The Queen v Peacock

[2006] NZCA 240

IN THE COURT OF APPEAL OF NEW ZEALAND

CA451/05

THE QUEEN

v

TIMOTHY BRUCE PEACOCK

Hearing:23 August 2006

Court:Robertson, Wild and Harrison JJ

Counsel:D A Ewen for Appellant

M D Downs for Crown

Judgment:4 September 2006 at 11am

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The appellant was tried before Judge Mackintosh and a jury on an indictment containing three counts: assault using a knife as a weapon; demanding money with menaces, wounding with intent to injure.  All offences were against the same man, Mr David Forrest.

[2]       Mr Peacock was sentenced to an effective term of four and a half years’ imprisonment with a minimum period of imprisonment of two years and three months.  He appeals against conviction and sentence.

Basic facts

[3]       There was a party on the morning of New Year’s Day 2005 attended by the appellant, Mr Forrest, his girlfriend and Pruitt Duran Mackey.

[4]       Bad blood developed between Mr Peacock and Mr Forrest.  The appellant smashed two beer bottles, drew attention to his Nomad gang tattoo and said he was not afraid of anyone.  He then punched Mr Forrest once in the head and chased him with a steak knife (the assault).   Mr Forrest tried to leave.  He was stopped by both Mr Peacock and Mr Mackey.  Money was demanded (the demanding). Mr Forrest moved outside and sustained severe facial lacerations consistent with being “bottled” (the wounding with intent).

[5]       Mr Mackey was also charged with demanding with menaces with intent to steal but was discharged under s 347 of the Crimes Act 1961.

Issues in the case

[6]        There are three:

(a)Did the cross-examination and re-examination of Mr Mackey require that the jury be directed that he could still be charged in relation to the wounding with intent to injure, even though he had been discharged on the demanding with menaces with intent charge?

(b)Did the lack of sampling and DNA testing of blood from the scene, particularly from the broken bottles and from Mr Mackey’s clothing, deny Mr Peacock a fair trial in that it might have exonerated him as the aggressor?

(c)Did Mr Mackey’s discharge on the menaces charge constitute a bar to Mr Peacock being convicted of that offence?

A direction about Mr Mackey’s position following his discharge

[7]       The count of demanding with menaces against Mr Mackey was dismissed on the basis that both he and Mr Peacock were treated as principal offenders and there was not sufficient evidence of an essential element, namely the intention to steal by Mr Mackey.

[8]       Mr Mackey was then the only witness called for the defence in Mr Peacock’s trial. 

[9]       Mr Mackey gave evidence that it was he and not Mr Peacock who was involved in the bottling as a result of which Mr Forrest sustained the severe facial lacerations which were at the core of the wounding charge.

[10]     Mr Mackey was subject to a sustained and spirited cross-examination in the course of which, the prosecutor asked:

I put it to you because you’ve been discharged, you’re taking the hit for [Mr Peacock].  You’ve got a chequered criminal history don’t you.

[11]     Mr Ewen argued these rolled up propositions would have given the jury the impression that the discharge on the demanding with menaces charge had rendered Mr Mackey immune to prosecution on the wounding charge.  He said the Judge had a duty immediately to warn the jury that this was not the case and he had not done so.

[12]     Mr Ewen, who was not counsel at trial, accepted that this point was not taken at the time, nor referred to in counsel’s address to the jury, and the Judge was not asked to direct on the point when she made no mention of it in her summing up.

[13]     We are not persuaded there is any basis for concluding that the jury would have assumed that Mr Mackey was immune from prosecution for wounding. He had never been charged with that offence.  There is nothing which suggests that the jury would have considered that a discharge on one charge could have impacted upon criminal liability for another charge.

[14]     In fact, during evidence in chief, Mr Mackey told the jury that he had obtained legal advice in relation to the possible consequences of giving evidence.  The matter was referred to again in re-examination where he was asked and replied:

QAnd you have been advised that this charge could in fact be followed up in respect of you, were you aware of that?

AYeah.

[15]     The jury’s verdict demonstrated that Mr Mackey was not considered a credible witness, but there is no basis for concluding that was because of the prosecutor’s comment.  Mr Mackey admitted he had told lies to the police and that he had a previous conviction for perverting the course of justice.  These would appear to be rather more compelling reasons for the jury’s rejection of his evidence.

Failure to carry out all possible scientific tests

[16]     There was no evidence that the police had secured the clothing worn by Mr Mackey and tested any blood on it or sampled and tested any blood on the broken bottles left at the scene.  No analysis was made available to the defence.  Counsel asserted this meant that Mr Peacock could not present a defence that would have been available if Mr Forrest’s DNA had been found on Mr Mackey’s clothing as well as on Mr Peacock’s.  This was predicated on the basis that an appellant is reliant on the police securing such information.

[17]     Mr Ewen’s argument was rooted in two decisions of this Court: R v B [1995] 2 NZLR 172 and R v Harmer CA324/02 26 June 2003.

[18]     In the course of argument, Mr Ewen conceded that the factual circumstances in R v B were so removed from those of this case that the principle could have little application.  The issue in it was whether the complainant in a rape case could be required to undergo a medical examination at the behest of the defence.  This Court emphasised the importance of ensuring a fair trial and the possibility that a stay, an order excluding evidence or even a discharge could require consideration.  It is important to note the Court also said at 177:

Such a position would only rarely be reached.  Nothing said today should lead counsel for the accused to apply for such remedies in cases in this field except on strong and exceptional grounds.  There must be a compelling need for the evidence;  the Court must be satisfied that justice could not be done without it.

[19]     There are no strong or exceptional grounds in the present case.  In Harmer, the Court, in determining whether a miscarriage of justice had occurred because of the unavailability of evidence, held two factors must be considered:

(a)whether the evidence has been lost because of acts or omissions by the police involving bad faith; and,

(b)whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case.

[20]     Blanchard J said at [91]:

The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt.  That is after all the fundamental question.  The characterisation of the conduct of the police in this regard will not be determinative save that, if it appears that they were motivated by a desire to avoid having the evidence before the court or otherwise acted in bad faith, it may readily be inferred that the evidence would have been helpful to the defence.  But, in the absence of such deliberate conduct or other bad faith by the police – which is the position in this case – the concern should be with the effect on the defence of the absence of the evidentiary material rather than with whether the police have been negligent.  The particular significance of the missing evidence to the defence will necessarily have to be considered in light of all the available evidence.

[21]     It is speculation whether Mr Peacock would have gained any assistance from the analysis of tests of any blood on Mr Mackey’s clothing and the bottles.  The position taken by Mr Ewen tended to minimise or ignore the onus of proof on the Crown.  When no complaint is made before or at the time of trial that the non-production of material would be of assistance, the defence cannot, on an appeal, float theoretical constructs and argue that they could have had some material bearing on the case.

[22]     The jury was directed to reach a verdict on the basis of the evidence which was presented.  They were satisfied on that.  We have not been shown that any other material (which was not averted to or requested at the time) would have altered the result.

Party liability

[23]     Mr Mackey and Mr Peacock were charged as joint principal parties on the demanding with menace charge.  The elements of this charge are:

(a)       a demand

(b)which is accompanied by menaces

(c)with an intent to steal.

[24]     The relevant evidence was given by Mr Forrest when he said:

Q        So where were Mr Peacock and Mr Mackey standing?

ARight in front of me.  Tim was in front of me and Pruitt was on the left.

QOn the left of you?

AYep

QSo in front of you is towards the main street?

AYes towards the main street.

QAnd how far away from you were they standing?

APretty much in my face.

QAnd can you remember what was said?

ANo I can’t remember anything that was said except for they did demand some money.

QCan you remember how much?

ANo they didn’t give numbers but Pruitt just asked me if I had any money and I told him no

QPruitt did?

AYes

QAnd what was their demeanour, their attitude to you when they stopped you?

ATim was pretty aggressive, Pruitt I couldn’t really say what his was like.  I wasn’t too concerned with him.

[25]     Although the plural is used throughout, it was accepted by counsel that the Judge had accepted by the time the issue went to the jury that the words of demand had been spoken by Mr Mackey.  We can see no basis upon which, in the circumstances of this evidence, the utterance was not the joint activity of the two of them.  The first element of the offence was established in respect of both Mr Mackey and Mr Peacock.

[26]     However, the Judge found there was no evidence of menaces or an intention to steal by Mr Mackey.  It necessarily follows that she should have granted a s 347 discharge for Mr Mackey.  But that in no way interfered with the Crown case against Mr Peacock on this count.  We do not accept that, because the words of demand were spoken by Mr Mackey, they were not adopted and relied upon by Mr Peacock.

[27]     Counsel wanted to lead us into an analysis of the doctrine of innocent agency, but it is not an issue in this case.  Where two or more people are involved in any activity, one can speak for and on behalf of the others as occurred here.  Making the demand was not a criminal offence, but if it was accompanied by menaces and an intent to steal as the jury were able to consider with regard to Mr Peacock, it was a criminal offence. 

[28]     We find no substance in this challenge.

Sentence appeal

[29]     There was an appeal against the effective sentence.  Mr Ewen realistically accepted that if Mr Peacock was not successful on the third ground of his appeal against conviction he could not argue that the sentence imposed was not within the available sentencing range.

[30]     The challenge to the conviction for menacing having been unsuccessful, it necessarily follows that the appeal against sentence cannot succeed.

Conclusion

[31]     The appeals against conviction and sentence are accordingly dismissed.

Solicitors:
Crown Law Office, Wellington