The Queen v Robert Vernon Bell
[2002] NZCA 190
•7 August 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA268/01 |
THE QUEEN
V
ROBERT VERNON BELL
| Coram: | McGrath J Anderson J Glazebrook J |
| Appearances: | R A B Barnsdale for Appellant A Markham for Crown |
| Judgment (on the papers): | 7 August 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
This appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with R29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
The appellant was convicted, following a jury trial, of one count of abducting a four year old boy and sentenced to three years imprisonment. He is currently on parole. He appeals against conviction and sentence.
Relevant facts
The victim of the offending was the son of a woman who had met the appellant, in early October 2000, at the Methodist Church that she and her son attended regularly. They became friends and the mother often invited the appellant to her home. On 20 October 2000, while the appellant, the mother and her son were out together in town, the appellant said that he would take the son upstairs in Deka into the toy department. The mother agreed and said that she would look around the store downstairs for twenty minutes. The appellant said that he returned to the place where they were to meet but could not find the mother. Accordingly he went to see some friends taking the son with him. The appellant then decided to stay at the friend’s place for the next week keeping the child with him. He made no attempt during the week to contact the mother. After the appellant and the child had been at the appellant’s friend’s place for six days the police arrived. The child was returned to his mother unharmed.
Submissions on appeal
The appeal is brought on the basis that trial counsel was incompetent. It was submitted that counsel should have led expert evidence at the trial as to the appellant’s intellectual impairment and that his failing to do so had led to a miscarriage of justice. The appellant’s new counsel, on appeal to this Court, has sought to have fresh evidence admitted in the form of two affidavits. The first affidavit is from a registered clinical psychologist, and the other is from a friend of the appellant. The psychologist’s evidence describes the appellant as having significant deficits in his level of functioning to such a degree that, in the psychologist’s opinion, he would be classified as having an intellectual disability. This evidence, it was submitted, should have been presented to the jury who then would have been in a position to assess whether the appellant was capable of forming the necessary intent to commit the offence of which he was convicted.
The second affidavit, from the friend, states that she expressed her concern regarding the appellant’s intellectual ability to the appellant’s trial counsel prior to the trial, and that she had then suggested that counsel obtain an assessment. She alleges that the trial counsel advised her that the court would not be willing to meet the costs of a report and that there was not enough time to organise it. Following the trial the friend also expressed her concern to the appellant’s probation officer. She showed him letters that the appellant had written and suggested that they be shown to the sentencing Judge. She said they gave an indication of the low level of the appellant’s literacy and communication skills. She was advised by defence counsel this was inappropriate.
A notice of appeal was filed promptly on 23 August 2001 after the appellant was sentenced. After some delay, while the appeal was in the hands of other counsel acting for the appellant, Mr Barnsdale was assigned and he has presented comprehensive and thoughtful written submissions in support of the appeal. He argues that if the jury had been presented with expert evidence on the appellant’s mental capacity they may have formed a more favourable impression of his evidence. This is supported by reference to the psychologist’s report. Mr Barnsdale submits that evidence of this kind would have been available at trial. He also argues that such evidence would have provided defence counsel with an explanation for some of the evidence given by the appellant at his trial which was adverse to the defence of absence of intent.
The Crown argues that the proposed new evidence should not be admitted on the appeal because it is neither fresh (in the sense it was not available at trial) nor of a kind that when considered along with all other evidence might have resulted in a different verdict. The Crown also argues that, in any event, the appellant’s trial counsel was not shown by the new evidence to be incompetent merely because no evidence was called at the trial regarding the appellant’s intellectual functioning. The absence of such evidence it was submitted, was plainly a judgment call on part of the trial counsel. Furthermore, the jury had the opportunity to assess the appellant’s cognitive abilities because the appellant gave evidence at the trial. Counsel had also led evidence of the appellant’s poor literacy skills which was not challenged by the Crown during the trial. The appellant’s case of “simple-mindedness” was very much part of the defence’s closing arguments and the Judge’s summing up. The jury, the Crown submitted, was in a position to assess any defects in the appellant’s intellectual functioning in reaching their verdict.
Finally, the Crown argued that further evidence was not sufficiently cogent to be admitted on appeal. There was nothing in it to indicate that the appellant was incapable of forming the requisite intent under s210 of the Crimes Act. We were referred to a number of passages in the trial transcript which, it was submitted, show that the appellant knew what he was doing was wrong. The appellant told various people at the address where they stayed that the child was “a relation” and “his sister’s baby”. At some point during the week, when it was suggested to the appellant that he could get some food and change of clothes from the mother the appellant made up the excuse that he had to go to “another friend’s” house to collect items for the child. The Crown said this evidence showed his intent was to deprive the mother of the possession of her child. The appellant had also admitted to the police that he didn’t return the child to his mother because he enjoyed the child’s company. He had also admitted knowing that this was wrong and, when asked why he thought the boy’s mother had contacted the police, he replied “because I didn’t take him back when I should have.”
Decision
It is clear that the appellant’s counsel at his trial was alert early on to the possibility that the appellant might be assisted by a report addressing his mental abilities. On 11 January 2001, at a bail hearing, counsel sought and the Court ordered a psychiatric report be obtained. The report stated that the appellant was fully aware of the details of the alleged offence his version of events being that it was a misunderstanding. The psychiatrist also reported that there was no thought disorder, or hallucinations, and that the appellant’s “cognitive functions were intact”. He concluded there was no mental illness and that the appellant was fit to plead. The appellant “knows the nature, quality and moral wrongfulness of the alleged offences and, therefore, is criminally responsible for his actions.”
Unusually we have not been assisted in this case by an affidavit from trial counsel explaining his actions. In these circumstances we have considered the additional evidence which the appellant applied to have admitted. We are, however, satisfied that trial counsel having obtained the psychiatric report, which addressed the appellant’s cognitive functions, made a reasonable judgment call in deciding to run the defence of absence of intent without further exploring the possibility of calling expert evidence. The Crown would have called the psychiatrist with considerable risks to the defence. In those circumstances it was not incompetent on counsel’s part to confine himself to calling the appellant to give evidence so that the jury could assess whether his low level of intellectual functioning raised a doubt as to whether his intent had been proved beyond reasonable doubt.
We are also satisfied that the way the defence was run put the jury in a sound position to assess the appellant’s cognitive abilities and their relevance to the defence of lack of intent. The question was a central issue at the trial. In his directions to the jury the Judge appropriately accepted the defence contention that the jury should decide on the evidence what the appellant believed from the appellant’s standpoint and point of view. The Judge was also entitled to point out that the claims of a relative degree of simplicity had to be assessed in the context of the appellant’s apparent ability to explain things in his evidence with a reasonable degree of particularity.
In the end the appellant’s evidence did not assist his portrayal of himself as relatively simple. Furthermore, we agree with the Crown submission that the psychologist’s evidence and report, if admitted, would not have significantly altered the position of the appellant before the jury. They do not go so far as to indicate the appellant was incapable of forming the necessary intent.
Accordingly, although we have received and considered the additional evidence submitted to us, it does not persuade us that there may have been a miscarriage of justice in this case. The appeal against conviction is accordingly dismissed.
The sentence of three years imprisonment imposed on the appellant reflected the trial judge’s clear view, which he expressed at sentencing, that the appellant’s “problem with not being able to think straight is not as large in this case as has been suggested it might be”. The Judge was entitled to take the view that the appellant knew full well what his responsibilities were in retaining his possession of the child and to take the view a deterrent sentence was required. Having regard to these considerations we are satisfied that the sentence imposed was within the range open to him.
The appeal against sentence is accordingly also dismissed.
Solicitors
Crown Law Office, Wellington
0
0
0