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The Queen v O'Brien

The Queen v O'Brien

Case [2000] NZCA 122 11 July 2000

Appeal

Admissibility of Evidence

Contempt of Court

Expert Evidence

Miscarriage of Justice

Criminal Law

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NO PUBLICATION UNTIL AFTER VERDICT AT RETRIAL
IN THE COURT OF APPEAL OF NEW ZEALAND	CA9/00

THE QUEEN

GRAEME PATRICK O'BRIEN

Hearing:	29 May 2000 (at Auckland)
Coram:	Tipping J Williams J Goddard J
Appearances:	J R Billington QC and M Hardy-Jones for Appellant J C Pike for Crown
Judgment:	11 July 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

Graeme Patrick O'Brien appeals against his convictions for aggravated robbery and receiving, and against the sentences totalling 8 years imprisonment which resulted. The primary conviction issue concerns a witness whom the trial Judge declared hostile. There are related issues to which we will come later. The appellant contends that the Crown should not have called the witness; that the Judge should not have declared him hostile; and that the Crown's cross-examination of him was inappropriate. To put these contentions into context, it is necessary to examine the background against which they arise.

Background circumstances

On 5 September 1998 a security guard was robbed at premises in Blenheim. The robbers were Mark Alexander and John Flavell. They pleaded guilty to aggravated robbery and other offences, and were sentenced ultimately (earlier sentences having been reduced on appeal) to 5 years and 4 years imprisonment respectively. Both made statements to the police implicating the appellant and another man called Turner in the robbery. The appellant's part was said to include the provision of bolt cutters, balaclavas and shotgun shells, together with the use of his house to help store and count the stolen money, some $96,000.
Both Mr Alexander and Mr Flavell gave evidence at depositions implicating the appellant along the lines of their earlier statements. At trial Mr Flavell gave evidence first, and came up to brief. Mr Alexander gave evidence immediately after Mr Flavell, but he did not come up to brief. After some introductory evidence he denied having any discussions with anyone other than Mr Flavell about the proposed robbery. He denied asking anyone else to take part. Clearly he was now giving evidence contrary to what he had said at depositions.
The Crown applied to have him declared hostile. The Judge saw counsel in Chambers and, in a ruling of which there is no record, gave leave to the Crown to cross-examine Mr Alexander. The cross-examination which then ensued covers 14 pages of the transcript. It was extended and detailed and consisted substantially, at least in its initial stages, of Crown counsel simply asking Mr Alexander whether he had made various statements in his deposition evidence. Mr Alexander accepted that he had made those statements, but added right at the outset of this detailed questioning, that when he gave evidence at depositions he was not telling the truth. After about 10 minutes of this line of questioning, the Judge again saw counsel in Chambers, seemingly because he was concerned at the line of cross-examination being undertaken by the Crown. No record exists of what was said in Chambers or of any ruling or direction which the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v O'Brien

Details

AGLC: The Queen v O'Brien [2000] NZCA 122
Case: [2000] NZCA 122
Decision Date: 11 July 2000

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Graeme Patrick O'Brien against his convictions for aggravated robbery and receiving stolen property, and the sentences totaling eight years of imprisonment that resulted from these convictions. The central issue in the appeal was the handling of a hostile witness by the Crown during the trial, with additional concerns regarding the admissibility of certain evidence. The Court of Appeal, comprising Tipping J, Williams J, and Goddard J, delivered its judgment on July 11, 2000, concluding that the appellant's appeal should be allowed, the convictions quashed, and a new trial ordered.

The primary issue revolved around the Crown's decision to call Mark Alexander, an accomplice and co-offender, as a witness. The Court examined the principles guiding the Crown's decision to call potentially hostile witnesses, emphasizing that special caution should be exercised when dealing with accomplices. The Court found that while it was open to the Crown to call Alexander, it was unwise and arguably improper to do so given Alexander's evident reluctance and concerns for his safety, which made it unlikely he would provide favourable evidence. Despite this, the Court did not find the Crown's decision to call Alexander to be unequivocally wrong, given the equivocal nature of his stance and the lack of clear-cut legal principles.

The Court also addressed procedural irregularities in the trial judge's handling of the hostile witness issue, noting the absence of a proper record and reasons for the judge's decision to declare Alexander hostile. While the Court acknowledged that overturning such a decision typically requires compelling reasons, it highlighted the importance of clear reasoning to avoid unnecessary vulnerabilities in such rulings.

Moreover, the Court scrutinized the manner of the Crown's cross-examination of Alexander, emphasizing that the cross-examination must be strictly directed towards the previous inconsistent statements and only to the extent necessary to achieve justice. The Court found that the Crown's detailed and repetitive questioning of Alexander on his deposition evidence, without adequately establishing its relevance, constituted a miscarriage of justice due to the significant risk of prejudicial impact on the appellant.

Additionally, the Court condemned the Crown's introduction of evidence regarding the reasons for Alexander and another co-offender's guilty pleas, which was deemed inappropriate and prejudicial. This evidence, according to the Court, not only lacked probative value but also risked misleading the jury into giving undue weight to the co-offender's deposition evidence.

In conclusion, the Court of Appeal found that the procedural errors and improper handling of the hostile witness, coupled with the inadmissible evidence, constituted a miscarriage of justice. Consequently, the appellant's convictions were quashed, and a new trial was ordered. The sentence appeal was not deemed necessary in light of these findings.

Orders