THE QUEEN v VINCENT WAYNE ALFRED [2003] NZCA 14 (27 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/02

THE QUEEN

V

VINCENT WAYNE ALFRED

Hearing:

26 February 2003

Coram:

Gault P

Robertson J

Doogue J

Appearances:

L O Smith for Appellant

G C de Graaff and H D M Lawry for Crown

Judgment:

27 February 2003

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]

The appellant was convicted following trial by jury in the High Court of aggravated robbery, aggravated burglary and wounding with intent to injure.He was sentenced to seven, five and four years’ imprisonment respectively in relation to those offences.He appeals against conviction and sentence.

[2]

The appeal against conviction is pursued upon the basis of an alleged misdirection by the trial Judge in answering a question from the jury, it being said that the direction placed an onus of proof upon the appellant in circumstances where there was no such onus.The appeal against sentence relied upon an absence of parity between the sentence imposed upon the appellant and that imposed upon a co-offender.However, counsel for the appellant in oral argument acknowledged that if the conviction were upheld there was a proper basis to differentiate.

Background

[3]

The appellant and five other men had been drinking heavily.Some of the men made their way to a residential unit occupied by several persons.One of the men, a Mr Simi Vaipulu, entered the unit while the others remained outside.A fight broke out between him and one of the occupants.Certain others of the group then entered the unit.One of the men, allegedly the appellant, was armed with a pair of garden shears, which he used to threaten two of the occupants.Mr Simi Vaipulu was accidentally injured by the shears.One of the occupants was hit by a rice cooker resulting in a serious cut to his head.A video recorder was stolen.It was later found in a ceiling space over the appellant’s bedroom.So far as the appellant is concerned the real issue at trial was whether he was involved at all (which he strenuously denied) and particularly if he was the man with the garden shears.

[4]

The man who first entered the unit, Mr Simi Vaipulu, pleaded guilty to a charge of aggravated burglary and was sentenced to five years’ imprisonment.Another of the six men was discharged at an early stage, the Crown offering no evidence against him.A third man was acquitted by the jury on all charges.A Mr Latu Vakalahi was found guilty of burglary and sentenced to a non-custodial sentence.The appellant and a Mr David Ifa Pulu were each found guilty of the three offences of which the appellant was convicted.Mr Pulu was sentenced to six years’ imprisonment on the aggravated robbery count and two lesser sentences of imprisonment on the other two offences.

The appeal against conviction

[5]	The appeal against conviction focuses on the answer to a question by the jury

“Why is there no photo of Simi’s teeth?”

The Judge answered that question in the following manner:

“Its true that there is no evidence or photograph of Simi Vaipulu’s teeth, but you must decide the case on the basis of the evidence which you have before you.You should not speculate as to the reason why that evidence has not been placed before you; we have to rely on counsel to bring forward any evidence that they consider to be relevant.”

[6]

The background to the question and answer went to the identity of the person holding the garden shears inside the residential unit.The jury asked a further question directed to that issue asking for the complainant’s description of the man with the shears to be read back to them which the Judge did:

“Could you describe this person who had the clippers, please? ... Tall

Anything else apart from tall? ... Something wrong with his tooth in the front.

What was wrong with his tooth at the front? ... I don’t know is it broken or not, but something wrong with that one.

Right, and you’re pointing to the front top tooth? ... It’s a long time but I remember that some problem with a tooth in the front.

Could you describe as best you can what you remember of the problem with the tooth, please? ... Is look different like a rotten tooth.It’s not like white like the others.

Anything else you noticed about that tooth? ... I have many shirt on the top like orange, green.

No, I asked about the tooth.Could you tell us anything else about that tooth, please? ... I don’t know how to explain, like a rotten one but was not good, not like normal.

Right, what I am asking is, what was it that made it different from normal? ... Because when he pulled a face and then I recognise something wrong with that tooth.

What I want to know is apart from being rotten, what else do you remember about that tooth that attracted your attention? ... No because, ah, at that time I realise it’s a rotten one and like, ah, need to pull out or something like that.”

[7]	Later in her evidence-in-chief the complainant returned to the topic in the following short passage:

“Can you remember anything else about the teeth of the man with the clippers, apart from what you told us yesterday? ... When he used the clippers in front of me I noticed that his tooth is some problem with that one, it’s sort of missing but it’s not, but it’s like a half or I’m not quite sure, but it looked different.”

[8]	The complainant was not cross-examined about this aspect of her evidence.
[9]	The Judge also read other passages describing the age and colouration of the man with the shears that were broadly consistent but not determinative of him being the appellant.In addition passages about the clothing of the man with the shears were read.Such evidence was favourable to the appellant, as the description was inconsistent with the clothing found on him not long after the offending.Understandably the complainant had been cross-examined on that part of her evidence to highlight what was favourable to the appellant and it had been pointed out to the jury in the summing-up.The complainants’ identification evidence of the man with the shears was thus fully before the jurors as a result of the answer to their question.
[10]	The jury had before them photographs of all the persons charged in relation to the offending, including photographs of their teeth, but there was no photograph of Mr Simi Vaipulu’s teeth as he had already pleaded guilty.The photograph of the appellant showed that he had a chipped upper incisor with other damage.During the trial the appellant himself acknowledged he was the only one of the men with anything out of the ordinary in relation to front teeth.One of the other men had a gap between his incisors but no damage to them.There was also the evidence of the complainant that Mr Vaipulu was injured by the man with the shears.Thus he was not the man welding them.Exactly why the jurors should have wanted to see a photograph of Mr Vaipulu’s teeth is therefore not clear.
[11]	The appellant’s case was put to the jury in accordance with his statement to the police and his evidence at trial, namely,that he was not present when the offending occurred.It was stressed that the evidence of the complainant referring to the clothing of the man with the shears was inconsistent with the appellant.It was submitted that the evidence of the complainant about the tooth, which appeared to point to the appellant, was vague and unreliable and inconsistent.Further, it was said, there was evidence that the appellant had a scar on his face, which was not identified by the complainant.Thus it was suggested for the appellant that not only was there his positive evidence that he was not present but that there was no satisfactory evidence identifying him as one of the persons who entered the residential unit or identifying him as the person holding the garden shears.
[12]	It is submitted for the appellant that, save for the evidence of the complainant relating to the tooth, there was no evidence identifying the appellant as being within the residential unit as the other evidence of the complainant and of the Crown appeared to negate any such possibility.Such other evidence related to the absence of blood upon the appellant’s clothing and the description of the person holding the garden shears.The description of clothing was inconsistent with that of the appellant and as already mentioned there was no reference to any scar on the face of the person involved.
[13]	On this basis it is submitted for the appellant that, whilst the first part of the Judge’s answer to the jury’s question was proper and appropriate, the last part of the answer “we have to rely on counsel to bring forward any evidence that they consider to be relevant” was inappropriate.It is submitted that that turned the burden of proving the appellant’s guilt away from the Crown and wrongly placed a negative burden on to the appellant.
[14]	It is submitted for the appellant that the only possible inference for the jury from the direction by the Judge was that they could be sure that if a photograph showed Mr Simi Vaipulu with a damaged chipped tooth, counsel for the appellant would have put it before them, and because such photograph was not produced it can be safely accepted that Mr Simi Vaipulu did not have a damaged tooth.(Ms Smith was not counsel for the appellant at trial although she did represent a co-accused).
[15]	Understandably the Crown challenges this analysis of the Judge’s answer and submits that the answer was neutral and impeccable and was not at all in conflict with the clear and proper directions the Judge had given the jury as to the onus and standard of proof.He had made clear on a number of occasions that the onus lay on the Crown at all times and that there was no onus on the accused.
[16]	We are satisfied there is no substance in the point of appeal raised.As already made clear the photograph of the teeth of Mr Simi Vaipulu was non-probative and irrelevant when the appellant accepted that only he had a damaged front tooth and there was unchallenged evidence that Mr Simi Vaipulu was injured by the garden shears when they were being held by the man with the damaged tooth.No miscarriage of justice could possibly have arisen from the Judge’s answer to the question.In any event the statement that it was for counsel to ensure that relevant evidence is produced is unexceptional and does not of itself create or impose any onus.It is clear that in the context of this trial the jury could have been in no doubt that there was no onus of proof on the accused and that the onus of proof remained on the Crown at all times.

Appeal against sentence

[17]	The appeal against the lead sentence of seven years’ imprisonment was based solely on the disparity between that and the lead sentence imposed upon Mr Pulu of six years’ imprisonment.
[18]	However, it is now accepted that if the conviction stands as it must there is a basis for the difference in sentence.Mr Pulu was four years’ younger than the appellant.He was not the man threatening the complainants with the garden shears.There were other factors from which the sentencing Judge, who was the trial Judge, was entitled to take the view that Mr Pulu’s role in and culpability for the offending were less than that of the appellant.For example, the Judge accepted that Mr Pulu had at one stage tried to stop matters.On the other hand the appellant used the shears to threaten in a frightening manner not only two of the people in the unit but subsequently the driver of a car.He had participated fully in all the events and was a party to the attack with the rice cooker and the theft of the video recorder, even if not as the principal party.
[19]	Thus in the particular circumstances there was every justification for the Judge to make the modest differentiation that he did make between the sentences imposed upon the appellant and Mr Pulu.

Decision

[20]	The appeals against conviction and sentence are dismissed.

Solicitors

L O Smith, Auckland, for Appellant

Crown Solicitor, Auckland