The Queen v Riri

[2009] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

CA715/2008
[2009] NZCA 243

THE QUEEN

v

RICHARD RIRI

Hearing:12 May 2009

Court:Ellen France, Priestley and Miller JJ

Counsel:T Sutcliffe for Appellant

G H Allan for Crown

Judgment:12 June 2009 at 2.30 pm 

JUDGMENT OF THE COURT

Leave to file the notice of appeal out of time is granted but the appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was convicted after a jury trial of one count of burglary.  He was sentenced on 14 May 2008 by the trial Judge, Judge Wolff, on this and another charge of burglary to a term of two years imprisonment: DC HM CRI-2007-019-663/8585.

[2]       The appellant appeals against his conviction.  The basis for the appeal is that he has further evidence which he says casts doubts on the Crown case.  The further evidence relates, first, to the identification of the appellant as the offender and, second, to what is now advanced as an alibi defence.  In the result, the appellant submits there has been a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961.

[3]       The Crown opposes the application to admit new evidence on the basis it is neither fresh nor cogent.

Factual background

[4]       The charge related to the taking of a television from a house at 61 Firth Street, Hamilton East on 3 July 2007.  The burglary took place mid-morning that day.  The Crown case was that the appellant was identified at the scene of the burglary and was associated with the car used in the burglary.

[5]       The main Crown evidence at trial came from Ms Raeleen Blair.  Ms Blair described what she saw whilst walking in the Firth Street area around 11 am on 3 July.  She noticed a silver four-door car.  She said that the vehicle had two male occupants, both “Maori, Polynesian” and that the vehicle moved slowly along the street before turning right into Firth Street.

[6]       When Ms Blair next saw the car, it was up the driveway at 61 Firth Street.  She described seeing the two male occupants of the car waiting around on the property.  Ms Blair said she saw the man she later identified as the appellant sitting outside the house on a deck at the back door.  At this point she said she was about three metres away from the men.

[7]       After Ms Blair moved down the street, she heard a bang.  She looked back and could see a figure in the lounge of the property at 61 Firth Street.  The figure walked towards the television in the lounge.  She noted the car registration number as SL8107, went home, and then rang the police.

[8]       Ms Blair was asked in evidence-in-chief about the appearance of the two men.  She said one had a hat on.  The other man she described as having “kind’ve longer hair” but not long enough to tie back.  She thought this man was in his early twenties, late teens.  (The appellant was 34 years old at the time.)

[9]       Ms Blair was subsequently asked if she could identify the man without the hat whom she had seen in Firth Street from a montage of photographs prepared by the police.  She picked out the appellant. 

[10]     In his photograph in the montage, the appellant has a beard and short hair.  Ms Blair was asked in cross-examination whether or not the man she later identified as the appellant had facial hair at the time.  She said she could not remember.  Ms Blair confirmed she had said in her evidence-in-chief that the man had “longish” hair.

[11]     There was also evidence at the trial from a police officer who said that on 6 July 2007 he had seen the appellant and another man, James Smith, looking under the bonnet of the car with the registered number SL8107.  The officer also gave evidence of the appellant’s statement to the police in which he said he had not committed the burglary and that Mr Smith borrowed the car from someone else.

[12]     The appellant, who was represented at trial by Mr Boot, gave evidence.  In his evidence-in-chief he said he had not been to 61 Firth Street on the day of the burglary although he was living not far down the road when he was arrested.

[13]     In cross-examination, he reiterated that he was telling the truth when he had told the police officer that he did not know where 61 Firth Street was because at the time he did not know where the street was.  Later on in cross-examination he admitted that on 3 July he had been at 94 Firth Street.  He also explained that Mr Smith had come to visit him that afternoon in the car involved in the burglary.  They had gone for a ride and Mr Smith had dropped him in Mangakino where he had stayed for a couple of days.  The appellant also accepted that he had been with Mr Smith in the car the day before the burglary.

[14]     The other matter we should mention as part of the factual background is that the appellant’s first trial on this charge was aborted on 20 March 2008 just prior to summing up.  A mistrial was declared because inadmissible evidence had been admitted.

The further evidence

[15]     We set out first the further evidence relating to identification.

The Maori Television news item

[16]     Mr Riri seeks to adduce a DVD from a Maori Television news item broadcast on 11 June 2007.  The news item shows him at the Mangakino Marae with short hair and no beard. 

[17]     The appellant filed an affidavit from Wena Harawira, the head of the department of News and Current Affairs at Maori Television about the footage.  Ms Harawira explains she received a request in early April 2008 from Mr Riri for a copy of the news item relating to the Mangakino marae broadcast on 11 June 2007.  She also says that she thought a DVD incorporating the footage of the marae was sent to the appellant immediately, but there was a family illness which meant that the DVD was not sent until later.  It arrived in Mr Boot’s office about ten days after the trial had finished, on 24 April 2008.

[18]     Ms Harawira says the footage would have been shot on 10 or 11 June.

[19]     In his affidavit filed on appeal, the appellant says he told trial counsel about the footage but appears to accept he may not have been clear about his instructions. 

[20]     Mr Boot’s evidence is that the appellant did mention the issue of the footage to him but, he says:

[T]o the best of my recollection it was mentioned in passing and was not an issue I was asked to take further.  Had I been instructed to obtain the footage I would have endeavoured to do so.  I note that the appellant has deposed that he wrote to Maori television himself, which confirms in my mind that it was not something I had been instructed to investigate or pursue on his behalf.

[21]     We turn then to the evidence advanced in the form of alibi evidence.

Visit to Mangakino

[22]     The relevant evidence under this head comes first from the appellant.  Mr Riri says that after going to prison he had “gone over” things in his mind.  This exercise led to his recalling that he had gone to Mangakino with his girlfriend in early 2007.  They had travelled there in the car involved in the burglary together with Mr Smith and Mr Smith’s girlfriend.  He and his girlfriend had stayed overnight in Mangakino and the two had travelled back to Hamilton on their own the following afternoon.

[23]     The appellant also explains that he remembered borrowing $40 from his aunt and this led him to make various inquiries of the bank and of his aunt, Mrs Walker.  As a result, Mrs Walker wrote to Mr Riri confirming he and his girlfriend had visited her in Mangakino on 3 July.

[24]     The second affidavit is that of the appellant’s aunt, Mrs Walker.  She says that the appellant visited her in Mangakino on the morning of 3 July together with his girlfriend.  She explains that she remembers the visit, first, because it was unusual and, secondly, because she kept a diary which she consulted.  As to the length of the visit, she says she can be clear about that because her husband was undergoing dialysis and was very strict about the time at which he commenced that.  He undertook the dialysis at 10 am each day for about half an hour.  She says that the appellant left “not long after” the dialysis treatment had concluded.  Putting these factual matters together, Mrs Walker says that the appellant left her house no later than 11 am, possibly a bit earlier on 3 July.  She explains also that the appellant borrowed $40 from her that day.  He repaid the money on 5 July.

[25]     The accuracy of Mrs Walker’s evidence is not challenged by the Crown.  Instead, the Crown relies on the evidence of Senior Constable Read to show that it was still possible for the appellant to have been in Firth Street at the time of the burglary.  Senior Constable Read notes that Ms Blair’s evidence at trial was that after witnessing the burglary, she went straight home and rang the police as soon as she got home.  She also said that it took her a “couple of minutes” to get home. Ms Blair’s call to the police was received at 11:46:24 on 3 July. 

[26]     Senior Constable Read explains that he drove over the route from Mrs Walker’s home in Mangakino back to Firth Street.  He did so following two possible routes, one of which was some 105 kilometres and the other some 110 kilometres.  He said that travelling both routes within the speed limits and on both occasions with stoppages of ten and seven minutes respectively, each trip was completed in one hour twenty minutes.

The relevant principles

[27]     The principles relating to the admission of the further evidence are those described by this Court in R v Bain [2004] 1 NZLR 638 at [22] to [27]. The new evidence must be sufficiently fresh and sufficiently credible. As this Court noted in Bain at [22], ordinarily, if the evidence could with “reasonable diligence” have been called at the trial, the evidence will not be sufficiently fresh. As the Court also said:

[22]     …  This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.  The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation.  If that were not so, new trials could routinely be obtained on the basis that further evidence was now available.  On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been.  The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[23]     … In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.

[28]     If the evidence does qualify for admission, the Court will then need to consider whether there is a miscarriage on account of the new evidence not being before the jury.  This will require consideration of whether the new evidence, when considered along with the evidence at trial, “might reasonably have led the jury to return a verdict of not guilty”: Bain at [24]. As noted in R v R CA130/98 24 September 1998 at 3 to 4 (CA), it is not sufficient that the evidence merely “bolsters” the defence case.

[29]     Although the appellant did not develop the ground of appeal based on counsel competence, the proposition from R v Sungsuwan [2006] 1 NZLR 730 at [70] (SC) is also relevant, namely, that the ultimate question is always whether “justice has miscarried”.

Submissions on appeal

[30]     The appellant accepts that the Maori Television evidence is not fresh.  This aspect, Mr Sutcliffe submits, has to proceed on the basis that there was inadequate communication of the appellant’s defence to his trial counsel.  The evidence is however, he submits, inherently credible.  Accordingly, the argument is that although not fresh, the cogency of the evidence is such that the interests of justice warrant the Court’s intervention.

[31]     The appellant also accepts that the Court may not consider the “alibi” evidence is fresh either.  Mr Sutcliffe suggests this is a matter on which the appellant has had the opportunity to reflect on more fully and has then pursued a “sneaking suspicion” about his whereabouts on 3 July.  Again, it is submitted this evidence is inherently credible and that it goes to the heart of the case.

[32]     The Crown submits both categories of evidence are not fresh because this evidence was available at trial.  It is accepted that the Maori Television footage is incontrovertible.  But, Mr Allan says, the same cannot be said of the “alibi” evidence.  That is because it contradicts the appellant’s evidence at trial.  Effectively, Mr Allan argues, admission of this further evidence would necessitate the appellant recanting on his evidence at trial.

[33]     As to the cogency of the evidence, Mr Allan argues that in context the Maori Television footage adds little.  Similarly, given the evidence from Senior Constable Read, the “alibi” evidence does not in fact provide an alibi.  The appellant could easily have travelled back from Mrs Walker’s leaving when she says he left and still arrive at Firth Street in time to commit the burglary.

Discussion

[34]     Neither category of evidence meets the freshness threshold because it was available at the time or could have been with reasonable diligence.

[35]     The appellant referred to the Maori Television footage in the course of his cross-examination at trial.  He did so as part of his explanation that Ms Blair had got the wrong description of him.  The appellant said this:

[S]he said she swore on oath that I had four to six inch long hair and I didn’t, I’ve – on the 6^th when we were pulled up in Countdown that day, you get the description of me when they came to see us that day I had short hair, just slightly longer than now, so that’s all I can say about the witness.  I got, I got video evidence off Maori television of what I looked like on the 26^th June, and I’ve got short hair, I, I was actually waiting for that to get delivered to me, the last few days.  That’s the only issue I have with that Ms Blair’s evidence.

[36]     A little later in his evidence he also suggested that Ms Blair had made a sworn statement that he had hair “four to six” inches long and that he had evidence that he did not.

[37]     The evidence from Mrs Walker was also available at the time of the trial if reasonable inquiries had been made.  These were all matters within the appellant’s knowledge and his explanation of confusion at the time is not sufficient for the evidence to qualify.  Mr Riri was extensively cross-examined at trial about his whereabouts on 3 July and what he says now is inconsistent with his responses at trial.

[38]     We add that the Crown had given notice that Mr Riri was required to be present at the hearing of the appeal to be cross-examined on his affidavit.  Mr Riri did not appear at the hearing.  Counsel agreed that the better course was to proceed and we have dealt with the appeal on that basis although, arguably, little weight should be given to the appellant’s affidavit in these circumstances: R v Warner [2009] NZCA 172.

[39]     There is therefore a failure to meet this part of the threshold.  Nonetheless, we go on to consider the second limb.

[40]     We accept that both the Maori Television footage and Mrs Walker’s evidence as to the appellant’s visit on 3 July are credible.

[41]     The footage, however, would not have done any more than bolster the defence case.  At best, this evidence may have been used to commit a confident witness to a statement that the appellant had long hair and then to stump her.  However, ultimately, the evidence does not assist greatly because Ms Blair, the eye-witness, did not base her evidence on the hair length.  In fact, she was fairly equivocal both at this trial and at the appellant’s earlier, aborted, trial about the hair length.

[42]     When interviewed by the police within a quarter of an hour of the burglary, Ms Blair told police the man she later identified as Mr Riri had “medium length hair”.  It was when she was next spoken to by police, on 11 July, that Ms Blair said the appellant had “longish hair to his collar about six inches in length all over”.  Any cross-examination on the basis of the second statement would have been undermined by the first statement made almost immediately after the burglary.

[43]     The position may have been different if the appellant had properly communicated his defence to his trial counsel but he did not.

[44]     The “alibi” evidence has some cogency because the appellant would have had to proceed almost immediately to the burglary on his return from Mangakino.  However, this again ultimately does no more than potentially bolster the appellant’s case.  Further, some weight has to be given to the fact that the alibi evidence is raised for the first time after two trials.  Regardless of what those delays say for the credibility of the evidence, the interests of finality weigh strongly in this case where these were matters wholly within the appellant’s knowledge. 

[45]     In all the circumstances, we do not consider that the threshold for the admission of new evidence has been met or that this is a case where justice has miscarried.

Disposition

[46]     For these reasons, we decline to grant leave to admit this evidence with the effect that the appeal is dismissed.  We add that the appellant, having completed his sentence, abandoned an appeal against sentence and it is formally dismissed.

[47]     The appeal is approximately five months out of time.  The appellant has provided an explanation for the delay.  The Crown did not object to the appeal being dealt with out of time.  In these circumstances, leave to file the appeal out of time is granted.

Solicitors:

Crown Law Office, Wellington