THE QUEEN v MICHAEL GEORGE MOORE [2000] NZCA 141 (27 July 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 159/00 CA 160/00

THE QUEEN

V

MICHAEL GEORGE MOORE

COLIN GARY MOORE

Hearing:	27 July 2000 (at Auckland)
Coram:	Thomas J Anderson J Robertson J
Appearances:	D P H Jones for both Appellants C B Cato for Crown
Judgment:	27 July 2000

judgment of the court DELIVERED BY ROBERTSON J

[1] This is an appeal against convictions entered in the District Court at Auckland against two appellants following a jury trial at which they were each found guilty of two joint charges, namely :

[a] That both of them together with a person unknown, on or about 21 February 1998, at Auckland, with intent to facilitate the commission of a crime, injured Sergio Antonio Arellano;and

[b] That the two of them together with a person unknown, on the same date, attempted to detain Sergio Antonio Arellano without his consent with intent to cause him to be confined.

[2] The appeal was not filed within the requisite time largely because new counsel have been instructed since trial.No objection to leave being granted was raised by the Crown and we were satisfied that the interests of justice required that the appeal should be heard and leave was accordingly granted.

[3] The appeal was advanced on two broad grounds :

[a] The verdict of the jury was unreasonable and/or could not be supported on the evidence;and

[b] There was a miscarriage of justice in that :

[i] The number of interruptions in the trial for legal argument created a climate that potentially unsettled and prejudiced the jury against the appellants.

[ii] Inadmissible evidence of a fingerprint of the appellant Colin Moore found on a cigarette packet wrapper was referred to during the trial and was in the jury's mind during their deliberations.

[4] There seems to be no question but that on 21 February 1998 the two crimes alleged were committed on Mr Arellano.The sole issue at trial was the identity of his assailants.

[5] Neither in his written submissions nor in his oral presentation did Mr Jones (who was not counsel at trial) strenuously advance the first identified ground of appeal.That is not surprising.There was ample evidence from Mr Arellano from which the jury were entitled to conclude that the two appellants were among his assailants.Despite the sustained and trenchant criticisms and attacks which were made upon the credibility of the complainant the question of identity remained a jury issue.The complainant was not shifted on his essential testimony.He proffered explanations for his change of stance.Many extreme allegations and assertions put to him were denied and remained without any evidential foundation.This case does not fall within that extraordinarily narrow compass where an assessment of quality of evidence could justify intervention and that ground of appeal cannot succeed.

[6] Nor are we attracted by the first aspect of the miscarriage of justice ground which related to the number of occasions in which the jury were excluded from the trial during the hearing.The assertion that the jury as a result was unsettled and prejudiced against the appellants is purely speculative.We acknowledge that in the course of this trial there were some interruptions. It appears that some may have been avoided by more attention to detail prior to trial and in large part by a s 344 application before the hearing began.

[7] The major interruption to the Court hearing arose because of the discovery that the cellophane from around a Winfield cigarette package which was said to have on it the fingerprint of the appellant Colin Moore was missing.The fact that it was missing should have been discovered before the trial commenced. Many of the problems which plagued this case would have been avoided with more careful attention to detail during a timely preparation for hearing.

[8] The sad reality is that in too many criminal trials issues do arise which lead to interruptions.No doubt they are frustrating and annoying from a jury's point of view and do not reflect well on the operation of the system. But they are not a basis for granting a new trial.Juries are traditionally advised of the division of labour between Judge and jury.It is explained to them that there will be times when the Judge will be dealing with parts of the trial in their absence because there are matters which do not relate to their function in the trial.Often they are reminded that as the jury they will deliberate and reach their verdicts without the Judge being in the jury room. The fact that for whatever reason this trial is not an example of best practice does not provide a base justifying the convictions being vacated and a new trial ordered.

[9] The matter which requires more consideration is the issue relating to the cellophane from around the cigarette package.This must be seen within the evidential context of the trial generally.

[10] Mr Arellano was attacked in his home on the afternoon of Saturday 21 February 1998.As previously noted there was overwhelming evidence that the attack had occurred and there had been an attempt to detain him. None of that was seriously in dispute.

[11] Although Mr Arellano was adamant about his identifications a number of matters were raised in the course of the hearing which at least challenged the evidence which he had given.It was accepted that he told the first constable who arrived at the scene that the reason for the attack was connected with his having been a witness to a service station robbery in Ponsonby.At trial the complainant said that that statement to the police had been false. He had said something similar to a woman to whom he spoke to shortly after the incident occurred and he had also told her that he did not know who had attacked him.

[12] Much was made of differences between the initial descriptions which he gave to the police about the people who had attacked him.There was also a prolonged attack about the fact that a number of drawings which he had made after the incident were no longer available.

[13] There was very lengthy cross-examination of him on his general credibility and reliability and reference to a number of previous incidents.All of that was of course simply matters to be weighed and assessed by the jury within the context of this case in which neither accused gave evidence and neither provided any out of court explanation with regard to their position.They were not obliged to do so and there was absolutely no onus upon them, but when testing the reliability and credibility of sworn testimony given in Court, the fact that there is not evidence which contradicts it is a matter which can properly be weighed.

[14] Within that context it is not therefore surprising to learn that the Crown at trial began by placing considerable reliance on evidence given at depositions.There was a fingerprint of the appellant Colin Moore on a cellophane wrapping on a packet of Winfield cigarettes which was located at the complainant's address.This evidence was seen to be of critical importance because there was nothing to suggest that Colin Moore had ever been to the complainant's address either as an invited guest or otherwise on any other occasion and therefore the likelihood that this confirmed that he had been there on the day of the attack was high.This could be seen as valuable corroboration of the complainant's evidence of the presence of Colin Moore at his flat and by association the presence of his brother Michael Moore also in an adversarial capacity.

[15] The Crown opened its case on the basis that such evidence would be adduced.We do not doubt that the significance of this evidence would have been fully explained with suitable emphasis.

[16] At trial the cigarette packet was produced at the beginning of the hearing and remained throughout as an exhibit.

[17] The cigarette packet featured in various photographs which remained with the jury throughout the trial.

[18] In the evidence in chief of the complainant he was specifically asked whether he smoked Winfield cigarettes which he denied.

[19] On the second day of the trial it became apparent that the cellophane on which the fingerprint was alleged to have been found could not be located. The Court was advised of the situation and a challenge to the fingerprint evidence was intimated.

[20] There was a voir dire which took a large part of the rest of the week. Eventually on Friday 1 October the Judge ruled that the evidence of the fingerprint was inadmissible.The Judge indicated that if called upon and if ultimately necessary he would give a reserved and reasoned decision but that does not appear to have occurred.The basis upon which this evidence was excluded is not apparent to us.On its face evidence about the wrapper and the fingerprint upon it could be given under the best evidence rule but it was excluded and its exclusion is the basis upon which the trial was conducted.It is accordingly the basis upon which this aspect of the appeal should be considered.

[21] It was agreed between the Court and counsel that thereafter in the trial no reference would be made to the fingerprint evidence and the cigarette packet would simply not be given to the jury when they retired to consider their verdict.

[22] That course of action was followed.Notwithstanding just 25 minutes after retiring to consider their verdicts the jury asked a question which was as follows :

Did the packet of Winfield cigarettes have a fingerprint of one of the accused? Why has this exhibit been withdrawn?

[23] The answer given was recorded but the tape is not available.We are told that the Judge indicated to the jury that there was no evidence before them relating to the cigarette packet or the fingerprint and they should put the matter out of their minds in as far as their deliberations were concerned. That was at 10.20 am.The jury returned with verdicts of guilty on all four counts at 3 pm that afternoon.

[24] It is now submitted that notwithstanding all that had happened it is clear that the issue of the fingerprint was still in the jury's mind and it is to be assumed having an influence or effect on their deliberations.Mr Jones accepts that the trial Judge had been an experienced trial lawyer and was an experienced trial Judge and that the appellants' senior counsel was a leader and that a decision having been taken to proceed with the trial once these problems arose, it is not necessarily open to the appellants to complain simply because they are unhappy about the outcome.

[25] That is undoubtedly a powerful factor, but it is not the sole test.The question is whether when viewed objectively the trial process was fundamentally flawed.See R v Morris (CA 89/98, 11 November 1998).

[26] In support of his contention Mr Jones has referred to somewhat unusual comments made by the Judge at sentencing when he said :

The neighbours who interrupted this incident did not give evidence identifying either of you as persons they saw leaving.There was no admissible corroborative evidence against either of you.I mention this because there was evidence at depositions of a fingerprint identified as that of Mr Colin Moore on a cigarette packet recovered.During the course of the trial it became an issue.I ruled the evidence inadmissible.However, quite properly, the Crown had opening (sic) to the jury on it.I discussed the problem with counsel.It was agreed that the trial should continue notwithstanding the prosecutor had mentioned it in his opening.Given the length of the trial and the stage we were at, at that point, in my view that was probably a reasonable approach.Upon reflection and with hindsight, which is always a valuable tool, I now consider I may have erred and should have aborted the trial.I say that because it is not without some significance that during the course of the jury's deliberation a question was raised by them as to the evidence relating to the fingerprint.Clearly they had remembered it.Nevertheless, you both had the benefit of a very strong closing address by your counsel on issues relating to identity.The jury were entitled having heard that and my directions on the law as to identity, to be satisfied that you were two of the person's involved.

[27] As noted by this Court in Morris :

The question is whether there is a real risk that the appellant did not receive a fair trial.

[28] In a situation where identification was the only issue, and that identification was virtually wholly reliant on the evidence of the complainant who had been subject to substantial attack and at least made some acknowledgement of unreliability, the fact that the trial Judge at sentencing considered it necessary or appropriate to express some view about this cannot be ignored.The Judge said :

In the event this matter is considered by another Court, I record my views of the witness Arellano.I found him in many respects totally unreliable, unconvincing and lacking in credibility.Of course, the jury were entitled to accept part of what a witness says and reject other parts.In this case they must have been satisfied insofar as Arellano's identity of you two were concerned, he was correct.

[29] The Judge's comments on such an aspect of the trial in the course of sentencing the appellants were inappropriate.The Judge was bound by the jury's verdicts and his comments could only cause doubt on them.This Court is now faced with a situation in which the trial Judge has effectively said that the trial was unfair.That being the case it makes it difficult to hold that justice will appear to be done if the Court does not allow the appeal and direct a new trial.

[30] It is impossible to minimise the importance and impact which this fingerprint could have had.It could be silent but extraordinarily influential corroborative material of the allegation being made by Mr Arellano.If there was no other explanation as to a circumstance in which this fingerprint could have got to the scene, the potency of this evidence was enormous.

[31] In the circumstances of the case (and notwithstanding the fact that no objection was taken at the time for what were seen by the appellants as tactical advantage) we are of the view that the perception that the system failed to provide those hallmarks of integrity and reliability which are at the heart of the criminal justice system may not have been delivered does exist. Accordingly in the interests of justice it is essential that the convictions be vacated and that there be a new trial.

[32] All issues will of course be at large.On a proper s 344 application the question of the admissibility of the fingerprint evidence can be determined ahead of trial.

[33] Any other issues which need attention can similarly be dealt with so that when the matter returns before a Judge and jury the matter can proceed without interruption or digression in a seemly and professional way.

[34] The appeals are accordingly allowed.The convictions are quashed and the appellants are remanded for re-trial in the District Court at the earliest opportunity.The rehearing of these matters should be given substantial priority in light of the fact that it is now almost 2½ years since the event.

Solicitors:

Allan Jones, Devonport

Crown Solicitor, Auckland