THE QUEEN v SHAUN MORGAN HARTLEY [2002] NZCA 96 (9 May 2002)

IN THE court of appeal of new zealand

ca6/02 CA112/02

THE QUEEN

V

SHAUN MORGAN HARTLEY

BARRY PETER GARDINER

Hearing:	2 May 2002
Coram:	Gault J Blanchard J Anderson J
Appearances:	V C Nisbet and D Lahood for Hartley S N Hewson for Gardiner S P France for Crown
Judgment:	9 May 2002

judgment of the court delivered by blanchard j

[1] Shaun Hartley and Barry Gardiner appeal against their convictions for the attempted murder of Brendan Nuku on 5 January 2001 and sentences of 12 years and 9 years imprisonment respectively imposed upon them for that crime.A third man, Robert Albert, was also convicted of the attempted murder of Mr Nuku and received a 12 year sentence but no appeal from him is before us.Mr Hartley has lodged an appeal also against convictions and sentences, cumulatively imposed, for a total of another three years for the arson of Mr Nuku's house on 22 July 2000, for wilfully damaging Mr Nuku's motor vehicle on 24 August 2000 and for attempting to commit arson on the house of Mr Nuku's father on the same date.No submissions were made in support of the appeal against these additional convictions, argument relating to them being confined to the question of the appropriate sentences.

[2] The offending all took place in Levin and all incidents were apparently gang related.Mr Hartley and Mr Albert are members of the Levin Louts and Mr Gardiner, although evidently not a member of the gang, has some association with the co-offenders.Mr Nuku was involved with another gang.

[3] On 18 July 2000 there had been an initial attempt to kill Mr Nuku when a group of men went to his home and he was struck in the face by a bullet fired from a pistol.By good fortune he was not seriously injured.Convictions for attempted murder resulted from that incident, two men being sentenced to ten years imprisonment.

[4] Then followed the damaging of the house by a fire started by Mr Hartley and other unknown persons and the damaging of Mr Nuku's motor vehicle when Mr Hartley and others threw Molotov cocktails at it and at the home of Mr Nuku's father, which fortunately did not catch fire.During this second incident Mr Hartley fired a shotgun at Mr Nuku's vehicle and at nearby buildings.

[5] On 5 January 2001 Mr Nuku was helping two friends move house to an address in Sussex Street, Levin.A black utility vehicle twice drove past at slow speed.Witnesses, including Mr Nuku, identified two of the three occupants of the utility as Mr Hartley and Mr Albert.But Mr Nuku, and two other persons who encountered the utility in central Levin, thought that the third occupant was a woman called Angela Jager who was Mr Hartley's partner at that time.Mr Hartley was the owner of a black utility vehicle.

[6] Not long afterwards a stolen silver grey Honda Civic hatchback approached the Sussex Street house.Mr Nuku was outside.Two shots were fired at him. The first nicked or grazed his head.The second hit him in the back, causing a very severe injury from which he nearly died and rendering him a paraplegic. Mr Nuku has little memory of this event but one of the men he was helping, Mr Wehipeihana, gave evidence in which he said he saw the person who fired at Mr Nuku from the passenger's seat.He said that person had been wearing a pompon hat.When shown a photomontage by the police he had identified a photograph of Mr Hartley.Mr Wehipeihana saw only two occupants of the Honda Civic. Another motorist in Sussex Street also saw only two occupants.But a resident of the street, who was close enough to hear the gunshots, saw three persons, one being in the back seat.Shortly afterwards, two other people saw the car travelling at high speed and said it had three occupants.One of those observers thought they were three males wearing balaclavas or hats.The other said the driver was wearing a balaclava.The Honda Civic was later found burnt out at Hokio Beach about ten minutes drive from Levin.

[7] The key prosecution witness was Angela Jager who had, in circumstances which will be mentioned, cooperated with the police and had, as the jury was made aware, been granted immunity from prosecution.

[8] In her evidence in chief, she described hearing a conversation in about November 2000 between the three defendants in which they planned to kill Mr Nuku by shooting him and to use a stolen car which would be stored in Mr Gardiner's shed.On the evening of 3 January she and the three defendants had driven out to a property at Hokio Beach in her red Honda Civic.In a shed on the property there was a stolen silver-grey Honda Civic.Both cars were driven back to Levin.She and Mr Hartley were in the red car and Mr Albert and Mr Gardiner in the stolen car, which was taken to Mr Gardiner's house and driven into his shed.

[9] On the morning of 5 January Mr Hartley had driven the witness to her mother's home in Mr Hartley's black utility.She and her mother both gave evidence that they spent the day together, although there was a significant discrepancy in their accounts, the mother saying that they went to the Tender Centre (a second-hand store) in Levin and Ms Jager saying that they went to Palmerston North.Ms Jager returned home about 5pm.Between 6.30pm and 7.00pm Mr Gardiner came to her home driving the black utility and knocked on the door.He "told me that the job was done".She asked him where Mr Hartley was and Mr Gardiner said he was "out".She knew that Mr Hartley had been intending to stay at the property at Hokio Beach.Mr Gardiner then left on his bicycle.

[10] Ms Jager spent that night at the home of her brother in Levin and the next day she went with her mother to Palmerston North to Ms Jager's sister's home. The following day, 7 January, Mr Hartley and Mr Albert arrived in Palmerston North and the three of them drove back to Levin.During the journey Mr Hartley told her that he had "got" Mr Nuku.After they dropped off Mr Albert and were back at their home Mr Hartley said that he had shot at Mr Nuku.He thought "the first one missed but the second one got him in the back".This had happened in Sussex Street.They had been driving in that street in the black utility and had seen Mr Nuku's vehicle.Mr Hartley had gone and got the stolen vehicle "and went and done what he did".He had said that he had burnt the stolen car at Hokio Beach and had "walked home".Mr Hartley had also described the clothes that he had been wearing, which included a balaclava.

[11] In her evidence Ms Jager also told of seeing Mr Hartley and Mr Albert with two firearms about ten days before the shooting.One was a sawn-off shotgun. She also saw some home-made "bullets" Mr Hartley was making for the shotgun using ball-bearings.

[12] Mr Hartley was arrested on 7 January 2001.On 17 January, after Ms Jager had had several interviews with the police and had agreed to cooperate with them, she asked to see Mr Hartley who was at the Levin Police Station.The police would allow her to do this only if they could have her agreement to record her conversation with Mr Hartley.She was willing to allow this and a short conversation took place during which, it appears, nothing inculpatory was said by Mr Hartley.But during that conversation Mr Hartley asked her to visit him in prison and she agreed to do so.

[13] A week later the police arranged for her to visit Mr Hartley in Linton prison.She was willing to wear a "wire" to enable the conversation to be recorded.A police officer took her to and from the prison.A conversation occurred between Ms Jager and Mr Hartley lasting about an hour. However, the police had overlooked reg.92 of the Penal Institutions Regulations 2000 which prohibits the recording of a visit to a prison inmate without the consents of the inmate and the prison superintendent, neither of which had been obtained. The trial Judge ruled that the evidence of what transpired during the prison conversation could not be led by use of the recording.But, as it was accepted as being an accurate record, the Judge said it would be available "not by way of an exhibit for the jury but by way of an evidentiary aid before the Court upon which the parties to the trial can rely should either [Ms Jager] or the accused Hartley give evidence contrary to the truth of their conversation as recorded".

[14] Ms Jager accordingly gave oral evidence about the content of the prison conversation.She said Mr Hartley told her to keep her mouth shut and said

*"they" had driven around in the black utility looking for Mr Nuku wearing balaclavas; and when Mr Nuku was seen Mr Hartley had gone and got the silver Honda Civic.

* there had been two shots using big "bullets".One had skimmed Mr Nuku across the head and one got him in the back.

* Mr Wehipeihana and a Mr Goldsbury (the second person Mr Nuku was helping) might be witnesses to the shooting.

* he had stayed "at Paul's" [the Hokio Beach address] on the night of 5 January and had buried the firearms there.

[15] The recording was not put in evidence.The jury was told of its existence and that the transcript was an "aide memoir" for counsel should there be any questions about what was recorded.

Conviction appeal - Mr Hartley

[16] The only ground of appeal was that the evidence of Ms Jager concerning her conversations with Mr Hartley at the Levin Police Station and Linton Prison was inadmissible because it had been obtained in breach of Mr Hartley's rights guaranteed by the New Zealand Bill of Rights Act 1990 to refrain from making a statement (s23(4)) and not to be compelled to be a witness or to confess guilt (s25(d)).Other provisions of the Bill of Rights were mentioned but the argument was directed to these rights only.It was said that such significant admissions had been made in the conversations that, if the evidence had not been before the jury, a conviction might not have resulted and that accordingly there had been a miscarriage of justice.

[17] The trial Judge had referred to this Court's decision in R v Barlow (1995) 14 CRNZ 9 and said that the evidence of the recipient of a conversation with an accused will be admissible unless the recipient is a police agent and has unfairly elicited the particular information from the accused.It was accepted by the Crown that Ms Jager was for present purposes a police agent. Mr Nisbet submitted to us that the Judge had wrongly determined that nonetheless her evidence of the conversations was admissible.The Judge had said that she had not been given any direction at all by the police as to what she should say to Mr Hartley.She had not been asked to elicit information and was merely told "to just talk with Hartley as she would normally do".

[18] In his oral argument, Mr Nisbet concentrated on what he said was the special nature of the relationship between Ms Jager and the accused, as the accused believed it to be, and the way in which the police had subverted it. Mr Nisbet noted that defacto relationships have now been given a recognition, similar to that of marriage, under the Property (Relationships) Amendment Act 2001.It was submitted that Ms Jager had exploited her "special relationship" - a relationship of trust - with Mr Hartley by agreeing to obtain evidence that she knew would effectively get her "off the hook" in circumstances where she knew that Mr Hartley would believe that the contents of their conversation would remain confidential.The police had exploited and manipulated the relationship by placing pressure on her and by telling her that Mr Hartley had been seeing an ex-girlfriend.While the contents of the prison conversation might not suggest any direct eliciting of particular information, there had been an eliciting arising out of the exploitation by the police and the witness of the special relationship with Mr Hartley. In the circumstances there was a causal link between the conduct of Ms Jager as a state agent and the making of the statements by the accused.

[19] Mr Nisbet accepted that a good deal of what had been said in the prison conversation was merely a repetition of statements Ms Jager said Mr Hartley had already made to her prior to his arrest when she was certainly not acting as a police agent.But counsel said that the prison conversation unfairly reinforced that evidence and that it had been difficult to cross-examine on the alleged earlier statements because of the existence of the recording of the prison conversation to the same effect.

[20] For the Crown, Mr France submitted that there was no evidential foundation to put a Bill of Rights challenge seriously in issue.The witness had initiated the first visit.Mr Hartley had initiated the second.The police had not spoken to Ms Jager at all about the content or direction that the conversations might take.There was no complaint made that she did or said anything during the conversations that could come within the concept of eliciting information.Mr Hartley had not testified or made any suggestion that the conversations would not have occurred but for the witness's actions. Mr France submitted that it was not enough to establish a breach of the right to silence by simply pointing to the characteristic that Ms Jager was the girlfriend/defacto partner of Mr Hartley.Whilst that was relevant, the significance that the characteristic played in the conversation could fall to be determined only by reference to what actually occurred, which did not involve exploitation, for the reasons already given.

[21] We are satisfied that there is no substance in the argument made on behalf of Mr Hartley.Furthermore, even if there had been and if the evidence concerning the recorded conversations should not have been admitted, there would have been no miscarriage of justice resulting from admission of that evidence.The overall case against Mr Hartley without that evidence was strong.The most damaging of the admissions to Ms Jager during the prison conversation were merely a repetition of what she said he had already told her before his arrest when it could not possibly be suggested that she was acting as an agent of the police.

[22] It is not in dispute that, at the time of the conversations in question, Ms Jager was acting at the behest of the police in having them recorded.But she herself initiated the visit to Mr Hartley at the police station and her visit to him in prison was at his request made during the police station visit. She had agreed to Mr Hartley's wish to see him at the prison and had told the police about it.(They would have been aware of it in any event from the recording.)The visit, which might not otherwise have been permitted, was facilitated by the police on condition that she would wear a recording device. But the police did not ask Ms Jager to obtain information about the offending or suggest to her that she ask questions of Mr Hartley.The police assisted in creating an opportunity for Mr Hartley to make disclosures, but neither they nor Ms Jager can fairly be said to have elicited information.In this respect the position is similar to that in R v Liew (1999) 137 CCC (3d) 353 where the Supreme Court of Canada found that no Charter breach of the right to silence occurred where admissions were made to an undercover police officer during a conversation with the accused in a police interview room in circumstances where the accused, who was under arrest, believed that the undercover officer was a co-offender.It was held that the conduct of the officer was not the functional equivalent of an interrogation. The judgment of the majority delivered by Major J said (at p367):

It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the appellant were not actively elicited or the result of interrogation.

[23] Although there may have been a relationship of trust in this case, not present in Liew, one spouse or de facto partner has no assurance in law of confidentiality concerning what is voluntarily disclosed, i.e. without active solicitation by questioning, to the other about criminal activities. Disclosure of such matters is in such circumstances the choice of the suspected person who takes the risk that the recipient may tell the police.Mr Hartley was well aware of the risk.He told Ms Jager to keep her mouth shut.But she was not obliged to do so when the subject matter of the conversation was his criminal offending.If Ms Jager had not been cooperating with the police at the time, but had decided to tell them after disclosures of criminality were volunteered to her, the existence of the domestic relationship would have provided no basis for objecting to the admissibility of her evidence.The fact that she was acting as a police agent and her motivation for doing so can make no difference where she did not actively elicit information.She did not interrogate Mr Hartley.She cannot be said to have exploited the relationship to extract information or to have manipulated the appellant so that he failed to remain silent about his offending and made a confession of his guilt.In fact, the power balance between this gang leader and his partner seems, as one would expect, to have been the other way round.

[24] Mr Nisbet may have felt inhibited in cross-examining Ms Jager about the conversation she had with Mr Hartley before his arrest because of the similarity of its content with that of the prison conversation, but that was because he was aware from the recording of the truth of what Ms Jager was narrating in relation to the latter conversation.This ethical inhibition can hardly be a basis for seeking exclusion, and, to be fair, Mr Nisbet did not press the point.

Conviction appeal - Mr Gardiner

[25] The single ground of appeal is that the guilty verdict was unreasonable and cannot be supported by the evidence.It can be accepted that that might have been the position but for the evidence of Ms Jager.It is obvious, however, as Mr Hewson conceded, that, if the jury was entitled to accept the evidence she gave relating to Mr Gardiner, the verdict could not be challenged on this ground.The thrust of Mr Gardiner's appeal was that under cross-examination Ms Jager was said to have retracted her evidence in chief implicating Mr Gardiner.Counsel referred us in particular to his cross-examination directed to a statement of Ms Jager to the police on 17 January 2001.She was questioned by Mr Hewson about this statement but it was not shown to her, nor did it become an exhibit for the jury.

[26] Counsel had sought the witness's confirmation that in the police statement she had indicated that she had not been telling the police the whole truth before, but would now do so.The witness accepted this and was then asked by counsel "And you did?", to which she replied "Yes".She was then asked about Mr Gardiner coming to her home on the evening of 5 January.She agreed that in her statement of 17 January she had not mentioned his saying to her "anything about the job's done".She agreed also that she had not on 17 January told the police anything about her involvement with the shifting of the silver vehicle on 3 January or about it being stored at Mr Gardiner's house.

[27] There was then the following exchange:

You really didn't shift that vehicle or help shift that vehicle on 3 January? No

[His Honour: Which vehicle] the silver vehicle the stolen one you didn't shift it did you? No

So what you said on 17^th was correct? Yes

[28] Later in the cross-examination she agreed that in her deposition statement she had told the truth.The examination then closed with the following:

And you confirmed that on the 5^th November you had no prior knowledge that Brendon was going to be shot? 5^th November 5^th January sorry the day of the shooting?Yeh I didn't know

[29] This was said by Mr Hewson to amount to a retraction of the evidence about Mr Gardiner in the examination in chief.

[30] Mr France's response to this argument was that the way in which the questions in cross-examination had been put to the witness was indirect and that accordingly she should not be taken by her responses to have been resiling from her evidence in chief in its essentials; and that, in any event, the main points in that evidence had not been questioned, for example, the fact that there had been a visit by Mr Gardiner to the house on the evening of 5 January when he brought back the black utility vehicle.Mr France said that this method of cross-examination did not allow of an argument on appeal that there was an insufficiency of evidence from Ms Jager on the basis of which, along with the other evidence, there could be a guilty verdict.This line of cross-examination could do no more than raise for the jury questions about the credibility of the witness, which was of course very much a jury matter.It had been open to the jury, despite the answers in cross-examination, to accept Ms Jager's evidence in chief.

[31] We agree with Mr France.In his cross-examination Mr Hewson was obliged, because of the content of the statement concerning his client, to walk a very fine line.He put to the witness certain discrepancies between her statement and her evidence in chief, which she accepted.But it is not clear to us from a reading of the evidence that she was necessarily accepting more, in some respects, than that she had indeed said certain things in her statement.For instance, she agreed that she had not mentioned what Mr Gardiner had said about the job being done.But it was never directly put to her that Mr Gardiner had not on that occasion made such a statement.Thus her evidence in chief on that point was not contradicted.At most, because she had not mentioned that matter to the police on 17 January, there was a credibility issue for the jury to determine.There was a lack of clarity also about the responses relating to the shifting of the silver vehicle.The witness could properly have taken the questions as being directed to whether she drove the silver vehicle or was a passenger in it.She may not have understood Mr Hewson's reference to helping shift the vehicle as encompassing merely driving Mr Hartley to and from Mr Gardiner's house.Bearing in mind particularly that she did not have the statement before her, the question which followed, in which she confirmed that what she said on 17 January was correct, was of little value without its being related to a specific matter in that statement.

[32] Because the witness was not directly asked about the truthfulness of her evidence in chief it does not seem to us that she can fairly be taken to have resiled from that evidence in its essential respects.It was well open to the jury to conclude that she had not done so or that, if she might have done so, nevertheless the evidence in chief was more reliable and should be accepted.

[33] Mr Hewson endeavoured to make something of a passage in the cross-examination relating to the visit of Mr Gardiner on 5 January in which the witness had agreed with him that there had been a short conversation and Mr Gardiner left, that she had asked where Mr Hartley was, to which Mr Gardiner had said "out", and there was then the following question and answer:

That was really it wasn't it?Yes

Mr Hewson suggested that this constituted a retraction of the evidence in chief that Mr Gardiner had said that "the job was done".Once again, however, it was never directly put to Ms Jager in cross-examination that Mr Gardiner had not said any such thing.In our view, the jury could reasonably conclude, as indeed we ourselves do, that the witness was not departing from this important element of her evidence in chief.One can understand counsel's reluctance to put such a crucial question directly to the witness.That is an understandable tactic in front of a jury but the absence of direct questions is distinctly unhelpful when an attempt is made to appeal the jury's verdict.

The sentence appeals

[34] Mr Hartley's appeal against his effective 15 year sentence was based in part on a comparison with ten year sentences handed down to two of the offenders in the first attempt to murder Mr Nuku (upheld by this Court in R v Hopa and Climie, 18 December 2001, CA301/01 and 320/01) but there were obvious differences in the present case requiring a more severe lead sentence.Those who received ten years for attempting to kill Mr Nuku did not include the gunman.The injury inflicted on that occasion, although potentially severe, was in fact relatively minor, at least in comparison with the dreadful permanent injury inflicted by Mr Hartley.As the sentencing Judge said, the present case is about as close to murder as it is possible to get. It was a second pre-meditated attempt on the life of a man whom the present offenders knew to have been the subject of a similar attack by others.It involved gang activity with the potential for danger to members of the public. Mr Hartley was the gang leader and himself carried out the shooting.There is a total lack of remorse; in fact that there are statements from Mr Hartley indicating that he would rather that Mr Nuku had actually died.

[35] Mr Nisbet submitted that the sentences for arson and wilful damage should not have been imposed cumulatively.But those were distinct crimes on different occasions, although primarily directed at the same victim.

[36] We are satisfied that the totality of the offending well deserved an effective 15 years imprisonment.

[37] On behalf of Mr Gardiner, Mr Hewson pointed to his lesser role, suggesting that Mr Gardiner should have been sentenced on a basis which had regard only to his passing a message to Ms Jager on the evening of the attack on Mr Nuku; in other words, that he should not have been treated as having any involvement in the prior planning or the carrying out of the attempt to kill.Counsel also pointed out that Mr Gardiner does not appear to be a member of the gang and that he has only a minor criminal record, whereas Mr Hartley has a large number of prior convictions, some for offences of violence.Mr Gardiner in contrast, is not considered to be a dangerous person.Counsel said that a three year difference was insufficient.

[38] The Judge was entitled to take the view, as he clearly did, that the evidence established that Mr Gardiner was present when the shots were fired and had taken part in the planning.As Mr France submitted, any significant involvement in offending of this character with such serious consequences for the victim, merits a lengthy sentence; any membership of this type of enterprise must come at a high price.In our opinion the nine year sentence was within the range open to the Judge and we would not disturb it.

Result

[39] The appeals against conviction and sentence are all dismissed.

Solicitors:

Crown Law Office, Wellington