The Queen v Te'O

[2009] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA326/2007
[2009] NZCA 109

THE QUEEN

v

ARTHUR PENAIA TE'O

Hearing:31 March 2009

Court:Robertson, Gendall and Keane JJ

Counsel:M A Edgar for Appellant

M D Downs for Crown

Judgment:2 April 2009 at 9 am

JUDGMENT OF THE COURT

LEAVE TO PRODUCE ADDITIONAL EVIDENCE IS REFUSED AND THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

Introduction

[1]       The appellant was convicted of aggravated robbery in the District Court at Auckland on 15 May 2007 (DC AK CRI-2003-004-025629), after a jury trial presided over by Judge Treston.  He was sentenced to two and a half years’ imprisonment.  He appeals against his conviction only.

Background

[2]       On 23 June 2001, an Auckland service station was robbed of $500 and several packets of cigarettes by two men disguised with balaclavas and armed with a machete.  Within a very short time of the robbers departing, the Police arrived, the service station premises having been locked in the meantime.  A scene examination revealed a used cigarette butt at the doorway into the service station premises.  It had some ash around it, consistent with the butt having been very recently dropped.  The appellant would not have been apprehended but for the fact that forensic analysis of the butt revealed that it contained the appellant’s DNA.  It was said to be at least 50 thousand million times more likely that that DNA was from the appellant than an unrelated male selected at random from the New Zealand population.

[3]       There was evidence at trial of closed circuit television footage (“CCTV”) obtained from the service station.  A Police Officer viewed the videotape, extracting some still photographs from it.  The images on the videotape are not shown in continuous sequence because they are derived from several cameras recording scenes and a small time delay may exist between each image.  A copy of the videotape, slowed to enhance what it depicted, was shown to the jury.  The evidence of a Police Officer, Constable Cubitt (which included cross-examination) was read by consent.  There had been an earlier trial which resulted in a hung jury.  His evidence was that he had watched the tape sequence and said he observed, in the area of the doorway:

One offender run in, a second offender followed him at a slower pace.  The second offender, I timed him standing at the doorway for approximately four seconds and although it was frame by frame I could see a lifting of the arm movement about twice.  This corresponded directly above where the cigarette butt was located at the doorway.

[4]       In cross-examination by counsel at the earlier trial, the Police Officer confirmed that he was able to discern one of the offenders raising his arm “a couple of times”, and when it was put to him:

So, as if, for example, he was smoking a cigarette – perhaps?

He answered:

I couldn’t determine that but perhaps.

He said that that person was standing directly above where the cigarette butt was located.

[5]       The CCTV footage relating to the several hours preceding the robbery did not disclose the appellant having entered the service station.  He denied to the Police having been to the service station.  A critical question obviously was:  how did the cigarette butt, if his, get there?

The appellant’s case

[6]       Mr Edgar submitted that Constable Cubitt was not qualified as an expert to express opinions about what he observed in the CCTV videotape.  He sought leave to adduce new evidence from Rodney David McCourt, described as a forensic imagery analyst.  Mr McCourt is an expert in the field of analysing images and operates a company aimed at providing assistance to law enforcement and legal communities on the analysing of images arising from the increasing use of videotaped evidence in Courts.  If admitted, the proposed evidence of Mr McCourt would be:

·Whilst the imagery in the CCTV videotape is not of sufficient quality to determine many features, it lends limited support to the contention that one of the robbers raised his right hand at the doorway of the Mobil service station.

·The CCTV footage is not of sufficient quality to discern whether or not a cigarette was present in the hand of that man, or that he discarded a cigarette butt on to the ground beside where he was standing.

·There is evidence to suggest that the man depicted could have one of his arms in the raised position and at best the imagery “lends limited support to the contention that [that offender] was smoking a cigarette”, but lends no support to the contention that the man discarded a cigarette butt on the ground. 

[7]       Mr Edgar submitted that the jury ought not to have entered a verdict of guilty against the appellant as the contents of the evidential videotapes did not support what he said was the Police Officer’s evidence that a person standing in the doorway for approximately four seconds raised his arm twice just before the robbery took place.  He contended that the Crown had failed to prove that the person in the videotaped footage did in fact discard a cigarette and that a miscarriage of justice resulted because any inference drawn by the jury (that one of the robbers was the appellant and it was he who discarded a cigarette butt) could not have been drawn from established facts.

Should the evidence be admitted?

[8]       The legal principles applicable when evidence is sought to be adduced on appeal are well known;  see R v Bain [2004] 1 NZLR 638. An appellant must demonstrate that the new evidence is sufficiently fresh and sufficiently credible and, in the end, the discretion to admit new evidence under s 389 of the Crimes Act 1961 is to be exercised in a manner which meets the overall interests of justice. There will be occasions where relevant significant evidence although not called at trial (even though it might have been, with diligence on the part of an accused or his counsel) still has to be admitted even although to that extent it is not “fresh”. The crucial point is whether the evidence is cogent, credible and pivotal so as to have possibly made some difference, or had some impact, on the trial.

[9]       The Court is wary of attempts by counsel seeking to pursue more than one opportunity of advancing a defence case through having more than one opportunity to run different defences.  Clearly the evidence of Mr McCourt is not fresh and the CCTV videotapes were available from a very early time to be inspected, in the way the Police Officer did, by him or any other expert who might express an opinion about its contents.  The footage was played at normal speed at the trial of the appellant and the jury could see it for themselves.  They could have agreed, or not, with what Constable Cubitt said he observed.

[10]     However, the Police Officer did not in fact say he saw a man smoking a cigarette, but simply that the offender raised his arm towards his face in the manner which Mr McCourt, in his proposed evidence, agrees happened.  That would have been something equally obvious to the jury.  The five still frames from the CCTV, referred to in the affidavit of Mr McCourt, are said to depict the offender with his right arm apparently raised, and his hand in the vicinity of the mouth.  There is really very little difference of opinion between the proposed evidence of Mr McCourt and that of Constable Cubitt.  There is a minor distinction in that the Police Officer considered the offender stopped in the doorway, whereas Mr McCourt says the offender’s movements were more continuous.  But the evidence lacks cogency in the sense that it could in any way have assisted the appellant.  It largely confirms that of the Police Officer, that the actions of the appellant were consistent with those of someone who may have been smoking a cigarette.

[11]     What was known, and what the appellant had to squarely confront, was that a fresh cigarette butt was found in the service station doorway very shortly after the robbery which, according to the DNA evidence, had almost certainly come from the appellant.  The proposed evidence as to the offender’s movements was consistent with a person placing his hand to his mouth in a manner akin to smoking a cigarette.  Bearing in mind that the jury saw the robbery that occurred on the CCTV, it was open to it to conclude that a cigarette butt had been discarded during that event by the offender, and that offender was the appellant because no other reasonable inference could be advanced as to how the appellant’s DNA could arrive at the crime scene when he maintained he had never been there.

[12]     If the proposed evidence of the expert had been pivotal to the case and the jury’s assessment of guilt or innocence, then it would need to be admitted.  In this case it is not really fresh and would not, in any realistic sense, have made any impact upon the Crown’s case or advanced the defence proposition. 

[13]     The inference the Crown sought to draw was that the accused discarded a cigarette butt.  The jury was entitled to reach its own view on the videotape which was played to it, as well as its assessment of all the evidence.  If the evidence of Mr McCourt had been given, it may well have strengthened the Crown case.

Result

[14]     This material is not only not fresh but it is not cogent and would have made no difference.  Therefore it is not admitted and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington