you to decide what you make of it. In the course of that interview the accused admitted that he was at the pharmacy at about 8 o’clock on that morning. In evidence today he denies saying that at all. It is his evidence, as I understand it, that the officer must have been at the very least mistaken in claiming that that is what the accused said. I do not think that the officer in specific terms in cross examination was asked about that by Mr Bunce and if that is your recollection of the matter then in those circumstances I direct you that it would be appropriate for you to give very little weight to the accused’s claim that he did not say that to the officer.

[45]     This direction, we accept, as Mr Bunce submits, was in one sense unnecessary and in another incorrect. It was unnecessary because the Judge had no need to rely on his memory and neither did the jury. Both had the transcript of evidence. It was incorrect, as the Crown accepts, because the transcript disclosed that Mr Bunce had put the denial to the officer.

[46]     We are unable to agree that the effect could only have been to prejudice Mr McGregor’s defence; to cause the jury to discount his evidence altogether.

[47]     The direction was couched tentatively. The Judge was frank that he could not recall whether Mr Bunce had put the denial to the detective or not. He left that to the jury to confirm one way or the other. If, then, they thought it unimportant they could have put it to one side. If they thought it important they could have satisfied themselves from the transcript that the Judge was wrong. Either way Mr McGregor was unprejudiced.

[48]     Also, there was evidence, apart from the admission Mr McGregor denied, entitling the jury to conclude that he did commit the offence. His car was at the scene. He was found in possession of some of the stolen drugs. Clothing not inconsistent with that of the offender was found at his flat. The cousin denied that they had been together that morning. There was nothing else in the evidence that would have given the jury any reason for pause.

Sentence appeal

[49]     In sentencing Mr McGregor to five and a half years imprisonment, the Judge took a starting point of four years. To that he added 18 months for ‘aggravating features of the offending.’ The aggregate became the sentence he imposed because, as he said, there were no factors that were mitigating.

[50]     Mr Bunce contends that the four year starting point the judge took from R v Mako [2000] 2 NZLR 170 at [56], applies only to an aggravated robbery in which a weapon figures. It cannot apply to a robbery in which no weapon figured. A lesser starting point was called for, perhaps three years: Smeed v Police HC WHA AP 50/00 24 October 2000.

[51]     In this Mr Bunce faces an immediate difficulty. The four year starting point the Judge took, instead of the five year starting point invited by the Crown, was one he himself had invited. That apart, we think it was right. Mr McGregor’s robbery may not have been aggravated by a weapon. On the Mako analysis, it was aggravated in another way. Mr McGregor was after drugs and he got them. Had he been carrying a weapon, that would have resulted in a starting point of at least five years. So four years without a weapon appears about right.

[52]      We see two difficulties with the 18 month uplift, however, which lead us to conclude that the sentence as a whole was manifestly excessive.

[53]     The first difficulty is that the Judge seemingly made the uplift, not as R v Taueki [2005] 3 NZLR 372 (CA) requires, for aggravating factors personal to the offender, but rather, as he said, for ‘aggravating features of the offending.’ Yet those features were already taken into account in the Mako and Smeed starting points. If,  then, that is what he meant to say, he seems to have taken those factors into account twice. The scale of the uplift appears otherwise inexplicable.

[54]     The second difficulty is that, if the Judge meant instead, despite what he said, to found the uplift on Mr McGregor’s history of previous offending, which was unquestionably aggravating, the uplift was too great.

[55]     The Judge rightly described Mr McGregor as a recidivist drug-addicted offender, in denial, with little instinct to change and at high risk of re-offending. Mr McGregor’s offending, however, this offence apart, had begun to tail off. He had last been sentenced to imprisonment, and for a short term, in November 2003. That was almost three years before the date of the offence for sentence. His most pertinent convictions, those for aggravated robbery in 1987 and 1995, were well in the past. We consider an uplift of six months at most to be justified.

Result

[56]     Mr McGregor’s appeal against his conviction is dismissed. His appeal against his sentence of five and a half years imprisonment is allowed. That sentence is quashed and he is sentenced instead to four and a half years imprisonment.

Solicitors:
Crown Law Office, Wellington