THE QUEEN v DEAN EDWARD COOK [2003] NZCA 215 (3 September 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 200/03

THE QUEEN

v

DEAN EDWARD COOK

Hearing: 25 August 2003

Coram: Glazebrook J

Fisher J

O'Regan J

Appearances: R A A Weir and J R C Lees for Appellant

B J Horsley and M F Laracy for Crown

Judgment: 3 September 2003

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]	Mr Cook was convicted by a jury in the District Court at Whangarei of one charge of assault with intent to rob (s 235(1)(b) Crimes Act 1961).He was sentenced to imprisonment for 2½ years.He appeals to this Court against his conviction.There is no appeal against the sentence.

Basis of appeal

[2]	The appellant raises a number of separate grounds of appeal and argues that the cumulative effect of those matters has led to a miscarriage of justice in terms of s 385(1)(c) Crimes Act 1961.In particular, it is alleged that:
a)	Trial counsel failed to follow the appellant’s instructions to call three witnesses, being the appellant’s partner, Sheryl Hohaia, his cousin Michael Cook, and his friend Taaho Timoko;
b)	Trial counsel pressured the appellant into making a decision not to give evidence at the trial;
c)	Trial counsel failed to obtain instructions from the appellant about a proposal to have three armed police in the courtroom at the time the complainant gave evidence;
d)	Trial counsel made a number of errors at the trial, including failure to call the appellant to testify, failure to call the witnesses referred to above, failure to obtain instructions on the arrangement relating to armed policemen, and to make an objection to that arrangement, and failure to cross-examine the complainant as to the extent of his injuries from the assault;
e)	The trial Judge was wrong to have provided the transcript of the evidence to the jury on a progressive basis throughout the trial.
[3]	We have considered affidavits from the appellant, and from trial counsel, Mr McKean and a further affidavit in reply from the appellant.We also heard cross-examination of the appellant and Mr McKean.

The facts

[4]

The charge against the appellant arose from an incident which took place on 1 February 2002.On that day, the appellant and his brother in law, Duffy Erueti went to the home of the complainant at Waikaraka near Whangarei.A discussion about a motorbike arose between the appellant and the complainant.While this discussion was taking place, Mr Erueti struck the complainant, who fell back, hitting his head on a ranchslider door.The Crown case was that the appellant and Mr Erueti had gone to the complainant’s house together, for the common purpose of robbing the complainant of his motorbike.No bike was taken from the complainant, but an actual taking of property is not a required ingredient of an offence.

[5]

The defence case was that the appellant and Mr Erueti had gone to Whangarei from Kaikohe for the principal purpose of visiting a sick relative.While they were in Whangarei, they had decided to visit the complainant to make inquiries about a motorbike which had been stolen from an associate of the appellant, in which the appellant had an ongoing interest.(For ease of reference we will refer to this as the appellant’s motorbike.)It was argued there was no intention to rob the complainant of his motorbike, but rather to make inquiries about the stolen motorbike, about which they expected the complainant to have some knowledge.

General observations

[6]

Before turning to the specific grounds of appeal, we should record our assessment of the credibility of the appellant and Mr McKean.We have no difficulty in concluding that conflicts in the evidence should be resolved in favour of Mr McKean.He impressed us as a witness with his clear and consistent evidence. That contrasted with Mr Cook’s evidence which was contradictory in some respects and lacked credibility in others.We comment on particular aspects of the evidence in relation to the specific grounds of appeal raised by the appellant.

Failure to call three witnesses

[7]	Counsel for the appellant accepted that it was necessary to establish that the appellant gave an explicit instruction to call a particular witness, rather than simply having a desire that the witness be called.The appellant’s evidence was that he had given such a specific instruction to Mr McKean to call Sheryl Hohaia, Michael Cook and Taaho Timoko but that Mr McKean failed to do so.He said that:
a)	Ms Hohaia could have testified as to a connection between the complainant and a Caleb Hanson, and as to the fact that Caleb Hanson had visited the house of the appellant and Sheryl Hohaia with three other people the day before, and stolen the appellant’s motorbike;
b)	Michael Cook could have testified that the reason for the appellant and Mr Erueti going to Whangarei was to visit their ill grandfather;
c)	Mr Timoko could have testified that Caleb Hanson had stolen the appellant’s motorbike from Maria Timoko’s residence, that Caleb Hanson and the complainant were friends and that he, Mr Timoko, had recovered the appellant’s motorbike from Caleb Hanson.
[8]	An affidavit from Ms Hohaia was presented to the Court.She confirmed the details about Caleb Hanson and also said the complainant was a dealer in car parts, and one of the reasons Mr Cook had visited the complainant’s home on the day of the offending was to obtain a windscreen for her car.
[9]	Attached to Ms Hohaia’s affidavit was a copy of a report prepared on a warrant of fitness check showing that the car needed a windscreen and a purchase order headed “Purchase order” addressed to Dean Cook, and referring to a windscreen for a Ford Falcon vehicle, costing $580 including GST.There is also a business card from “Aqua Glass & Aluminium” of Paihia.Ms Hohaia said this was the party from whom she purchased the windscreen after Mr Cook’s arrest.The “purchase order” is dated 26.02.02, but it is clear even from the photocopy presented to the Court that this date has been altered, and the original date was 2003 rather than 2002.The appellant said this alteration corrected an error by the Aqua representative, but even on his evidence it was clear the purchase order had been prepared and signed well after the transaction to which it was said to relate.
[10]	We also received an affidavit sworn by Michael Cook, in which he said he spoke to the appellant on 1 February 2002, and they had agreed to meet in Whangarei to visit their ill grandfather.Appended to this affidavit was a copy of a letter headed “To whom it may concern”, in which Michael Cook said he confirmed the telephone conversation and the reason for the appellant’s visit to Whangarei.The document is undated, but Mr Cook said he had sent it to the Mr McKean on 20 August 2002.
[11]	There was no affidavit before the Court from Taaho Timoko and therefore no confirmation of the appellant’s view as to what Mr Timoko could have said if he had been called as a witness.
[12]	In his initial affidavit the appellant said he had met with Mr McKean just after depositions were taken (April 2002), and they had had another meeting on the Sunday before the trial.He said the latter meeting was “the first contact we had in 14 months”.He said he had expected Mr McKean to investigate information he had given him, which included the intention to obtain a windscreen from the complainant.
[13]	Mr McKean said he had a meeting with the appellant on 10 April 2002.He prepared a brief of evidence after that meeting and sent it to the appellant.Although it is addressed correctly, the appellant said he did not receive it, although in cross-examination he said he could not recall whether he received it or not.Mr McKean said he was not told of the purpose of obtaining a windscreen from the complainant, and that if he had been instructed to brief further witnesses he would have prepared briefs for them too.
[14]	It became clear that the appellant’s evidence that there was no contact between him and Mr McKean for 14 months was untrue.In cross-examination he said he had discussed with Mr McKean “off and on” about the need to call witnesses, and acknowledged there had been contact between them during the 14 month period, particularly at callovers.However, he could not provide an adequate explanation as to why he had not pressed Mr McKean about calling witnesses during this 14 month period, if Mr McKean was failing to comply with instructions.
[15]	This was particularly puzzling because the proposed witnesses were his partner, with whom he was living throughout that period, his cousin and his friend, all of whom were readily contactable by him.He could easily have taken steps to initiate contact between them and Mr McKean if he had instructed Mr McKean to brief them and Mr McKean was not complying with that instruction.As he was living with Sheryl Hohaia it would have been apparent to him throughout that period there had been no contact between her and Mr McKean, yet he took no action to rectify the situation.
[16]	The appellant said he did not initiate contact with the witnesses, because he did not want to be seen to be “tampering” with them.This is inherently improbable.There was clearly nothing improper about talking to witnesses who were to give evidence on his behalf, and as Mr McKean pointed out, no basis on which these witnesses could ever have been portrayed as being independent of the appellant (nor any need for them to be portrayed in that way).
[17]	In summary, we did not find his evidence as to instructions to call witnesses credible, and we prefer the evidence of Mr McKean that no such instruction was given.
[18]	Even if these witnesses had been called, it was doubtful that their evidence would have been of particular significance in the context of the trial as a whole.The use of the windscreen purchase order could have been damaging, and Mr McKean said he pointed this out to the appellant when he saw the date had been altered.He said the appellant accepted it would be unwise to lead this evidence.We accept Mr McKean’s evidence on that point.The only other reason for calling Ms Hohaia was because of the evidence of the theft of the appellant’s motorbike, but this evidence was already before the Court.
[19]	There was no particular significance in the reason for the appellant’s visit to Whangarei from his home near Kaikohe, which was the issue on which Michael Cook could have given evidence.The issue at the trial was why he had visited the complainant’s house, and it was not material to that issue as to whether that visit was the only reason for the appellant’s journey to the Whangarei area, or a secondary reason.
[20]	We are not satisfied that evidence from the three named witnesses would have been significant.But more importantly, we are not satisfied that the appellant has established that instructions were given to Mr McKean to call them, and accordingly this ground of appeal fails.

Appellant not giving evidence at trial

[21]	It was clear that the preparation for trial had proceeded on the basis that the appellant might give evidence.That was why the brief of evidence was prepared on 10 April 2002, and subsequently amended and refined on the Sunday before the trial.At the conclusion of the Crown case the decision was taken not to call the appellant to give evidence and he signed a document confirming he did not want to do so.
[22]	In his initial affidavit, the appellant said he wanted to testify.He said Mr McKean had advised that the evidence of a Ms Cullen, a Crown witness, which contradicted the complainant’s evidence, would suffice to show reasonable doubt.He said he was uneasy about this, but acknowledged that Mr McKean was the expert and that he signed the agreement not to testify reluctantly.
[23]	Mr McKean’s version of events was not markedly different.He said Ms Cullen’s evidence had varied significantly from her position at depositions.In particular, in evidence at the trial she said she could hear the appellant asking for the appellant’s motorbike, and doing so repetitively.This was obviously supportive of the appellant’s version of events, and contradictory of the version outlined in the complainant’s evidence.Mr McKean said he assessed the evidence as raising a reasonable doubt.
[24]	Mr McKean said he spoke with the appellant about giving evidence, and made it clear it was the appellant’s decision.He said he told the appellant there was a chance of winning whether the appellant gave evidence or not, and that he was of the view that Ms Cullen’s evidence raised reasonable doubt.He told the appellant there was a risk if he gave evidence that he would expose himself, but it was a matter for him.He said the appellant was in two minds, but at the end he decided not to give evidence, and signed the document confirming that fact.Mr McKean said he viewed the appellant as a mature, intelligent person, with some business acumen, and he did not think it was necessary to challenge him on his written instruction.
[25]	In his affidavit in reply, the appellant said that, at the time of the discussion about giving evidence his nerves were shot, and he wanted to give evidence.That is hard to reconcile with the decision he took, and the written confirmation of that decision.
[26]	We are satisfied that there is no basis for criticism of Mr McKean in relation to the decision not to call the appellant.While it was obviously finely balanced, Mr McKean correctly analysed the position, and advised the appellant accordingly.The appellant was properly advised, and he took the decision not to give evidence himself, as confirmed by the document he signed at the time.
[27]	During the course of the appeal, counsel for the appellant raised an issue which had not been mentioned in the points on appeal.He was granted leave to expand on the points of appeal to deal with that issue.Essentially, the allegation made against Mr McKean was that his commitment to another trial, immediately after the completion of the appellant’s trial, led him to pressure the appellant into deciding not to give evidence so that his trial would finish more quickly.We are satisfied that that allegation was completely unfounded.It was clear that the clash between the two trials was of no particular moment to Mr McKean, because the other defence counsel and the trial Judge were also to be involved in the other case, so it could not begin until the appellant’s case had finished.It was equally clear there was no pressure on Mr McKean to conclude the appellant’s case.
[28]	Accordingly, this ground of appeal also fails.

Armed police in courtroom

[29]	The next ground of appeal related to the proposal that there be armed police in the courtroom while the complainant gave evidence.It was common ground that this need for security had nothing to do with the accused.It was clear that the Judge was concerned that this arrangement be as inconspicuous as possible.He consulted counsel and then issued a minute, in which he allowed the presence of the armed officers in Court, but only after steps were taken to ensure that the jury would not see the witness being escorted into Court by the armed officers.He did not permit the armed officers to be seated on either side of the witness, but provided for them to be seated at the press bench, and in the public gallery.
[30]	The appellant said that he was not consulted by Mr McKean about these arrangements, and he believed this prejudiced him because the jury may have noticed the armed policemen and thought their presence was because the complainant needed protection from him.He said he did not know about this before trial, and when he objected Mr McKean told him to shut up.
[31]	Mr McKean said he was aware the complainant was under protection because he was a Crown witness in a drugs case.He said he was told that the complainant needed police protection because an attempt had been made on his life.He could not remember whether the appellant was present at that stage, but he said he had been involved in a previous trial where a similar situation had arisen.He did not believe there was any possibility that the trial Judge would rule against the protection being provided.Mr McKean said he told the Crown prosecutor he did not want the officer sitting next to the witness, and agreed to the proposal which was ultimately adopted.He accepted he may not have discussed this with the appellant, but denied telling him to shut up.He said he regarded the presence of the officers as a reality and his focus was on reducing the risk of prejudice.He acknowledged the appellant was concerned about the situation.
[32]	We accept that Mr McKean ought to have taken instructions on these issues. However, we have real doubts that had he done so, and been instructed to pursue an objection to the arrangement, such an objection would have succeeded.We do not accept that Mr McKean told the appellant to shut up – we prefer his evidence on that point.There is no reason for us to doubt the necessity for the security arrangements and we are not satisfied there was any evidence of prejudice to the appellant arising from this arrangement.There is no evidence before us that the fact the officers were armed became apparent to anyone in the Court, and there is no basis for an assumption that that occurred.

Alleged errors by trial counsel

[33]	The next ground for appeal was Mr McKean made a number of errors, including failure to call the appellant to testify, failure to call witnesses against instructions, and failure to obtain instructions on the arrangement relating to armed policemen.For reasons already given, we are satisfied there was no error by Mr McKean in relation to the decision of the appellant not to testify, or in relation to the failure to call witnesses.We accept that Mr McKean ought to have obtained instructions relating to the armed policemen, but that was not a serious error which could amount to a ground for appeal.
[34]	The only other alleged error was the failure to cross-examine the complainant on the extent of the injuries he suffered as a result of the assault by Mr Erueti.In his affidavit the appellant said that Mr McKean did not produce the victim impact report relating to the complainant and use it as a basis for his cross-examination.The appellant said the victim impact report said the complainant had sustained a superficial cut, whereas the complainant said his head was split open and he was bleeding out of his ears.
[35]	Mr McKean said the victim impact report was not available at that stage, because such reports are given to defence counsel only at the time of sentencing.That being the case, it is difficult to see how he can be criticised for failing to cross-examine on the basis of a report he did not have.
[36]	The appellant’s counsel argued in this Court that the photographic evidence before the Court indicated the injuries were not as serious as the complainant said, but it is hard to see why cross-examination would have assisted matters, as the photographs themselves were available to the jury.
[37]	Mr McKean said he did not consider there was any need to cross-examine the complainant about the extent of his injuries.That was a matter of judgment and we see no basis for criticism of it.The complainant had been assaulted, and this was accepted by the appellant.That ingredient of the offence of aggravated robbery was therefore established.The only basis for cross-examination would have been because it may have brought the credibility of the complainant on that aspect of the case into question.
[38]	We are satisfied that there was no radical error in the failure to cross-examine the complainant on the extent of his injuries.We consider Mr McKean did not make any other radical error at the trial, and this ground of appeal also fails.

Transcript of evidence

[39]

Counsel for the appellant accepted there was nothing unusual about the transcript of evidence being provided to the jury, but he argued that the manner in which this was done did cause prejudice.In particular, he said the transcript should not have been provided progressively during the trial (it appears it was provided on an on-going basis at each adjournment) as this meant the transcript of the evidence in chief of some witnesses was given to the jury before cross-examination.He said the Judge failed to provide directions to the jury about the transcripts.He said there was no instruction to keep them in the courtroom and no direction that they were not to serve as a substitute for the jury’s recollection of events.He also said there was no index.

[40]

It is simply incorrect to say the Judge made no directions about the transcript.In his opening remarks to the jury he said:

In the jury room both during the various adjournments we take and when you are considering your verdicts, you will have with you a transcript, a typed transcript of the evidence as it has been given through the trial.Now it may happen that we need to correct that transcript from time to time and if necessary the Court attendant will do that as we move through the trial.Now, although you will have with you a transcript of the evidence, it is important for you to remember that that transcript is only an aid to assist your memory.It is the evidence that you hear from the witnesses in the courtroom, together with any exhibits that are produced which is the evidence that you must consider and rely on to reach your verdicts.

[41]	Later, at the time of the first adjournment he said:

As I have said earlier, I am not sure whether they are in the jury room yet, but there will be in the jury room for you three folders, they look like that – which will have the transcript in them.Mr Foreman, if you can, at the end of each adjournment, simply give the folders back to the crier, he will then add the pages as we go through so that they are kept up to date for you.Now members of the jury, those folders should not be taken out of the jury room by any of you, they should be left here and remain in the Court building.

[42]	The appellant’s allegation in that regard is therefore factually incorrect.
[43]	We are not satisfied there was any prejudice to the accused by having a transcript with no index.This was a short trial and the transcript ran to some 50 pages.There were five witnesses in total, three of whom were police witnesses, the other two being the complainant and his former partner.While an index may have been helpful, it was not essential.
[44]	Counsel for the appellant said the provision of the transcript to the jury at each adjournment meant that counsel did not have a chance to check the transcript for any inaccuracies.He said this was potentially prejudicial because the jury would have a transcript of evidence in chief of a particular witness before having the transcript of the cross-examination.We accept it is preferable to ensure the transcript is checked by counsel before it is provided to the jury, but the appellant does not allege there were, in fact, any material inaccuracies in the transcript, and there has therefore been no prejudice from that course having been adopted.
[45]	We do not accept there was any prejudice from the provision of the transcript relating to the examination in chief before the transcript of the cross-examination was available.The transcript merely records the evidence in the order in which it is given, and there is no basis for concluding the jury would read the transcript relating to evidence in chief before hearing the cross-examination and then ignore the cross-examination because of their reading of the transcript.
[46]	In all the circumstances, we are not satisfied there was any prejudice to the appellant from the provision of the transcript to the jury in the manner in which it was done by the trial Judge.However, we agree with counsel for the appellant that as a matter of best practice, it is preferable for counsel to be given the opportunity to check the transcript before it is provided to the jury.If the transcript is to be provided during the course of the trial, it will normally be preferable to do this at the beginning of each day so that any inaccuracies from the previous day can be identified by counsel overnight, and corrected before the jury sees it.

Conclusion

[47]	The appellant based his appeal on the cumulative effect of the grounds of appeal which he raised.We have found that none of them has any substance.In our view, the appellant’s attack on the conduct of his case by Mr McKean is without any substantial merit.
[48]	We dismiss the appeal.

Solicitors:

Crown Law Office, Wellington