THE QUEEN v ALISON CAROLE EDWARDS [2000] NZCA 139 (25 July 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 60/00

THE QUEEN

V

ALISON CAROLE EDWARDS

Hearing:	24 July 2000 (at Auckland)
Coram:	Thomas J Anderson J Robertson J
Appearances:	A G V Rogers for Appellant C B Cato and J L McClew for Crown
Judgment:	25 July 2000

judgment of the court DELIVERED BY THOMAS J

Introduction

[1] The appellant, Ms Edwards, was convicted following a trial before Judge and jury of one count of aggravated robbery for her part in an incident in Thames on 2 February 1999.On 16 February 2000 she was sentenced to five years imprisonment.Mrs Edwards has appealed against her conviction on a number of grounds.

Background

[2] The background to this case is somewhat unusual.The victim of the robbery, a Dr Harrison, was previously known to Mrs Edwards.In fact, in 1977 Dr Harrison delivered Mrs Edwards' child, Warwick Leek, her co-offender in this case.Mrs Edwards was at that stage experiencing a difficult time.Dr Harrison offered her kindness rarely shown to her by others, including her allegedly abusive husband.Between 1977 and 1981 she attended Dr Harrison for gynaecological treatment, often without a referral from a general practitioner. She wrote to him frequently on a personal level.Dr Harrison did not reply. She even obtained a position in Thames Hospital so as to be nearer to him.She would wait in the hospital library where the doctor went to do his research. She continually tried to engage him in conversation.Dr Harrison did not reciprocate.When Mrs Edwards started going to the church attended by Dr Harrison he and his wife felt compelled to leave.

[3] Mrs Edwards then moved to Mt Wellington in Auckland.She still continued to write to Dr Harrison, particularly following the death of his wife in 1995. She stated that she was a born-again Christian and wished to help him.Dr Harrison ceased to open her letters.Her fixation with him grew.Diary entries made by her in late 1998 and early 1999 show that she believed that it was God's will that she marry Dr Harrison, and that the time was drawing near. On two occasions just prior to the robbery, Mrs Edwards went down to Thames and, uninvited, visited the doctor's house.The first time she went with her son, Mr Leek.The second time she went alone.On this second visit Mrs Edwards announced that she loved Dr Harrison and expressed a desire for them to get together.On both occasions Dr Harrison refused her entry.

[4] On 2 February 1999, the night of the robbery, Dr Harrison had left his home at around 6:30pm to have dinner with friends.He returned around 10:30 p.m. His security lights had been triggered.When he entered his house he found two masked people inside.One, a male, had a baseball bat.The second person was a female.Dr Harrison ordered the intruders to leave.The male hit Dr Harrison's face with the bat.The blow smashed his glasses, lacerated his left eye and left him with a broken cheekbone.Only the male spoke.He demanded money, jewellery, credit cards and a mobile phone.Dr Harrison was led through the house and asked to identify valuables.The second person rummaged around, opening drawers in the bedroom and searching the house generally.At one stage Dr Harrison managed to run outside for help.As he ran down the drive he collided with a third person, also wearing a balaclava.Dr Harrison was caught by the male and taken back inside.He was made to lie face down on the floor. He was gagged, bound and threatened with being killed.The robbers eventually left and Dr Harrison managed to untie himself, escape to a neighbour's house, and call the police.

[5] Various items were stolen, including $2,400 in cash, a stereo system, a dehumidifier and a watch.Certain other documents were taken, including financial documents and a draft headstone document.

The evidence at trial

[6] Various witnesses gave evidence at the trial that a white Honda Civic belonging to Mrs Edwards had been seen at around 11pm near Dr Harrison's property.A police officer said that he saw two vehicles leaving Dr Harrison's property at around this time;one a white Japanese four door car and the other a red Honda Civic.The white car had two occupants and the red car the driver only.The officer stopped the red car, which then accelerated away.The police eventually caught it at around midnight.The car was identified as belonging to Dr Harrison and the driver was identified as Mr Leek.The white car was not found at that time.

[7] Mrs Edwards' fingerprints were found on the headstone document which was subsequently discovered abandoned at a nearby milk depot together with other documents belonging to the doctor.Dr Harrison's evidence was that the headstone document was lying on his desk before the robbery.Analysis of a pair of boots found at Mrs Edwards' house had blood on them which was highly likely to have come from Dr Harrison.

[8] Mr Leek pleaded guilty and was convicted of the aggravated robbery.Mrs Edwards pleaded not guilty.Mr Leek gave evidence at his mother's trial.He stated that he, his mother and his girlfriend Ms Haretuku, all went in Mrs Edwards' car to Dr Harrison's house with the intention of robbing it.He said that the original suggestion to do so came from Mrs Edwards.He stated that he and Mrs Edwards went inside and Ms Haretuku remained outside as a lookout.He deposed that Mrs Edwards' role was to help find valuables to steal while Mr Leek kept Dr Harrison subdued.He also testified that his mother was wearing the boots found at her house during the robbery.

[9] A police officer gave evidence to the effect that Mrs Edwards, prior to a formal video interview, had made various admissions, including a written statement. The essence of these admissions was that she knew her son planned to rob Dr Harrison and that they had driven, with Ms Haretuku, to Dr Harrison's house in her car.She then stated that she had waited outside and that it was Ms Haretuku who had gone inside with Mr Leek.She stated that it was she whom Dr Harrison had run into when he attempted to escape down the driveway.

[10] At the eleventh hour, Mrs Edwards elected to give evidence contrary to her counsel's advice.She conceded in evidence that she had attended the robbery, but denied that she went inside the property.She claimed that both she and Ms Haretuku had waited outside.She now agreed with Mr Leek's evidence that it was Ms Haretuku who Dr Harrison had run into and not her when he attempted to escape.She alleged that there must have been a fourth person involved, who went inside with Mr Leek, although she had not met this person and did not know his or her identity.Mrs Edwards denied that the boots were hers and said that they belonged to Ms Haretuku and had been handed to her after the robbery.She claimed they were too big to fit her.She also claimed to have taken the headstone documents from the letterbox, as she did not go inside.Finally, Mrs Edwards alleged that she and Ms Haretuku had been under duress from Mr Leek to participate in the crime.She had been too terrified of him to resist his directions.

Grounds of appeal

[11] The appellant has appealed against her conviction on four grounds:

(1) The trial judge in his summing up did not give an adequate direction on the common intention required for robbery in terms of R v Galey [1985] 1 NZLR 230 (CA).

(2) The conduct of the defence at trial resulted in a miscarriage of justice.

(3) The Crown failed to disclose the previous convictions affecting the credibility of all Crown witnesses.

(4) The trial judge failed to direct the jury on the need for care because of the failure of defence counsel to put material questions to prosecution witnesses.

[12] The appellant also applied for leave to introduce further evidence.

1. Summing up

[13] Section 235(1)(b) of the Crimes Act converts a robbery into an aggravated robbery where the accused:

(b) Being together with any other person or persons, robs, or assaults with intent to rob, any person;

[14] This Court in R v Galey, supra, discussed the correct interpretation of s 235(1) and paragraph (b) in particular, observing (at 233-234):

It is clear enough in relation to (a) and (c) that the legislature has taken as aggravating circumstances matters directly related to the degree or violence, or threats of violence, employed by the offender.We believe that the expression "being together with any other person or persons" should be construed as having a somewhat similar purpose, and therefore as intended to apply only in situations where the presence together is proved of two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crimes.(Emphasis added).

[15] The Judge's summing up on this point reads as follows:

To satisfy this element, the Crown must prove beyond reasonable doubt that at least two or more (and here they say two) were physically present when the robbery took place, and that they had a common intention or were part of a joint enterprise to use their combination together to commit the offence.It breaks down into two parts.Physically being together or proximate, and secondly that they had a common intention or part of a joint enterprise.

Now then, it behoves me to take that explanation a little further.Mere presence is insufficient.It is not a criminal offence under our law simply to stand by and be a mere passive spectator of a crime, even murder, however morally reprehensible you might consider that concept to be.Here, the essence is presence pursuant to a common design or a joint enterprise.So it is a physical presence with a state of mind.And so you are entitled to look, in deciding whether this element has been proved beyond reasonable doubt, at what happened at the time, what happened before, what happened after.You see the fact that a person was voluntarily and purposefully present, if you so find that to be the case, witnessing the commission of a crime, such as theft with violence or threats of violence, and here - and it is said to be the accused - she offered no opposition to it, though she might reasonably have been expected to prevent and have the power to do so, or at least to express her dissent, then that would be evidence upon which you would be justified in finding that she was party to a joint enterprise or part of a common intention to carry out the robbery.

As I have said, you are entitled to look at what happened beforehand in the hours, perhaps even days beforehand.The Crown rely on that statement made to Mr Jackson - of course denied by the accused - but as far back as that.What happened on the day; according to the Crown, going round picking up bits and pieces, setting off, (following the previous visit to Thames), on the Crown case, denied by the accused.What was said on the day, done on the day, and what happened at the scene, depending on your findings of fact, and what happened after.All those matters you are entitled to bring into the scales and to say to yourselves, depending of course whether you accept those pieces of evidence: has the Crown proved, beyond reasonable doubt, a physical presence of the accused, coupled with a common intention or being part of a joint enterprise to carry out the robbery?It can be put in this very simple way, ladies and gentlemen.Two words: intentional participation.If you remember that, that will help you grapple with this concept, because it is central to the case and it must be proved beyond reasonable doubt.

Now, that common intention, that joint enterprise, must be still operative at the time of the alleged robbery.

[16] Counsel for Mrs Edwards, Mr Rogers, submitted that the judge failed to direct the jury in terms of R v Galey that the Crown had to prove a common intention on the part of Mrs Edwards and Mr Leek to use their combined force directly in committing the robbery.Counsel for the Crown, Mr Cato, submitted that the direction given adequately conveyed the concept of combined force.We agree with Mr Cato.The trial Judge stated that the Crown were required to show that the two had "a common intention or were part of a joint enterprise to use their combination together to commit the offence".Although the Judge added that the jury might properly infer this common intention from evidence that she offered no opposition to Mr Leek's actions, the Judge also emphasised that the jury must be satisfied that Mrs Edwards intentionally participated in the robbery.He succinctly directed the jury:"It can be put in this very simple way, ... .Two words: intentional participation.If you remember that, that will help you to grapple with this concept, because it is central to the case and it must be proved beyond reasonable doubt".

[17] We consider that Mr Rogers tended to equate the word "force" in the dictum of R v Galey with actual violence.The dictum in that case requires only that there be a common intention by the co-offenders to use their combined force directly in the perpetration of the crime.It does not matter that no violence occurred or that no violence was necessarily intended.What is required for the purposes of R v Galey is that the co-offenders have combined for the purpose of committing the crime in question;in this case, the crime of aggravated robbery.

[18] On the facts Mrs Edwards' knowledge that her son, whom she accompanied in her car and into Dr Harrison's house for the purpose of robbing him, was armed with a baseball bat is sufficient to bring her within the dictum in R v Galey.The common intention of Mr Leek and Mrs Edwards was to use their combined force in carrying out that crime, although if required Mr Leek would be the one to yield the baseball bat against the doctor.

[19] We are therefore of the view that the trial Judge did not misdirect the jury and that there was, in any event, ample evidence that the dictum in R v Galey was satisfied sufficient to preclude a miscarriage of justice.

2. Conduct of the defence

[20] Mr Rogers advanced extensive argument in support of the submission that the conduct of the defence resulted in a miscarriage of justice.His criticism of trial counsel can be summarised under the following headings:

(a) Counsel inadequately failed to develop the argument that duress was relevant to Mrs Edwards' mens rea;

(b) Counsel inadequately failed to obtain a brief of evidence from Mrs Edwards;

(c) Counsel neglected to call good character evidence;

(d) Counsel did not adequately put Mrs Edwards' case in cross-examination;

(e) Counsel did not make sufficient enquires to obtain evidence supporting Mrs Edwards' case.

[21] Leave to adduce fresh evidence is sought in connection with ground (e).

[22] We turn first to ground (a).Mrs Edwards apparently indicated to her trial counsel that she wished to plead duress due to her fear of Mr Leek.She was advised that this was not possible as the relevant defence, compulsion under s 24 of the Crimes Act, does not apply to charges of aggravated robbery (see s 24(2)(ka)).Mr Rogers argued before us that the circumstances of duress can nevertheless exist so as to negative mens rea.In support, he cited Adams on Criminal Law, para CA 24.04.He argued that Mrs Edwards should have had the benefit of a defence that she did not form a "common intention" to commit the robbery with Mr Leek as her participation was wholly due to her abject fear of him.

[23] We believe that this argument is defeated on the facts.There is little, if any, evidence that Mrs Edwards was an unwilling participant in the events on 2 February.It was her, and not her son, who was obsessed with Dr Harrison. Even if it was her son's initiative to rob the doctor (his evidence was that it was Mrs Edwards' idea) and he enlisted her help, there is no indication that she did not act purposefully in helping him.Mrs Edwards was charged with aggravated robbery, not with being a party to injuring Dr Harrison, and her mens rea therefore relates to forming a common intention with her son to rob Dr Harrison, not to injure him. But as she knew her son had a baseball bat, it can be fairly inferred that she was aware the robbery would involve, at least, the threat of violence.

[24] All the evidence therefore points to Mrs Edwards having formed an independent intention to participate in the aggravated robbery.As she denied entering the house altogether, however, any fear which she had of her son must be related to her actions in selling the stolen goods.Yet, Mr Leek was in custody at that time.In all, the jury were entitled to infer that, contrary to her evidence, she entered the house and was an active participant in the robbery.We are satisfied that she acted purposefully and intentionally, fully aware as to what she was doing.

[25] For these reasons, this Court does not accept that trial counsel's failure to mount this argument has led to a substantial miscarriage of justice.It would not have succeeded on the facts.

[26] The next submission for Mrs Edwards was that defence counsel should have obtained a brief of evidence from his client.Of course, this is an advisable step, but it is not a mandatory requirement.In some cases it will be difficult.The crucial question in this case is whether counsel took reasonable steps to ascertain Mrs Edwards' response to the Crown's case and afford her the opportunity of answering matters relevant to her defence.We are satisfied on the evidence available to us that he did so and, indeed, that he did so in a thorough and professional manner.No mistake or blunder is involved which remotely falls within the criteria laid down in R v Pointon [1985] 1 NZLR 109 and R v H [1997] 1 NZLR 673.

[27] Nor do we regard trial counsel's decision not to call good character evidence as a mistake.This decision was a matter of judgment and there were good reasons for not adducing such evidence.It could well have proved counter-productive.Certainly, we take Mr Rodger's point that it was desirable to show that Mrs Edwards was not of the same criminal and violent bent as her son and the good character evidence would have at least adduced the fact that she had no previous convictions.But this was not a case where Mrs Edwards was being cast as a determined criminal.She was associated with the crime because of her prior obsessional behaviour relating to Dr Harrison.Having regard to her history of involvement with the doctor, her prior contact with the police relating to that involvement, and her admission that she had participated in the robbery to the extent outlined in her evidence at trial, we doubt that character evidence would have had any significant impact on the course of the trial.

[28] Next, it was submitted that defence counsel failed to adequately put Mrs Edwards' case in cross-examination.The main example given is his failure to counter an assertion by Mr Leek that he was not a violent man with a 60 Minutes documentary in which Mr Leek was interviewed and "boasted" of beating a young woman.It is also alleged that counsel failed to confront Mr Leek with a list of his previous convictions.In his response, trial counsel contended that he was alert to the fact that Mr Leek was his client's son and for this reason did not want to exacerbate the jury's unfavourable impression of him.

[29] We consider that any flaws in counsel's cross-examination were not central to Mrs Edwards' case.We do not view them as radical errors.

[30] Finally, Mr Rogers submitted that defence counsel did not make sufficient enquiries into Mrs Edwards' case.She now wishes to call fresh evidence from various witnesses.We have looked at the affidavits of the witnesses Mrs Edwards now wishes to call.The only one we see as having any merit is that of Mr Malcolm of E R & D M Malcolm, monumental masons, Hikitai.Mr Malcolm delivered the headstone documents into Dr Harrison's letterbox on the day of the robbery.They were not in an envelope but were simply folded.This evidence, it was claimed, supports Mrs Edwards' account as to how she came to have her fingerprints on these documents.

[31] At first glance the evidence might be thought to corroborate Mrs Edwards' evidence as against that of her son, but it cannot withstand closer scrutiny. The headstone document was not the only document belonging to Dr Harrison found discarded at the milk depot.Yet, the other documents undoubtedly came from within the doctor's house.Moreover, Mrs Edwards' version of what happened cannot account for the fact that Dr Harrison obviously saw the headstone document.It is inconceivable that he uplifted it from his letterbox, inspected it, and then replaced it back in the letterbox.Consequently, on examination this new evidence loses much of its cogency and force.The headstone document was delivered early in the morning and the robbery did not take place until late that night.The necessary inference is that it was removed from Dr Harrison's desk, as he said in evidence, and together with the other stolen documents taken from the house and eventually deposited at the milk depot.

[32] We would note before leaving this point that Mrs Edwards was a difficult client.She vacillated about whether to plead guilty or not guilty heading into her trial.She initially elected not to call evidence but on the evening after her counsel had communicated this decision to the Court and was preparing to close his case, she changed her mind.Counsel was then forced, at 9 o'clock the night before, to prepare her examination in chief.He also had to seek leave to call evidence the next day.It was prudent of counsel to retain written records of these conflicting instructions.He repeats in his affidavit that Mrs Edwards consistently refused to accept "unpalatable" advice.We have concluded that far from being defective, defence counsel's conduct of Mrs Edwards' defence was of a high standard, particularly having regard to the difficulties he confronted with his client.She was well-represented and has no valid cause for complaint.

3. Crown disclosure

[33] Mr Rogers submitted that the Crown failed to disclose to the defence the previous convictions of a number of Crown witnesses.The prosecutor at the trial has filed an affidavit averring that he has no recollection of making any decisions as to the disclosure of these witnesses' previous convictions.He suggests that the reason for this oversight was because "the witnesses importance in the trial was not great".We have read their evidence and agree. The witnesses referred to played only minor roles in the trial.We see no merit in this ground and do not believe that it led to a miscarriage of justice.

4. Lack of direction on need for care

[34] As a final ground Mr Rogers argued that, in view of the defence's failure to put material questions to prosecution witnesses, a special direction from the Judge was required instructing the jury to take special care in considering the Crown evidence.As we take the view that no significant omissions were made at trial, a special direction was not required.Moreover, any such direction would have been adverse to Mrs Edwards.Obviously, its omission would not have caused a miscarriage of justice.

Conclusion

[35] For the reasons given above the appeal against conviction is dismissed. The motion for leave to adduce fresh evidence is also dismissed.

Solicitors

Crown Solicitor, Auckland for Crown