THE QUEEN v DEIDERICK JOHN GRANT [1999] NZCA 99 (27 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca64/99

THE QUEEN

V

DEIDERICK JOHN GRANT

Coram:	Thomas J Blanchard J Tipping J
Decision (ex parte):	27 May 1999

judgment of the court DELIVERED BY TIPPING J

[1] The appellant Grant and his co-accused, Thompson, were found guilty by a jury on one count of aggravated robbery and both were sentenced to six and a half years imprisonment. The appellant now appeals against that conviction. He was refused legal aid by the Registrar after consultation in accordance with the Legal Services Act and was invited to make written submissions. The appellant's written submissions have been taken into account.

[2] The appellant's conviction relates to events which took place on 27 November 1997. The Crown case was that five persons arrived at a Raglan property in a stolen vehicle. The driver stayed in the vehicle, while the others entered the property. The Crown alleged that the four who went onto the property were the appellant Grant, Thompson, Pairama, and Te Iringa. The Crown claimed that Pairama had a stolen shotgun, Grant a .22 pistol, and Thompson a metal baseball bat. All allegedly wore balaclavas and gloves.

[3] The occupants were woken up and forced to lie face down on their beds. A variety of items were taken. The shotgun was used as a threatening device and a round was ejected from the pistol. The telephone lines were also cut. One of the items taken, a passport, was later found next to the stolen utility, along with a sack containing items belonging to Grant. Another of the stolen items was found at Grant's house along with the pistol, which Grant accepted belonged to him.

[4] The driver was granted an immunity from prosecution and gave evidence for the prosecution to the effect that there were five men involved. Both Grant and Thompson attacked the credibility of this witness, claiming that there were only three men involved in the armed robbery: Pairama, Te Iringa and the driver. Both Grant and Thompson pleaded alibi: Grant claimed that he was asleep on his own in shearers' quarters on a farm in Ohautira Road, while Thompson asserted that he was at a social gathering in Morrinsville. Pairama, who pleaded guilty, gave evidence on behalf of both Grant and Thompson to the effect that there were only three men involved. From the jury's verdict of guilty, it is clear that they preferred the evidence of the driver to that of Pairama, the alibi witnesses and Grant and Thompson themselves. Grant puts forward two main grounds in support of his appeal.

[5] First, the appellant refers to the evidence given by Pairama. In the course of giving evidence, it emerged that Pairama had pleaded guilty and been sentenced. Prior to sentencing he was interviewed by a probation officer. During cross-examination it was put to Pairama that the probation officer had with him a summary of facts and that Pairama had accepted that summary. It was stated in the summary that five men were involved in the robbery. On the basis of this evidence the Crown brought an application to call rebuttal evidence from Mr Davis, the probation officer. The Judge noted the general rule that the prosecution must call the whole of their evidence before closing their case, but there is a judicial discretion to allow the prosecution to call rebuttal evidence. The Judge exercised his discretion in favour of the Crown and allowed the prosecution to call evidence from the probation officer in rebuttal.

[6] The relevant evidence given by Pairama during cross-examination starts at p 134, line 16 of the notes of evidence:

Q One of the things Mr Davis had was the summary of facts which the police filed and alleged what you had done and if you have a look at p 2 of the pre-sentence report, first sentence under factors related to offending, it says Lesley Pairama accepts the summary of facts, see that?

A Yep.

Q That's because Mr Davis sat down with you and gone through the summary of facts with you and you agreed with it?

A At this time I agreed with whatever because it didn't make any difference, I wanted to get it over and done with.

Q Look at the document, do you recognise that as the summary of facts used at the sentencing of yourself?

A Can't recognise any, all the information looks the same to me, I didn't pay much attention. I pleaded guilty and I knew I was looking at a big leg. I just wanted to get it dealt with, I wasn't interested in the summary of facts, I can't recall going over anything with Mr Davis, I just went yes whatever.

Q Look at that document, do you confirm its about you, Bernie Te Iringa, James Herewini, and William Warehu and your offending for which you got sentenced by Judge Callender, on 3 July 1998?

A That's what it appears to be yes.

Q That's the document filed in the District Court from the court file, you can tell that, do you accept that?

A Yep.

Q Remember the prosecutor at the sentencing reading that out?

A I can't remember, didn't make any difference to me.

[7] Shortly after that evidence was given, defence counsel objected to the prosecutor seeking to go through the detail of the summary of facts on the basis that Pairama did not recognise the document. Ultimately, the Judge did not have to rule on this point. The cross-examination resumed the following day. See p 137 of the notes of evidence:

Q Did you say to your probation officer about a summary of facts that said there were five of you involved in the aggravated robbery of Stoddard and four went inside that you accepted it?

A No.

Q You didn't say that?

A No, I never.

Q Do you accept that's the case that there were five or four went inside and one stayed outside?

A No.

Q Yesterday when I suggested to you that Mr Davis had the summary of facts and you agreed with it you said [p 134, line 22] `At this time I agreed with whatever because it didn't make any difference. I wanted to get it over and done with'. You said that yesterday?

A Yep.

Q Have you now remembered that you didn't accept the summary of facts?

ADidn't Make any difference to me at the time. I was under a lot of stress at the time of the sentence.

[8] The appellant submits that the prosecution was putting across the idea that Pairama did plead guilty on the understanding that five persons were involved in the robbery, whereas in fact Pairama did not have that understanding. He pleaded guilty, alleges the appellant, in order to `clear everything up'.The jury heard the evidence of both Pairama and Davis, as well as that given by Grant and Thompson themselves, and it was the jury's role to determine the credibility of these witnesses. Their verdict indicates that they preferred the evidence of the driver. The Judge had a discretion whether or not to allow the rebuttal evidence to be called, but the appellant in his written submissions has not directly challenged the manner in which that discretion was exercised.

[9] The appellant also objects to the evidence of the driver, who was given an immunity from prosecution in return for testifying for the Crown. The Solicitor-General signed a document on 16 March 1998 in which the driver was granted an immunity from prosecution in relation to a long list of incidents on the condition that he would, if required, give evidence in the prosecution of a number of named persons. Neither Grant nor Thompson were named in that document. In a further document dated 8 December 1998, in relation to the aggravated robbery in Raglan on or about26 November 1997, two of the names had been deleted and the names of Grant and Thompson substituted.

[10] The appellant submits that the prosecution had ample time to review the document, but that the driver, when admitting to his involvement in the robbery in the High Court on 7 December 1998 found that he did not have immunity on that charge, and so refused to co-operate any further until he had the new documents in his favour. The appellant suggests that the driver was willing to say anything to get off his charges as he had protection of the Solicitor-General.

[11] It should be noted that it was made clear to the jury at the beginning of the driver's evidence that he was given an immunity from prosecution in return for giving evidence for the Crown.

Q ... did you enter into discussions with the police and the Crown through your lawyer in relation to your giving evidence against various persons in exchange for you gaining immunity from prosecution in respect of the part you'd played in the various crimes committed over the preceding months?

A That's right.

Q Ultimately were you granted by the Solicitor-General for New Zealand immunity from prosecution on the condition that you give evidence if required to do so against various persons in trials in New Zealand?

A Yep.

[12] The members of the jury were well aware of the circumstances under which this witness was testifying, and were quite capable of weighing this evidence against that given by Pairama and the other witnesses for the defence.

[13] Ultimately, the central question for the jury in this case was credibility and whether they preferred the case put forward for the Crown or that put forward for the defence.The verdict of the jury obviously reflected their assessment.None of the points raised by the appellant suggests there has been any miscarriage of justice.Nor can it be said that the verdict of the jury was not open to them on the evidence or was otherwise unreasonable.

[14] The appeal is therefore dismissed.