The Queen v Page
[2006] NZCA 41
•22 March 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA303/05
THE QUEEN
v
FRANCEE EDWIN PAGE
Hearing:14 March 2006
Court:Chambers, Ronald Young and Allan JJ
Counsel:R A B Barnsdale for Appellant
M D Downs for Crown
Judgment:22 March 2006
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
REASONS
(Given by Ronald Young J)
[1] The appellant faced trial on charges of aggravated burglary (count 1, s 232 Crimes Act 1961), two of assault with intent to rob (counts 2 and 3, s 236 Crimes Act 1961) and unlawful possession of a firearm (count 4, s 45 Arms Act 1983). He appeals against his conviction on charges of aggravated burglary, one charge of assault with intent to rob and unlawful possession of a firearm. He abandoned his appeal against sentence.
[2] The appellant alleges that a miscarriage of justice occurred. After the trial was complete but before sentencing the appellant resiled from his trial defence that he was not present at the scene of the crime. He admitted his presence but denied that he had committed any criminal acts. Trial counsel advised the Judge prior to sentencing of his new instructions. He accepted, as he was bound to, that the Judge should proceed to sentence on the jury’s verdict. This she did. The appellant says the Judge should either have discharged the appellant pursuant to s 347 of the Crimes Act, held a disputed facts hearing under s 24 of the Sentencing Act or this Court should conclude a miscarriage of justice has occurred and direct a retrial to allow the appellant to put his “new” defence.
Background facts
[3] On 5 February 2004 in the evening the appellant, armed with a loaded sawn‑off shotgun, entered a house at 34A Bankwood Road in Hamilton. There were two adults in the house, Ms Louise Penney who had a child with her and Mr Joseph Strongman. The appellant confronted the two occupants and demanded the keys to a car parked outside the house. Mr Strongman attempted to disarm the appellant, a struggle ensued and the gun was discharged, narrowly missing Mr Strongman’s thigh. The male complainant fled and shortly afterwards the appellant.
[4] The appellant was identified as being present by three witnesses including the female complainant who knew him. The appellant has a distinctive tattoo on his forehead and detailed descriptions were given by those who identified him. The appellant did not call or give evidence himself at his trial.
Evidence given on the appeal
[5] The appellant swore and filed an affidavit in support of his appeal. He waived privilege with respect to his instructions to and discussions with his trial counsel, Kerry Burroughs. The Crown submitted an affidavit from Mr Burroughs. Prior to the hearing, it appeared that the appellant was going to run an argument based on trial counsel incompetence. As a consequence, Mr Barnsdale, the appellant’s new counsel, served a notice requiring Mr Burroughs to be present for cross-examination. The Crown retaliated with a notice requiring Mr Page to be present for cross-examination. In the end, however, there was no cross-examination, as the appellant accepted that there was no real discrepancy between his account of what his instructions had been and Mr Burroughs’s account. Indeed, the appellant accepted at the start of the hearing before us that there had been no counsel error. He accepted the account given by Mr Burroughs as to his instructions and he accepted that Mr Burroughs had at all times faithfully carried out his instructions. So the account that follows of what transpired between Mr Page and Mr Burroughs is essentially unchallenged.
[6] Mr Page accepts that he had told Mr Burroughs that he was not present at the Bankwood Road house and that he had an alibi witness. He said that witness would confirm that on the day of the offending he was in Auckland. The alibi witness proved difficult to find, although counsel instructed a private investigator. Eventually the alibi witness was spoken to by counsel. As a result of that discussion trial counsel decided that the so-called alibi witness could not called to give evidence because of his manifest unreliability.
[7] Counsel told Mr Page that in his view the proposed alibi witness would have to perjure himself to give alibi evidence. He advised Mr Page if the alibi witness was proposed to be called by the appellant then he would need to seek leave to withdraw as counsel. It was agreed that the alibi witness would therefore not be called. Trial counsel said Mr Page insisted he had not been present at the address but did not wish to give evidence at his trial. Mr Page continued to believe witnesses would not turn up at the trial.
[8] The appellant’s confidence about the witnesses’ failure to attend at Court proved mostly misplaced. The female witnesses appeared and gave evidence but the male complainant did not. Accordingly, the appellant was discharged on the count in relation to the male complainant (count 3). Trial counsel again asked Mr Page if he wanted to give evidence at the end of the Crown case. Mr Page instructed him that he did not wish to give evidence. No evidence was therefore called and closing addresses were made. The jury convicted Mr Page on the remaining counts in the indictment.
[9] On the morning of sentencing (8 August 2005) trial counsel was told by the appellant that his previous instructions that he was not present at the house that night were incorrect. Mr Page said he had been hesitant to say what had actually happened because the others involved in the incident had been Mongrel Mob members and to give evidence in such circumstances would breach the gang code of loyalty. Mr Page told Mr Burroughs he had been present at the house that night. He said that he was a friend of the female complainant’s partner. He suspected the female complainant and another person, the male complainant, were having an affair. He went to the house to confront them. When he arrived he was set upon by the male complainant and a fight broke out. The male complainant then left the house and returned with a sawn‑off shotgun. A struggle ensued between them and the shotgun was discharged. Mr Page said he then ran off.
[10] Trial counsel advised the appellant that his new instructions could not be taken into account on sentencing by the Judge. He advised the appellant that he would tell the Judge he was going to appeal the conviction on the basis of new instructions but that sentencing would take place on the basis of the verdicts reached by the jury and the evidence given in Court. Counsel, therefore, appeared at sentencing and told the sentencing Judge that Mr Page intended to appeal and he had now given new instructions which counsel had not been aware of at the time. Notwithstanding Mr Page’s intention to appeal, he accepted that the Judge would have to sentence him on the basis of the jury’s verdict and Mr Page wanted to be sentenced on that day. Mr Page was then sentenced by the Judge based on the facts as given in evidence to seven years imprisonment.
Submissions and discussion
Section 347 discharge
[11] The appellant submitted that a Judge does have power in unusual circumstances to discharge an accused pursuant to s 347 of the Crimes Act after a guilty verdict by a jury. He submitted this was a course open to the Judge in this case once she had been made aware of the appellant’s new defence. We agree such a power exists (see s 347(3)). However counsel could not identify any circumstances in this case which would justify such a discharge. In our view there are none. The fact the appellant wanted to run an alternative defence after his defence at trial had been rejected by the jury could not possibly be an exceptional circumstance justifying in effect, if the appellant’s submissions were accepted, an acquittal. We reject this ground of appeal.
Sentencing Act 2000
[12] Mr Barnsdale submitted that s 24 of the Sentencing Act could have been used to resolve who had the shotgun and who discharged it given the appellant’s new instructions.
[13] Section 24 provides as follows:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:
(e)either party may cross-examine any witness called by the other party.
(3)For the purposes of this section,—
aggravating fact means any fact that—
(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[14] This section is not intended to provide an opportunity for an accused person convicted by a jury to re-argue evidence of guilt (see subs (1)(b)). Count 1 in the indictment was framed as follows:
THE CROWN SOLICITOR AT HAMILTON CHARGES THAT:
(1)FRANCEE PAGE on or about the 6th day of February 2004 at Hamilton entered a building namely the dwellinghouse situated at 34A Bankwood Road without any authority and with intent to commit a crime therein and had with him a weapon namely a firearm.
[15] The essential aggravating feature found proved by the jury was possession of the shotgun on entry to the house.
[16] Count 2 charged as follows:
THE CROWN SOLICITOR AT HAMILTON CHARGES THAT:
. . .
(2)FRANCEE PAGE on or about the 6th day of February 2004 at Hamilton being armed with an offensive weapon namely a shotgun assaulted Louise Anne Pene with intent to rob Louise Anne Pene.
[17] Again, possession of the shotgun was an essential element of the crime and was found proved by the jury. Count 4 alleged unlawful possession of a firearm on which the appellant was found guilty.
[18] A disputed fact hearing was not, therefore, open on the question of who had possession of the shotgun and who discharged it. These facts had been established already by the jury verdicts. This ground of appeal has no merit.
Trial counsel incompetence
[19] Counsel for the appellant abandoned previously made allegations of trial counsel incompetence.
Miscarriage of justice arising from “new” defence
[20] The appellant was therefore thrown back on the proposition that a miscarriage of justice would occur if he was not now allowed to raise and run at a subsequent trial his “new” defence. Mr Barnsdale accepted that this “new” evidence was known to the appellant before trial. The appellant in his affidavit accepted he had deliberately kept this evidence from his trial counsel. He accepted that he allowed his counsel to mount a defence to the charge which he now says was false. Counsel for the appellant was unable to identify any special circumstances entitling the appellant to present a “new” defence on appeal entirely different than the defence run at trial to establish a miscarriage of justice. As Lord Taylor CJ said in R v Ahluwalia [1992] 4 All ER 889 at 899:
It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.
[21] And this Court said in R v Kingi CA122/05 10 August 2005 at [68].
If the new evidence sought to be adduced on appeal was known to an appellant or his or her counsel before trial, it is unlikely in our view ever to be in the interests of justice that it be admitted, subject of course to allegations of trial counsel incompetence or failure to follow instructions being made out. To admit evidence on appeal that was known to exist before the trial would be effectively to allow a re-run of the trial on a different basis. As said in Bain, our system of justice requires that an accused puts up his or her best case at trial. On the other hand, where the evidence was not known to the appellant or his or her counsel before trial but could, with due diligence, have been discovered, the Court may be more likely to allow its admission in the interests of justice, perhaps depending on the ease with which the evidence could have been discovered. Obviously, as noted in Bain, the stronger the evidence is from an appellant’s point of view and the more it potentially challenges the Crown case at trial, the more likely it is to be in the interests of justice that it be admitted. We remark that evidence that directly challenges the veracity of the evidence of Crown witnesses at trial may be more likely to meet these criteria than evidence that merely bolsters the defence case. We reiterate, however, that cases where evidence that is not fresh is nevertheless admitted will be rare.
[22] This case in our view was not one of those rare occasions where such evidence should be allowed. There is no suggestion in this case of trial counsel inadequacy or of any, for example, mental incapacity of the appellant which might have made it difficult for the him to appreciate what he was doing at trial.
[23] In his affidavit the appellant said:
8.After I was convicted of the offences described above, I gave my lawyer a letter in which I told him about the defence which I had wished to be put. The essence of the defence was that:
. . .
i. I did not say anything to Kerry Burroughs initially because of code of honour that exists between gang members and ex gang members that you do not give evidence against each other. However, when the female complainants gave evidence, my views changed and I changed my mind.
[24] On his own admission, therefore, after the female complainants gave evidence and before he decided whether to give evidence at trial, he did not feel bound by the “code of honour” which had prevented him from telling his counsel previously what his involvement had been that night. However, the appellant did not give his counsel new instructions at that time. He decided not to give evidence. Whatever impediment he therefore felt arising from his sense of loyalty was removed before he elected not to give evidence.
[25] We see no miscarriage of justice in applying the well established rule that where trial counsel incompetence or a failure to follow instructions is not established then in the absence of special circumstances the appellant will not be given a new trial to try out his new defence.
[26] The appeal will therefore be dismissed.
Solicitors:
Crown Law Office, Wellington
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