The Queen v Richard Benjamin Jones
[2001] NZCA 58
•30 March 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA426/00 |
THE QUEEN
V
RICHARD BENJAMIN JONES
| Hearing: | 29 March 2001 |
| Coram: | Richardson P Anderson J John Hansen J |
| Appearances | T Thompson for the Appellant P S. Dean for the Crown |
| Judgment: | 30 March 2001 |
| JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J |
Following a short trial in the Papakura District Court Richard Benjamin Jones was found guilty by a Jury of burglary. The grounds of appeal allege that conduct by counsel contrary to instructions, errors by counsel and an appearance of unfairness, cumulatively rendered the conviction unsafe and unsatisfactory, occasioning a miscarriage of justice.
Ms Thompson, for the appellant, submitted that trial counsel failed to follow instructions to call the appellant to give evidence; failed to follow instructions to call alibi and other supporting evidence; and failed to properly cross examine the witness who identified the appellant.
The well settled test is whether the conduct of the defence can be said to have led to a miscarriage of justice, or at least to “a real risk of a miscarriage of justice”: R v Quinn [1991] 3 NZLR 146. In order to reach that threshold, the appellant must demonstrate “radical” or “fundamental” mistakes or blunders, not merely decisions that could have yielded better results: R v Pointon [1985] 1 NZLR 109; R v H [1997] 1 NZLR 673; R v Coster (CA538/95, judgment 19 March 1996); Byford v R (CA74/93, judgment 25 June 1992). If it is established that trial counsel failed to follow his or her client’s instructions, the appellant must also show that the failure led to a miscarriage of justice: R v Reti (CA296/91, judgment 22 November 1991); R v S [1998] 2 NZLR 392.
We have received affidavits from Mr Jones and his mother, and three from counsel appearing in the Court below. All deponents were cross examined on their affidavits.
The trial was short. The evidence concluded at 11.35am on the day of the trial. The Crown called the owner of the house, Damyanti Patel, the daughter Nalinee Patel. Constable Grant, and an ESR scientist, Ms Coulson. The notes of evidence run to only 15 pages. After addresses the Judge summed up, and the verdict was delivered approximately 3 hours later.
At approximately 8.30pm on the 26 April 2000 a 16 year old occupant of a house in Pakuranga disturbed an offender in her bedroom. It was subsequently discovered that the window had been smashed to gain entry, and that items of jewellery and an eftpos card had been taken. The witness had a brief view of the defendant, and she described him as a 6ft male Caucasian wearing a dark T-shirt, baggy dark pants and a beanie and said he was passing things out the window. She was within 6ft of the offender. The witness’s sister, in a signed statement, said she saw the offender leave, and described him as being about 6ft tall and wearing baggy dark clothes. She described the person entering a motor vehicle, and she took the registration number. The first witness accompanied the police to the police station, where she viewed a number of photographs. She identified the appellant from these photographs and commented that she recognised him from school. About 10.30pm that night a police officer apprehended the defendant leaving a property about 300 metres from the scene of the burglary. The police officer noted the defendant was wearing black baggy jeans, a black T-shirt and a black beanie.
It is apparent that the crucial evidence against the appellant was the identification evidence of Ms Patel.
Alleged failure of Counsel to follow Instructions
Thomas J., in delivering the decision of this Court R v The Accused (1998) 16 CRNZ 611, 613, 614 said:
A counsel does not have the right to disregard instructions from his or her client. See R v McLoughlin [1985] 1 NLR 106, 107; 1 CRNZ 215,216 (CA). If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed and conveyed……It must be clear that the instructions were not simply an expression of the client’s views on a particular matter but were intended to be directions to be observed and implemented by counsel. They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage. It is not enough for example, for an accused to tell trial counsel that he or she ‘wants’ or ‘wishes’ a particular witness called. See R v Byford unreported, 25 June 1993, CA74/93, at p.3. Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice.”
This is predicated on the basis that counsel has properly consulted and advised an accused so that instructions can be taken concerning the defence to be put to the Jury.
The appellant’s complaint in this case is that he was not included in the decision making process on the conduct of the trial, and was not told until the morning of the trial he would not be called to give evidence. He maintains in his affidavit that he had been previously told he would be giving evidence. Mrs Jones supports these allegations.
The consultations took place at the Otahuhu District Court, rather than at counsel’s office. This was to facilitate the attendance of the appellant’s mother who worked.
In her affidavits counsel exhibits a number of letters to Mr Jones and his mother, and their responses. Mr Jones attended secondary school to the 7th form, and is described by his mother in Exhibit “T” of Counsel’s first affidavit in the following terms:
“Richard is actually a very intelligent person. Far too intelligent to burgle a house just up the road. He was classed as a gifted child at school.”
The correspondence, and counsel’s affidavit make it clear counsel was in regular contact with the appellant and his mother. The exhibits we have just referred to show that both the appellant and his mother were informed and included in the process as to the conduct of the trial. And, of course, on the appeal the Court had the advantage of seeing and hearing trial counsel, the appellant and his mother being cross examined on their affidavits. In the result we have not been persuaded that the appellant did not adequately appreciate the issues in his trial and how the matter would proceed, nor that he was insufficiently informed to enable him to properly instruct counsel.
The appellant’s next complaint is that instructions were not taken as to whether or not he should give evidence. This is deposed to by both the appellant and his mother in their affidavits.
Counsel’s evidence contradicts this. In her first affidavit she states:
“17. I did not make the decision that Mr. Jones should not give evidence at his trial. At one of our meetings in Court I told him that he would not have to decide about giving evidence until much nearer the trial. Mr. Jones told me that he did not intend to give evidence. I thought this was, in his case, a sensible thing to do.
18. At the 2nd Callover on 12th October I asked Mr Jones if he had changed his mind about giving evidence. He said he had not. I asked him this so that I could type up my list of questions for him to read, answer and later discuss with me.
19. At the close of the Crown case I asked Mr. Jones if he had changed his mind about giving evidence. He said he had not. ”
Again, having heard from trial counsel, the appellant, and Mrs Jones, we have not been persuaded the appellant was advised not to give evidence. Counsel is experienced. We are satisfied it was the appellant’s decision not to give evidence. Having had the advantage of observing the appellant in the witness box, we can understand why counsel would readily concur with the appellant in his decision not to give evidence.
Counsel’s alleged Mistakes in the Conduct of the Defence
No fewer than four mistakes are alleged by Ms Thompson. They are:
(a)Not calling the appellant to give evidence.
(b) Not calling the alibi witness, Brendon Doule.
(c)Not calling witnesses to testify as to the appellant’s whereabouts that evening.
(d)Not cross examining the witness Patel on a crucial aspect of her identification evidence.
We have already dealt with the first ground. Nothing further need be said..
Counsel alleged failure to call Witnesses
On the 22 June counsel wrote to the appellant asking if the alibi witnesses would give evidence on his behalf, and if they were prepared to do so, requesting they meet at Court on the 27 July. There was no reply to that letter, so on the 2 August counsel wrote direct to the witnesses. On the same day counsel wrote to Mr Jones advising of this fact, and asking him to assure that the witnesses were present on the 12 October.
No reply was received from any of the witnesses, and the letter to Mr Doule was returned on the 8 August. Counsel deposes that she told Mr Jones this, and to make sure he brought them to Court at the next appearance.
At the second call over none of the proposed witnesses were present, and there were no replies to the letters. Counsel asked the appellant about this, and his reply was that the witnesses, especially Mr Doule, did not want to come. He refused to give any explanation for this. Counsel stated that she could summons them, but the appellant said not to do this. There was then a discussion how the evidence could be drawn out from the cross examination of Constable Grant, which is what occurred at trial.
The appellant denied counsel’s account of what occurred, and maintained he was never told that summonses could have been issued. In this he was again supported by his mother, who went further and said he was telephoned by counsel two days before the trial and she said not to bring the witnesses. Counsel denies this.
In cross examination counsel pointed out that it would have been fair easier to simply issue summonses, rather than write the letters, and it was something commonly done. Counsel was adamant that the appellant did not want these witnesses summonsed.
Again, having heard from trial counsel, the appellant, and his mother, we have not been persuaded by the appellant’s claims. But there are additional considerations.
In relation to the purported alibi witness, Mr Doule, there is a contradiction in his statement to the police as to when he saw the appellant on the night in question. It also appears that he has convictions for dishonesty. Both of these matters could have been exploited by the Crown, both in cross examination, and in closing.
We do not have affidavits from the other witnesses. Counsel drew out in cross examination of the constable the matters that Ms Thompson stressed would have been so vital to the defence. In the absence of affidavits from those witnesses and from Mr Doule, there is no probative evidence that what they could have said would have advanced the defence case in any plausible way.
Identification Evidence
Ms Thompson criticised counsel for not cross examining the witness, Ms Patel, on when she actually said she recognised the appellant. Ms Thompson said that this was clearly in the forefront of the Jury’s mind because of the Jury question:
“Didn’t Ms Patel identify the accused by name to Police on the night in question?”
Ms Thompson submitted that this showed the Jury had in their minds that Ms Patel knew the appellant sufficiently to name him, and that they were conscious Ms Patel told the police she recognised the appellant from school. Ms Thompson said that without evidence to the contrary the Jury drew the adverse inference that this recollection came from her actual memory of the crime scene, and not some two hours later from photographs at the police station.
As counsel pointed out in her affidavit, if the photographs had been referred to in cross examination the Jury may well have concluded that Mr Jones had criminal convictions. It would also have strengthened Ms Patel’s evidence that she recognised the person from school, and had picked him out from 400 photographs.
Ms Thompson accepted that such a course of cross examination would be a calculated risk, but said it was not a tactical decision and the risk was worth running.
In our view, the decision not to cross examine Ms Patel as to when she realised the appellant’s identity was a correct tactical decision. To adduce evidence that the appellant’s photograph was one of 3 chosen from over 400 would be clearly prejudicial to the appellant’s case.
This tactical decision falls well short of being a “radical” or “fundamental” mistake.
We also note, for the sake of completeness, that the comments in paragraph 12 of Ms Thompson’s written submissions that Ms Patel made no formal identification of the appellant during her testimony is incorrect. At page 2 of the notes of evidence Ms Patel said:
“I opened the door and I saw the boy, him….”
At which stage she pointed at the appellant.
The Circumstances of the case generally give rise to an appearance of Injustice.
Ms Thompson referred to the following comment in the sentencing notes:
“I cho[o]se not to comment on the trial. The issue was identification and it is very much at the forefront of my mind that this young man and his family adamantly deny that he was the true perpetuator of the burglary. I cannot comment on that issue because a jury chose to find him guilty but I have no doubt that Mr Jones and his family and his Counsel will take whatever steps they find appropriate in respect to exploring any further avenues that may or may not be available to them in seeking what they consider to be justice.
Let me view the matter in an objective fashion as I must and put aside those considerations.”
Ms Thompson submitted that this would lead an objective observer to infer that justice had not been done in the circumstances of the trial. She said that this, coupled with the other factors relied on, led to a real risk of a miscarriage of justice.
In support of this submission, she cited from the decision of this Court in R v Moore (CA159/00, 27 July 2000, at pp 7 –8) where Robertson J stated:
“In a situation where identification was the only issue, and that identification was virtually wholly reliant on the evidence of the complainant who had been subject to substantial attack and at least made some acknowledgement of unreliability, the fact that the trial Judge at sentencing considered it necessary or appropriate to express some view about this cannot be ignored….
The Judge’s comments on such an aspect of the trial in the course of sentencing the appellants were inappropriate. The Judge was bound by the jury’s verdicts and his comments could only cause doubt on them. This Court is now faced with a situation in which the trial Judge has effectively said the trial was unfair. That being the case it makes it difficult to hold that justice will appear to be done if the Court does not allow the appeal and direct a new trial.”
However, if one considers the circumstances of R v Moore (supra) it is far removed from the comments of the Judge in this case. What the sentencing Judge said in that case was:
“In the event this matter is considered by another Court, I record my views of the witness Arellano. I found him in many respects totally unreliable, unconvincing and lacking in credibility. Of course, the jury were entitled to accept part of what a witness says and reject other parts. In this case they must have been satisfied insofar as Arellano’s identity of you two were concerned, he was correct.”
That is a vastly different circumstance from that confronting the Court in the present case. In this case the Judge has specifically refrained from commenting, merely noting that the appellant and his family did not accept the verdict, and they were free to take appropriate steps to address that perceived injustice. That falls well short of the situation in R v Moore (supra).
In this case counsel in correspondence fairly and fully informed the appellant of the process, and we have no doubt he understood it. He was included in that process, as was his mother. We have not been persuaded it was other than his decision not to give evidence, and not to call the witnesses referred to earlier. Counsel handled the cross examination surrounding the identification issue with the care and skill we would expect from such an experienced counsel.
The only criticism that could be levelled at counsel is the failure to keep written file notes, and obtain written instructions. This case highlights the need for defence counsel to keep full file notes, to record their instructions in writing, and, in particular, where an accused elects not to give evidence to have that decision recorded and signed.
For these reasons we are satisfied there is no “real” risk of a miscarriage of justice. The appeal is dismissed.
Solicitors:
Valiant Hooker & Partners, for the Appellant
Crown Solicitors.
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