Wrathall v Police
[2012] NZHC 617
•3 April 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2011-409-7 [2012] NZHC 617
JOSHUA WRATHALL
Applicant
v
NEW ZEALAND POLICE
Respondent
CRI-2011-409-6
CRI-2011-409-8
ROBERT THOMAS WRATHALL
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: [On the Papers]
Counsel: BR Green for J Wrathall
M Starling for R Wrathall
TJ Mackenzie for Respondent
Judgment: 3 April 2012
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 3 April 2012 at 11:00 am
Pursuant to Rule 11.5 High Court Rules
Solicitors:
Registrar/Deputy Registrar
BR Green, Cameron & Company, Christchurch: [email protected]
M Starling: [email protected]
T Mackenzie/A Melvin: [email protected] [email protected]
WRATHALL V NEW ZEALAND POLICE HC CHCH CRI-2011-409-7 [3 April 2012]
Introduction
[1] In a judgment dated 29 November 2011,[1] I dismissed appeals by the applicants, Robert Wrathall and Joshua Wrathall, against their convictions on a number of burglary charges and I also dismissed Robert Wrathall’s appeal against sentence.
[1] Wrathall v NZ Police HC Christchurch, CRI-2011-409-6, 7 and 8, 29 November 2011
[2] The applicants applied under s 144 of the Summary Proceedings Act 1957 for leave to appeal to the Court of Appeal on questions of law. In the applications, they claimed that I had misapplied the law relating to propensity evidence. They have now stated the questions of law which the applicants wished to be answered by the Court of Appeal, and have made a joint submission in support.
Background
[3] Robert and Joshua Wrathall are brothers. On 13 October 2009, they were arrested with another man, Ashley Good, after having been surprised in the course of committing a daylight burglary of a dwelling house in School Road, situated in a rural area just outside Christchurch. Property which the Police subsequently identified as being linked to the burglary of similar properties over the preceding month was found in the Honda Legend motor vehicle they were using at the time of their apprehension.
[4] After further investigation, the Wrathall brothers faced 11 burglary charges, four of which were said to have been committed on the day of the School Road burglary. Joshua Wrathall pleaded guilty to three of those burglaries and Robert Wrathall pleaded guilty to two. The only common admission was the burglary of the
School Road property.
[5] The essence of the Police case on the defended burglary charges was that the brothers embarked on a campaign of burglary in primarily rural or semi-rural parts of Canterbury, near Christchurch, in association with Ashley Good, beginning with the burglary of a property in Burwood Road on 15 September 2009.
[6] The evidence against each of the appellants included alleged links between them and property identified as having been stolen in the various burglaries and located either in their possession or in the Honda Legend motor vehicle which the appellants were using on 13 October 2009. In some cases, the Police relied upon on items found on premises said to have been occupied by them.
[7] There was no property link to the appellants in respect of the Burwood Road burglary on 15 September 2009, but a vehicle stolen in that burglary was found at an address occupied by Ashley Good.
[8] There was also no property link between the appellants and a burglary in Weedons Ross Road, but an eye witness identified three olive-skinned, or well- tanned, or non-pale skinned, males running away from that property (having been surprised in the course of committing the burglary), and escaping in a grey Japanese car. It was common ground that Ashley Good and the Wrathall brothers are Maori and that the Honda Legend in which they were apprehended on 13 October 2009 was grey.
[9] In the District Court, the Judge accepted a submission by the prosecutor that all of the evidence in relation to all of the burglaries was admissible against each of the applicants on all of the charges to which they had pleaded not guilty. It had been argued that the evidence should be considered propensity evidence which was admissible under s 43 of the Evidence Act 2006. The Judge noted that the sole issue in each case was the identity of the perpetrator or perpetrators of the alleged crimes.
[10] The essence of the applicants’ case on appeal was that the admissible evidence against them was insufficient to prove each of the charges beyond reasonable doubt, particularly in those cases where there was no evidence linking them directly to a particular burglary.
[11] In the judgment I held:
[30] ... this was a common enough case of circumstantial evidence being led by the prosecution, in which there was evidence linking one or other of the appellants to most of the burglaries, coupled with the central proposition that all of the disputed burglaries appeared to have been carried out by the same person or persons.
[31] To the extent that the propensity evidence rule was engaged, it was open to the Judge to refer to s 43 as a helpful checklist to determining how far the circumstantial evidence of the manner in which the burglaries were conducted could be relied on by the prosecution to prove its case against each appellant, in respect of each burglary, beyond reasonable doubt. If any prejudice arose from the guilty pleas, it would be outweighed if the Court found compelling similarities between the burglaries where involvement was admitted or proved by direct evidence, and those where proof lay in the inferences to be drawn from the circumstances. Bearing in mind that the burglary of domestic dwellings is an all too common occurrence, the strength of the prosecution case here lay in the combination of circumstances as to time; place, point and method of entry; nature of joinery; and type of property taken.
The proposed questions for the Court of Appeal
[12] Mr Green and Mr Starling for the applicants have now provided joint submissions, to which Mr MacKenzie has responded on behalf of the Police. The applicants state the following questions of law which they wish to be considered by the Court of Appeal:
(a) Was the Judge correct by employing a blanket s 43(3) Evidence Act 2006 assessment to all of the alleged offending, instead of assessing each offence individually as to their prejudicial and probative value?
(b)Was the Judge correct in allowing evidence of offending where there was not enough link to conclude that both defendants were present and acted in a joint enterprise?
Discussion
[13] Contrary to the submissions on behalf of the applicants and the first proposed question of law, I did not apply a “blanket” approach to the evidence. I was not influenced to conclude that the appellants had committed all of the disputed offences merely because they had pleaded guilty to some charges. The relevance of the guilty pleas was that the appellants admitted being involved in offending, the facts of which assisted me to conclude that they were guilty of similar offending on other occasions.
[14] I analysed the evidence against each of the applicants in respect of each charge. I determined, in respect of each, that the District Court Judge was entitled to find each charge proved against each applicant beyond reasonable doubt. I am not persuaded that the first question of law proposed by the applicants arises from the judgment on appeal.
[15] The second proposed question simply raises the issue of the sufficiency of the evidence to merit convictions. I made it clear in the judgment that I understood the burden and standards of proof resting on the prosecution. No question of law arises on that issue.
[16] Even if I am wrong, and there are arguable questions of law arising from the judgment, I do not consider they meet the test for leave set out in s 144(2) of the Summary Proceedings Act 1957. That section provides that leave to appeal to the Court of Appeal may be granted by the High Court “... if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.”
[17] As the Court of Appeal said in R v Slater,[2] s 144 is not intended to provide a second tier of appeals from decisions of the District Court.
[2] R v Slater [1997] 1 NZLR 211.
[18] If questions of law arise from the judgment, they are not questions which ought to be submitted to the Court of Appeal. The issue before the District Court Judge and again on appeal was whether the admissible evidence was sufficient to support the convictions. Those are not matters of general or public importance and I am not persuaded that there is any other reason why the Court of Appeal should be asked to consider them.
[19] The applications are dismissed.
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Toogood J
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