	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 163

The Queen v Miessen [2006] NZCA 163 (6 July 2006)

Last Updated: 19 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA222/05

THE QUEEN

v

FRANK LOUIS MIESSEN

Hearing: 23 May 2006

Court: O'Regan, Arnold and Ellen France JJ

Counsel: Appellant in person
E M Thomas for Crown

Judgment: 6 July 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellant was convicted after a jury trial in the District Court at Christchurch of one charge of threatening to kill under s 306(1)(a) of the Crimes Act 1961. At sentencing, he was ordered to appear for sentence if called on to do so within twelve months: s 110(1) of the Sentencing Act 2002. He appeals to this Court against his conviction.

Conduct of the appeal

[2] Mr Miessen conducted his own appeal. The appeal was heard initially by a division of the Court comprised of Robertson, Baragwanath and Doogue JJ on 24 November 2005. That hearing was adjourned to allow time for Mr Miessen to pursue an argument that there had been a breakdown of communication between him and his trial counsel which had led to important evidence not being placed before the jury, resulting in a miscarriage of justice. In a minute issued on 24 November 2005, the Court suggested that, ideally, the further preparatory work would be undertaken by counsel acting for Mr Miessen. However, Mr Miessen subsequently notified the Court that he had been unable to obtain counsel despite approaches to a number of lawyers, and that he wished to continue to conduct the appeal himself, but with additional submissions being presented. Those submissions were accepted by the Court and have been considered by the present division.

Mr Miessen’s grievance

[3] Mr Miessen’s case attracted significant publicity because the person whom he was said to have threatened to kill was the Prime Minister, the Rt Hon Helen Clark. Mr Miessen is a former undercover police officer, who claims to have developed a dependence on cannabis as a result of his frequent use of that drug during his undercover police work. He left the police in 1990. He is one of a number of former undercover police officers who have a grievance about their treatment by the police and the Government in general during the period that they worked under cover, and after the consequences of that undercover work, including mental illness, became apparent.

New evidence

[4] Mr Miessen sought to place before the Court an affidavit of Mr M J Doyle dated 27 October 2005. Mr Doyle is also an aggrieved former undercover police officer. At the commencement of the hearing, we accepted the affidavit de bene esse so that we could hear argument addressing the matters raised in it. We indicated that we would rule on the admissibility of the affidavit in our judgment on the substantive appeal, and we will revert to this later in this judgment.

Background to 17 July events

[5] The allegation of threatening to kill the Prime Minister arose from events which occurred on 17 July 2004. Before summarising those events, we will first deal with the background to the events of that day.
[6] Mr Miessen claims that his work as an undercover police officer led to drug dependency which, in turn, affected his mental health. On 13 July 2004 Mr Miessen went to see a police psychiatrist, Dr A B Marks. In the course of the consultation, Mr Miessen told Dr Marks about feelings he harboured towards the police and the Government, and his frustration that Court proceedings on behalf of former undercover police officers against the Crown had not come to a hearing. He said he had considered "doing something" to the Prime Minister for many years and had managed to get close to her on a couple of occasions. He told Dr Marks that he had a number of firearms at his home at Akaroa. Dr Marks spoke to Mr Miessen again by telephone on 14 July 2004. During that conversation Mr Miessen mentioned that the Prime Minister would be visiting Waimate on 17 July 2004. He told Dr Marks he did not plan to assault Ms Clark at Waimate but said that was not definite. Dr Marks said he did not obtain indications from Mr Miessen that he intended to assault or kill Ms Clark on the following weekend (i.e. when she was to be in Waimate).
[7] Dr Marks decided to report these matters to the police. He considered that Mr Miessen was not a fit and proper person to possess firearms, and that he was capable of harming the Prime Minister. He reported to the police on 16 July 2004. He did not give evidence at Mr Miessen’s trial, but a transcript of his interview with the police on 16 July 2004 was disclosed to the defence and was in evidence before us. That transcript is the source of the summary set out above.

Events on 17 July 2004

[8] Having received information from Dr Marks, the police initiated an Armed Offenders Squad (AOS) operation at Mr Miessen’s home at Akaroa. The operation commenced at 7.00am. The police decided to lure Mr Miessen away from his home (before confronting him). To achieve this, one of the police officers, Constable Thoroughgood, approached Mr Miessen’s house dressed in tramping clothes. He knocked on the door and, when it was answered, told Mr Miessen that he had been tramping with his girlfriend and that she had fallen over and broken her leg. He sought assistance. Mr Miessen agreed to help him and he and Constable Thoroughgood rode on Mr Miessen’s quad bike to a point about 150 meters away from the house. The Constable then signalled to four other members of the AOS, including two police dog handlers, and they came out of hiding and approached Mr Miessen. Constable Thoroughgood removed the keys from the quad bike, told Mr Miessen that he was a police officer, and said that he was there to serve on Mr Miessen a notice revoking Mr Miessen’s firearms licence. He also said that the police intended to seize Mr Miessen’s firearms. He handed the revocation notice to Mr Miessen and showed him a search warrant issued under s 61 of the Arms Act 1983.
[9] Mr Miessen was upset by this. He became abusive. Constable Thoroughgood was not a witness at the trial, but gave evidence at a s 344A hearing before Judge Crosbie, to which we will refer later. Constable Thoroughgood said Mr Miessen became very agitated and swore at the police officers when it became apparent what was happening. He described Mr Miessen as "pacing around freely yelling about the police and past injustices, which had been measured out against him".
[10] The Constable said Mr Miessen agreed to go with the police officers back to the house to collect his firearms and ammunition. They walked back to the house, and at one point Mr Miessen stopped walking suddenly. A police dog jumped on Mr Miessen’s back, and he was later given medical attention for the resulting injury. Mr Miessen co-operated with the police in accessing his firearms and ammunition and pointed out to them some cannabis he had in his possession.
[11] Constable Thoroughgood said that Mr Miessen’s demeanour changed rapidly during this period from being calm to being agitated and back again. The Constable did not mention any threat being made by Mr Miessen. He said Mr Miessen did not say anything to him about the Prime Minister, though he heard her name being mentioned when Mr Miessen was talking to others. However he did not remember any specifics.
[12] The Crown case was based substantially on the evidence of the officer in charge of the operation on 17 July 2004, Senior Sergeant Parker. In his evidence at the trial, Senior Sergeant Parker described Mr Miessen’s demeanour during the police operation as agitated and angry, although he said Mr Miessen had been co-operative with the police. The Senior Sergeant said that Mr Miessen was abusing police, but the main thrust of what he was saying was that he was going to, or he wanted to, strangle the Prime Minister and break her neck. He said that Mr Miessen said that probably 14 to 15 times throughout the morning in slightly different variations.
[13] When asked about his reaction to that, the Senior Sergeant responded:

Initially it was taken as ranting and raving and I didn’t consider at that point that he would carry out what he was saying, however there was a point where it crossed the line and it became a lot more serious in my view and that’s when the decision came to um have him arrested. And that point was when he became a lot more calm and pointed in himself and he said that because of what police had done, that is searching the premises, that he would now go to Waimate, he would use a friend that he knew down there who had, was able to get him access into the celebrations that were occurring down in Waimate, and that he would go down there and attempt to strangle the Prime Minister and break her neck. That was different from what he’d been saying, in context, throughout the rest of the morning.

[14] The Senior Sergeant said that Mr Miessen’s conduct had changed in this way as the police had almost finished their search and were packing up and getting ready to leave. In cross-examination, the Senior Sergeant agreed that Mr Miessen had constantly asked why the police were taking his guns because he did not want to shoot Ms Clark. He also accepted that Mr Miessen had gone on to say:

All I want to do, I feel like wringing her neck like Hilary [Clinton] wanted to wring Bill’s.

[15] The Senior Sergeant also accepted that he had not recorded in a job sheet made at the time that there had been a change in the nature of Mr Miessen’s comments which had led him to conclude that Mr Miessen had now crossed the line, necessitating arrest. Nor was there any reference to Mr Miessen saying he would go to Waimate to attempt to strangle the Prime Minister.
[16] At the end of his cross-examination, the Senior Sergeant was asked why he had not, in his evidence in chief, mentioned Mr Miessen’s comment that he wanted to wring the Prime Minister’s neck like Hillary wanted to wring Bill’s. He answered that he could not have told the jury the specifics of every single thing that was said, but that he had given "a generalisation of what he [Mr Miessen] said over that period of time".
[17] The number of times the appellant mentioned the Prime Minister during the incident on 17 July was a matter of dispute, and there were different versions given by different witnesses.
[18] After the statements referred to by Senior Sergeant Parker, which were the basis for the charge, were made, the Senior Sergeant directed another officer, Constable Boddy, to arrest the appellant for threatening to kill. There was a dispute as to the basis for this arrest, to which we will return later in this judgment.

Section 344A application

[19] Mr Miessen’s trial counsel indicated an intention to challenge the admissibility of the evidence of the statements made by Mr Miessen during the 17 July incident on the basis that a breach of the New Zealand Bill of Rights Act 1990 (Bill of Rights) had occurred. The Crown therefore made an application under s 344A of the Crimes Act for a ruling on the admissibility of that evidence. That application was heard and determined by Judge Crosbie.
[20] The Judge heard evidence from Constable Thoroughgood, Senior Sergeant Parker, Constable Boddy and Mr Miessen. The contention on the part of the defence was that Mr Miessen was detained at the time that the threats which founded the charge were made, and had not been cautioned as required under the Bill of Rights. Thus, it was argued, the statements which founded the charge against Mr Miessen should not be admitted in evidence.
[21] The Judge made factual findings against Mr Miessen. He rejected Mr Miessen’s evidence that there was always someone next to him at arm’s length as he walked around the property. He found that, although Mr Miessen was complying with instructions, he was always in control, and was not concerned about the situation in which he found himself. The Judge also found that Mr Miessen understood his rights under the Bill of Rights and had elected not to invoke them. He accepted the police officers’ evidence that their purpose was to seize Mr Miessen’s firearms and ammunition, and that once this had been done the police position had relaxed by the time the threats were made.
[22] The Judge applied the mixed objective/subjective test for determining whether a person is detained as outlined by Blanchard J in R v M [1995] 1 NZLR 242 at 245, and, on the basis of his factual findings, concluded that Mr Miessen was not detained. The Judge also determined, that, if he were wrong in determining that there was no breach of the Bill of Rights, he would have found the statements made by Mr Miessen admissible on the basis of the balancing test in R v Shaheed [2002] 2 NZLR 377.

The trial

[23] Mr Miessen’s trial took place in June 2005. The witnesses for the Crown were:

(a) Inspector Doyle, the area commander. At the outset of his evidence, he read an agreed statement as follows:
Acting on information received concerning comments allegedly made by the accused, Mr Miessen, about the Prime Minister Helen Clark, I directed the Armed Offenders Squad to serve a notice of consideration of revocation of Mr Miessen’s firearm licence, and to seize his firearms.
The "information received" was the information provided to the police by Dr Marks but there was no evidence as to what Mr Miessen said to Dr Marks, and Dr Marks did not give evidence.
(b) Senior Sergeant Parker (see [12] - [16] above).
(c) Detective Constable Brady, a member of the AOS who was present during the events of 17 July 2004. He gave evidence of Mr Miessen being agitated and saying he wanted to strangle the Prime Minister.
(d) Senior Constable Seal, a member of the police Negotiation Team who was also present at the events of 17 July 2004. He said he arrived at Mr Miessen’s property as the AOS was preparing to leave. He said he heard Mr Miessen say "I wasn’t going to go to Waimate but I’m going to go now and strangle the bitch." He presumed Mr Miessen was referring to Ms Clark because of the reference to Waimate and because Mr Miessen had mentioned the word "Clark". He said Mr Miessen was agitated when he said this.
(e) Constable Boddy (see [18] above). His evidence was read to the Court by consent.
(f) Detective Sergeant Riach. She spoke to Mr Miessen after he was taken to the Christchurch central police station. She said that during that interview Mr Miessen said to her:
What is the evidence against me? They are not going to say I was going to shoot the Prime Minister Helen CLARK, are they? I just said I was going to throttle, that I would like to throttle her like Hilary CLINTON wanted to do to Bill CLINTON. It’s got nothing to do with my firearms.

She formally charged Mr Miessen with threatening to kill.

[24] Mr Miessen did not give or call evidence.

Grounds of appeal

[25] Mr Miessen raised a large number of separate grounds of appeal, some of which overlapped to some extent. He said the consequence of these matters, individually and collectively, was that a miscarriage of justice had occurred. We will deal with them under the following headings:

(a) The verdict was unreasonable and cannot be supported having regard to the evidence.
(b) The Crown counsel’s opening was improper, and the comments he wrongly made were widely reported in the media.
(c) The s 344A decision of Judge Crosbie was wrong.
(d) The agreed statement read by Inspector Doyle should not have been read. It was based on information provided by Dr Marks, and that information was insufficient to provide police with the necessary reason to suspect required by s 61(1) of the Arms Act.
(e) The police did not give a Bill of Rights advice and caution to Mr Miessen when they formed an intention to arrest him for threatening to kill.
(f) Constable Brady’s evidence ought to have been rejected by the jury.
(g) Constable Thoroughgood’s evidence was not available to the jury.
(h) Senior Sergeant Parker’s evidence should have been rejected by the jury.
(i) Senior Constable Seal’s evidence should have been rejected by the jury.
(j) The conduct of Mr Miessen’s trial counsel may have resulted in his being denied the opportunity to put a substantial defence.

(a) Unreasonable verdict

[26] Mr Miessen submitted that the verdict was unreasonable and could not be supported having regard to the evidence. He said the evidence of Senior Sergeant Parker and Senior Constable Seal was unreliable and inconsistent in various respects, and should have been discounted by the jury. In relation to Senior Sergeant Parker, he emphasised two concessions made by the Senior Sergeant in cross-examination. The first was that he had provided only a generalisation of what Mr Miessen had said over a period of time ([16] above). The second was that he had not recorded in a contemporaneous job sheet that Mr Miessen had changed in demeanour and that what he said at the critical time had crossed the line, necessitating arrest ([15] above).
[27] In order for the appellant to succeed on this ground of appeal, the Court must be of the view that a jury acting reasonably must have entertained a reasonable doubt as to guilt. It is not enough for the Court to simply disagree with the jury’s verdict: R v Ramage [1985] 1 NZLR 392 at 393. Matters relating to the reliability of the evidence given by particular witnesses are for the jury to determine, in the light of the submissions made by counsel and the Judge’s summing up.
[28] The matters which Mr Miessen now raises as indicia of unreliability on the part of the key Crown witnesses were matters which were before the jury. The jury accepted the police officers’ evidence. We cannot say that it was unreasonable for the jury to have done so.

(b) Crown counsel’s opening and media report

[29] In his opening, the Crown prosecutor said:

...Acting on information that the Police received the decision was made to seize his [Mr Miessen’s] firearms licence and to seize his firearms. This was based on alleged threats that had been made against the Prime Minister, Helen Clark.

[30] As noted at [23](a) above, Inspector Doyle in fact said that the information received by the police concerned "comments" allegedly made by Mr Miessen about the Prime Minister, not "threats". Crown counsel on the appeal, Mr Thomas, rightly accepted that the Crown prosecutor had been in error in referring to threats in his opening address.
[31] Mr Miessen said the reference to threats unfairly and unjustly influenced the minds of the jury members, and led to their forming a bias against him. He said there was, in fact, no credible threat made, nor was there any evidence that such a threat had been made during his consultation with Dr Marks.
[32] Mr Miessen said that the damage caused by the prosecutor’s reference to "threats" was accentuated by media reports of the prosecutor’s opening address during the course of the trial.
[33] The prosecutor should have been more careful in his choice of words, and ensured that the words used in his opening were consistent with the evidence to be given. But we do not consider that the use of the term "threats" in the opening address has led to a miscarriage of justice. The issue for the jury was whether the particular threat described by Senior Sergeant Parker and Senior Constable Seal was made by the appellant on 17 July. The background to the police’s presence at Mr Miessen’s property on 17 July was not central to that issue.
[34] Nor do we believe that the media coverage would have led to a miscarriage in the circumstances of the case. The trial Judge referred to the media coverage at the beginning of his summing up and reminded the members of the jury not to allow themselves to be influenced in any way by that coverage.
[35] It was apparent to the jury from the evidence they heard that the appellant had a considerable grievance with the Government, and in particular, concern about the refusal of the Government and the Prime Minister to pay compensation to Mr Miessen and other undercover agents who claim to have suffered problems as a result of their service. The jury heard of the appellant’s anger on 17 July when confronted by the police and the outbursts which followed. In the context of that information, the mis-description of the appellant’s prior comments as "threats" did not, in our view, carry any real danger that the jury would have been swayed to count the prior conduct against the appellant, given that the Judge expressly directed the jury to ignore the media reports and not to treat counsel submissions as evidence.

(c) Section 344A decision

[36] Mr Miessen said that the decision made by Judge Crosbie at the s 344A hearing was wrong, and that this had led to a miscarriage of justice. There was no appeal against the s 344A decision before the trial, but Mr Miessen said this was because of a failure of his counsel to seek leave to appeal when instructed to do so. We will deal with that contention later.
[37] As indicated at [22] above, Judge Crosbie found on the facts that Mr Miessen was not detained prior to his arrest by Constable Boddy. That meant that there was no requirement that he be cautioned in terms of the Bill of Rights. That in turn meant there was no basis for the argument that evidence of the statements he made which founded the charge against him was inadmissible.
[38] Mr Miessen attacked the factual findings made by Judge Crosbie, in particular the Judge’s observation that Mr Miessen was "in control" during the incident, that he was aware of his rights and that he was not detained.
[39] The difficulty the appellant faces is that Judge Crosbie made factual findings which inevitably led to his finding that there was no detention. While Mr Miessen obviously disagrees strongly with those factual findings, they were open to the Judge on the evidence before him, and there is no proper basis for appellate interference with them.
[40] Challenges to the admissibility of evidence obtained in circumstances where an accused person’s rights under the Bill of Rights have been breached usually relate to evidence of an inculpatory statement by an accused person in relation to prior offending or evidence obtained as a result of unlawful and/or seizure. That is not the case here. Rather, the evidence which the appellant sought to have excluded was an eye witness account of the actus reus of the alleged offence itself: the saying of the words which were said to constitute a threat to the Prime Minister’s life. It is hard to see why a breach of the Bill of Rights, even if one had occurred, would lead to the exclusion of evidence of the actual commission of an offence. If, for example, an accused person who is detained commits an assault, that person may have a defence (such as self defence or defence of a dwelling house), but he or she would not be entitled to have the evidence in the form of an eye witness account of the actual assault taking place excluded because the police had not given a required Bill of Rights caution.
[41] We uphold Judge Crosbie’s ruling. Even if we had not done so, it is far from clear that the evidence of the threat would have been inadmissible at trial.

(d) Statement read by Inspector Doyle

[42] Mr Miessen said the agreed statement read by Inspector Doyle should not have been read. However, it was read at trial by consent. In effect therefore this is a complaint against trial counsel. We will deal with it later in that context.

(e) Failure to give Bill of Rights advice and caution

[43] Mr Miessen also said there had been a breach of the Bill of Rights or the Judge’s Rules after he made the statement which was the foundation for the charge of threatening to kill, because he was not arrested until some time later and not given a caution. We can see nothing in this argument: even if Mr Miessen were correct, he said and did nothing after the actual threat was made which was used as evidence to support the Crown case as to the making of the threat. The exclusion of evidence of events after the threat was made would not have therefore made any difference to the outcome of the trial.

(f) Constable Brady’s evidence

[44] Mr Miessen was strongly critical of the evidence of Constable Brady. He said that there were inconsistencies between what the Constable recorded in his notebook, what he later recorded in his job sheet and what he said in evidence. He said there was a lack of precision in the evidence of Constable Brady as to what the appellant actually said, and he was critical of the fact that Constable Brady had not recorded the "Hillary Clinton" analogy, but had given evidence referring to it at trial.
[45] As indicated earlier, issues of reliability and credibility are for the jury. It was up to the jury to determine what weight it would give to the evidence of Constable Brady, and it is not open to this Court on appeal to second-guess the jury’s assessment.

(g) Constable Thoroughgood’s evidence

[46] Mr Miessen said that Constable Thoroughgood’s evidence ought to have been in front of the jury. He said that Constable Thoroughgood’s evidence was more reliable than that of any of the other police officers because he was constantly with Mr Miessen during the events of 17 July and was taking notes. He pointed to Constable Thoroughgood’s evidence at the s 344A hearing, and said that if this evidence had been given at trial it would have assisted the defence case. He was critical of the Crown for not calling Constable Thoroughgood, and also critical of his trial counsel for not calling the Constable as a defence witness.
[47] There was no obligation on the Crown to call Constable Thoroughgood. There was nothing in the evidence which the Constable gave at the deposition hearing which was required to prove the Crown case. The Constable did not say anything in his evidence at the s 344A hearing about the actual threat which was the foundation of the charge. He was asked in cross-examination whether Mr Miessen had said anything to him about the Prime Minister, to which he answered no. He was then asked if he had heard Mr Miessen saying anything to anyone else about the Prime Minister, to which he responded that he had heard her name being mentioned, but that he did not remember the specifics.
[48] Mr Miessen said that he asked his counsel on numerous occasions to ask the Crown to call Constable Thoroughgood or to have the Constable give evidence for the defence. In his submissions in this Court Mr Miessen said he could not explain why the Constable did not end up giving evidence to the jury, but that it amounted to a miscarriage of justice.
[49] This is one aspect of Mr Miessen’s complaint about trial counsel, to which we will return later in this judgment. However, we are satisfied that no miscarriage of justice arose from the fact that the jury did not hear Constable Thoroughgood’s evidence. It is true that, unlike Senior Sergeant Parker, Constable Thoroughgood had not heard repeated references to the Prime Minister. But there is no indication that he was in the presence of Mr Miessen at the time that Senior Sergeant Parker said the threat was made, and therefore no necessary conflict between his evidence and Senior Sergeant Parker’s evidence on the particular incident which led to the charge against Mr Miessen. At best his evidence was contextual, outlining the tense exchanges between Mr Miessen and the police during the 17 July events.

(h) Senior Sergeant Parker’s evidence

[50] Mr Miessen submitted that the Senior Sergeant’s evidence was highly unreliable and should have properly been rejected by the jury. Again, this submission is based on a misunderstanding of the role of an appellate Court. It is not for the Court to say that the jury was wrong in its assessment of the credibility and reliability of a particular witness. The question on appeal is whether the jury could reasonably have reached the verdict it did, having regard to the evidence before it. The jury was entitled to accept the evidence of Senior Sergeant Parker, notwithstanding the many criticisms of it which were made at the trial by Mr Miessen’s counsel. Those criticisms are recorded and summarised in the Judge’s summing up so the jury was well aware of them.

(i) Senior Constable Seal’s evidence

[51] Mr Miessen criticised Senior Constable Seal’s evidence. He said the jury should have rejected it. Mr Miessen pointed out that Senior Constable Seal arrived at the Akaroa property later than his colleagues and accordingly could not contextualise the comments he heard Mr Miessen make. Senior Constable Seal’s account that the Mr Miessen was very agitated was said to contradict the evidence of Constables Thoroughgood and Brady who said Mr Miessen’s demeanour had calmed by the time of Senior Constable Seal’s arrival. This, Mr Miessen submitted, demonstrated the unreliability of the evidence.
[52] Once again, the assessment of the demeanour of witnesses is a matter for the jury. We are not in a position to second-guess the judgment the jury made in respect of Senior Constable Seal’s credibility and reliability.

(j) Conduct of trial counsel

[53] Mr Miessen said that the conduct of his defence by his trial counsel was deficient in a number of respects. He said his counsel was under considerable stress during the conduct of the case, and had withdrawn from the case a week after sentencing and then retired from practice. As noted earlier, the consideration of this ground of appeal is against a background that we do not have sworn evidence before us from Mr Miessen or his counsel about the conduct of the defence. No waiver has been filed by Mr Miessen which would allow his counsel to give evidence.
[54] That does not prevent us from considering Mr Miessen’s concerns about his trial counsel altogether, but we need to be cognisant of the fact that we have only one side of the story, and that is provided to us only in submission rather than in a sworn statement. We do not see that, however, as prejudicing our ability to consider Mr Miessen’s key complaints about evidence not being placed before the jury. As was noted by Gault J in giving judgment on behalf of himself, Keith J and Blanchard J in R v Sungsuwan [2006] 1 NZLR 730 9 at [68]:

Often these cases will be able to be analysed without examining the quality of counsel’s conduct. For example, where the effect was that vital evidence was not placed before the jury it might be appropriate to enquire directly whether that gave rise to a miscarriage of justice...

[55] We have already considered that the criticism relating to Constable Thoroughgood’s evidence at [46] - [49] above. We now turn to the other criticisms.

(i) Evidence of Dr Marks

[56] Mr Miessen said that the Crown prosecutor advised at the s 344A hearing that the Crown would not be calling Dr Marks to give evidence at the trial, and that Dr Marks would be overseas at the time of the trial. Mr Miessen said he told his counsel that he considered Dr Marks’ evidence to be crucial especially in the light of evidence contained in a brief of evidence of Martin Doyle, and the similar evidence of another former colleague, Wayne Hausman. Mr Miessen said this could have been organised before the trial and before Dr Marks went overseas. He said his counsel did not pursue this and his counsel never explained why not.
[57] In support of this ground of appeal Mr Miessen asked us to rely on the affidavit from Mr Doyle (see [4] above). Mr Doyle deposes to his own experience of frustration in dealing with the police hierarchy, the effect of his undercover work on his mental health and his consultations with Dr Marks. He gives evidence of what Dr Marks said to him about Dr Marks’ interview with Mr Miessen in July 2004 and the police’s actions resulting from it on 17 July 2004.
[58] We doubt that Mr Doyle’s affidavit meets the test for admissibility set out in R v Bain [2004] 1 NZLR 638 at [22]. In any event, we do not think it is of assistance in evaluating this ground of appeal. The issue for us is whether evidence from Dr Marks would have made such a difference at trial that the fact that this evidence was not adduced has led to a miscarriage of justice. We do not have a clear indication as to what Dr Marks would have said if he had given evidence. We proceed on the assumption that Mr Miessen would have given consent to Dr Marks giving evidence about his consultations with Mr Miessen, and that Dr Marks would have said in evidence what he told police on 16 July 2004 (see [7] above). If that had happened, Dr Marks would have been able to say exactly what Mr Miessen had said to him that led Dr Marks to contact the police. This would have established that the remarks made to Dr Marks were not, in themselves, seen as genuine threats to kill the Prime Minister, but nevertheless they were obviously remarks of sufficient seriousness to cause Dr Marks to contact the police about them.
[59] We do not think that this evidence would have had a significant bearing on the course of the trial because the jury was told (by agreement with the defence) that the police had gone to Mr Miessen’s property on 17 July to take possession of his firearms and his firearms licence because of comments allegedly made by Mr Miessen. It is hard to see how it would have improved Mr Miessen’s case if the nature of those comments and the context in which they were made had been made known to the jury. What Mr Miessen was charged with was a single threat made to the Prime Minister at the end of the events on 17 July. The background to the police’s presence at his property was of peripheral relevance to that particular incident, and could not realistically have changed the jury members’ perception of the evidence they heard as to the events on the day in question.
[60] Mr Doyle’s evidence was that Dr Marks had said to him that he thought the police had reacted in a heavy-handed manner to the information Dr Marks had provided to the police about Mr Miessen, and that Dr Marks was disturbed and annoyed by that. Even if Dr Marks had said this at trial (and there is no evidence before us that he would have) we do not consider that this would have changed the jury’s assessment of the evidence of the police officers who were present on 17 July as to the nature of the threats made by Mr Miessen.
[61] It is clear that Mr Miessen believes that the AOS presence at his property on 17 July was an overreaction to his remarks to Dr Marks. On Mr Doyle’s version of events, Dr Marks may have shared that view. But that was not an issue that was of significance to the matters which the jury had to decide. Whether the AOS ought to have been deployed was a matter for the police, not the jury. What the jury had to decide was whether the particular threat described by Senior Sergeant Parker and other officers amounted to an offence under s 306(1)(a) of the Crimes Act. The focus of their attention was, therefore, on what was said and done on 17 July, not matters which proceeded those events.
[62] In our view, the fact that Dr Marks did not give evidence is not a material matter in the context of the issues which the jury had to determine. Even if Dr Marks had said all of the things suggested by Mr Doyle, it could not logically have affected the jury’s verdict. Accordingly we are satisfied that no miscarriage of justice arose.

(ii) Inspector Doyle’s evidence

[63] Mr Miessen said his counsel should not have agreed to the statement read by Inspector Doyle at the beginning of the trial (see [23](a) above). This was on the basis that his counsel should have insisted on Dr Marks giving evidence. We have dealt with that argument above.

(iii) Appeal against s 344A Ruling

[64] Mr Miessen said he instructed his counsel to appeal against the s 344A ruling by Judge Crosbie, but this was not pursued. As we have now considered the merits of that ruling and determined that there are no grounds for appellate interference with it, the failure to appeal pre-trial cannot have affected the outcome of the trial.

(iv) Not calling Mr Miessen

[65] Mr Miessen said he instructed his trial counsel to conduct a full defence with Mr Miessen giving evidence. In effect this is an allegation of a failure by trial counsel to act in accordance with instructions. But, in the absence of evidence on the point, that would allow us to determine whether, in fact, there had been such a failure, we are unable to take this matter further. Mr Miessen also said he instructed his counsel to call other witnesses, but we have no indication what those witnesses would have said and how it could have influenced the trial, so we are unable to take that aspect of the appeal any further as well.

(v) Post trial events

[66] Mr Miessen said his counsel told him after the trial that the Judge had indicated that, if Mr Miessen were to plead guilty to two minor cannabis charges relating to the cannabis found on his property on 17 July, he would be given a small fine, and that he would be convicted and discharged on the charge of threatening to kill. He said in the light of that indication he entered guilty pleas to the cannabis charges and agreed to sentencing taking place immediately. He said he was shocked when he was in fact convicted and discharged of the cannabis charges but sentenced to come up in one year if called upon on the threatening charge. He said this worked unfairly against him, and due to expiry of time limits he has now been denied the opportunity to vacate his guilty pleas to the drug charges.
[67] We do not have before us any appeal in relation to the drugs charges and no appeal against sentence, and none of these complaints relate to the present convictions. We therefore say no more about them.

Result

[68] None of the grounds of appeal put forward by Mr Miessen has succeeded. We therefore dismiss the appeal against conviction.

Solicitors:
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/163.html

[5]	The allegation of threatening to kill the Prime Minister arose from events which occurred on 17 July 2004. Before summarising those events, we will first deal with the background to the events of that day.
[6]	Mr Miessen claims that his work as an undercover police officer led to drug dependency which, in turn, affected his mental health. On 13 July 2004 Mr Miessen went to see a police psychiatrist, Dr A B Marks. In the course of the consultation, Mr Miessen told Dr Marks about feelings he harboured towards the police and the Government, and his frustration that Court proceedings on behalf of former undercover police officers against the Crown had not come to a hearing. He said he had considered "doing something" to the Prime Minister for many years and had managed to get close to her on a couple of occasions. He told Dr Marks that he had a number of firearms at his home at Akaroa. Dr Marks spoke to Mr Miessen again by telephone on 14 July 2004. During that conversation Mr Miessen mentioned that the Prime Minister would be visiting Waimate on 17 July 2004. He told Dr Marks he did not plan to assault Ms Clark at Waimate but said that was not definite. Dr Marks said he did not obtain indications from Mr Miessen that he intended to assault or kill Ms Clark on the following weekend (i.e. when she was to be in Waimate).
[7]	Dr Marks decided to report these matters to the police. He considered that Mr Miessen was not a fit and proper person to possess firearms, and that he was capable of harming the Prime Minister. He reported to the police on 16 July 2004. He did not give evidence at Mr Miessen’s trial, but a transcript of his interview with the police on 16 July 2004 was disclosed to the defence and was in evidence before us. That transcript is the source of the summary set out above.

[8]	Having received information from Dr Marks, the police initiated an Armed Offenders Squad (AOS) operation at Mr Miessen’s home at Akaroa. The operation commenced at 7.00am. The police decided to lure Mr Miessen away from his home (before confronting him). To achieve this, one of the police officers, Constable Thoroughgood, approached Mr Miessen’s house dressed in tramping clothes. He knocked on the door and, when it was answered, told Mr Miessen that he had been tramping with his girlfriend and that she had fallen over and broken her leg. He sought assistance. Mr Miessen agreed to help him and he and Constable Thoroughgood rode on Mr Miessen’s quad bike to a point about 150 meters away from the house. The Constable then signalled to four other members of the AOS, including two police dog handlers, and they came out of hiding and approached Mr Miessen. Constable Thoroughgood removed the keys from the quad bike, told Mr Miessen that he was a police officer, and said that he was there to serve on Mr Miessen a notice revoking Mr Miessen’s firearms licence. He also said that the police intended to seize Mr Miessen’s firearms. He handed the revocation notice to Mr Miessen and showed him a search warrant issued under s 61 of the Arms Act 1983.
[9]	Mr Miessen was upset by this. He became abusive. Constable Thoroughgood was not a witness at the trial, but gave evidence at a s 344A hearing before Judge Crosbie, to which we will refer later. Constable Thoroughgood said Mr Miessen became very agitated and swore at the police officers when it became apparent what was happening. He described Mr Miessen as "pacing around freely yelling about the police and past injustices, which had been measured out against him".
[10]	The Constable said Mr Miessen agreed to go with the police officers back to the house to collect his firearms and ammunition. They walked back to the house, and at one point Mr Miessen stopped walking suddenly. A police dog jumped on Mr Miessen’s back, and he was later given medical attention for the resulting injury. Mr Miessen co-operated with the police in accessing his firearms and ammunition and pointed out to them some cannabis he had in his possession.
[11]	Constable Thoroughgood said that Mr Miessen’s demeanour changed rapidly during this period from being calm to being agitated and back again. The Constable did not mention any threat being made by Mr Miessen. He said Mr Miessen did not say anything to him about the Prime Minister, though he heard her name being mentioned when Mr Miessen was talking to others. However he did not remember any specifics.
[12]	The Crown case was based substantially on the evidence of the officer in charge of the operation on 17 July 2004, Senior Sergeant Parker. In his evidence at the trial, Senior Sergeant Parker described Mr Miessen’s demeanour during the police operation as agitated and angry, although he said Mr Miessen had been co-operative with the police. The Senior Sergeant said that Mr Miessen was abusing police, but the main thrust of what he was saying was that he was going to, or he wanted to, strangle the Prime Minister and break her neck. He said that Mr Miessen said that probably 14 to 15 times throughout the morning in slightly different variations.
[13]	When asked about his reaction to that, the Senior Sergeant responded:

[15]	The Senior Sergeant also accepted that he had not recorded in a job sheet made at the time that there had been a change in the nature of Mr Miessen’s comments which had led him to conclude that Mr Miessen had now crossed the line, necessitating arrest. Nor was there any reference to Mr Miessen saying he would go to Waimate to attempt to strangle the Prime Minister.
[16]	At the end of his cross-examination, the Senior Sergeant was asked why he had not, in his evidence in chief, mentioned Mr Miessen’s comment that he wanted to wring the Prime Minister’s neck like Hillary wanted to wring Bill’s. He answered that he could not have told the jury the specifics of every single thing that was said, but that he had given "a generalisation of what he [Mr Miessen] said over that period of time".
[17]	The number of times the appellant mentioned the Prime Minister during the incident on 17 July was a matter of dispute, and there were different versions given by different witnesses.
[18]	After the statements referred to by Senior Sergeant Parker, which were the basis for the charge, were made, the Senior Sergeant directed another officer, Constable Boddy, to arrest the appellant for threatening to kill. There was a dispute as to the basis for this arrest, to which we will return later in this judgment.

[19]	Mr Miessen’s trial counsel indicated an intention to challenge the admissibility of the evidence of the statements made by Mr Miessen during the 17 July incident on the basis that a breach of the New Zealand Bill of Rights Act 1990 (Bill of Rights) had occurred. The Crown therefore made an application under s 344A of the Crimes Act for a ruling on the admissibility of that evidence. That application was heard and determined by Judge Crosbie.
[20]	The Judge heard evidence from Constable Thoroughgood, Senior Sergeant Parker, Constable Boddy and Mr Miessen. The contention on the part of the defence was that Mr Miessen was detained at the time that the threats which founded the charge were made, and had not been cautioned as required under the Bill of Rights. Thus, it was argued, the statements which founded the charge against Mr Miessen should not be admitted in evidence.
[21]	The Judge made factual findings against Mr Miessen. He rejected Mr Miessen’s evidence that there was always someone next to him at arm’s length as he walked around the property. He found that, although Mr Miessen was complying with instructions, he was always in control, and was not concerned about the situation in which he found himself. The Judge also found that Mr Miessen understood his rights under the Bill of Rights and had elected not to invoke them. He accepted the police officers’ evidence that their purpose was to seize Mr Miessen’s firearms and ammunition, and that once this had been done the police position had relaxed by the time the threats were made.
[22]	The Judge applied the mixed objective/subjective test for determining whether a person is detained as outlined by Blanchard J in R v M [1995] 1 NZLR 242 at 245, and, on the basis of his factual findings, concluded that Mr Miessen was not detained. The Judge also determined, that, if he were wrong in determining that there was no breach of the Bill of Rights, he would have found the statements made by Mr Miessen admissible on the basis of the balancing test in R v Shaheed [2002] 2 NZLR 377.

[26]	Mr Miessen submitted that the verdict was unreasonable and could not be supported having regard to the evidence. He said the evidence of Senior Sergeant Parker and Senior Constable Seal was unreliable and inconsistent in various respects, and should have been discounted by the jury. In relation to Senior Sergeant Parker, he emphasised two concessions made by the Senior Sergeant in cross-examination. The first was that he had provided only a generalisation of what Mr Miessen had said over a period of time ([16] above). The second was that he had not recorded in a contemporaneous job sheet that Mr Miessen had changed in demeanour and that what he said at the critical time had crossed the line, necessitating arrest ([15] above).
[27]	In order for the appellant to succeed on this ground of appeal, the Court must be of the view that a jury acting reasonably must have entertained a reasonable doubt as to guilt. It is not enough for the Court to simply disagree with the jury’s verdict: R v Ramage [1985] 1 NZLR 392 at 393. Matters relating to the reliability of the evidence given by particular witnesses are for the jury to determine, in the light of the submissions made by counsel and the Judge’s summing up.
[28]	The matters which Mr Miessen now raises as indicia of unreliability on the part of the key Crown witnesses were matters which were before the jury. The jury accepted the police officers’ evidence. We cannot say that it was unreasonable for the jury to have done so.

[30]	As noted at [23](a) above, Inspector Doyle in fact said that the information received by the police concerned "comments" allegedly made by Mr Miessen about the Prime Minister, not "threats". Crown counsel on the appeal, Mr Thomas, rightly accepted that the Crown prosecutor had been in error in referring to threats in his opening address.
[31]	Mr Miessen said the reference to threats unfairly and unjustly influenced the minds of the jury members, and led to their forming a bias against him. He said there was, in fact, no credible threat made, nor was there any evidence that such a threat had been made during his consultation with Dr Marks.
[32]	Mr Miessen said that the damage caused by the prosecutor’s reference to "threats" was accentuated by media reports of the prosecutor’s opening address during the course of the trial.
[33]	The prosecutor should have been more careful in his choice of words, and ensured that the words used in his opening were consistent with the evidence to be given. But we do not consider that the use of the term "threats" in the opening address has led to a miscarriage of justice. The issue for the jury was whether the particular threat described by Senior Sergeant Parker and Senior Constable Seal was made by the appellant on 17 July. The background to the police’s presence at Mr Miessen’s property on 17 July was not central to that issue.
[34]	Nor do we believe that the media coverage would have led to a miscarriage in the circumstances of the case. The trial Judge referred to the media coverage at the beginning of his summing up and reminded the members of the jury not to allow themselves to be influenced in any way by that coverage.
[35]	It was apparent to the jury from the evidence they heard that the appellant had a considerable grievance with the Government, and in particular, concern about the refusal of the Government and the Prime Minister to pay compensation to Mr Miessen and other undercover agents who claim to have suffered problems as a result of their service. The jury heard of the appellant’s anger on 17 July when confronted by the police and the outbursts which followed. In the context of that information, the mis-description of the appellant’s prior comments as "threats" did not, in our view, carry any real danger that the jury would have been swayed to count the prior conduct against the appellant, given that the Judge expressly directed the jury to ignore the media reports and not to treat counsel submissions as evidence.

[36]	Mr Miessen said that the decision made by Judge Crosbie at the s 344A hearing was wrong, and that this had led to a miscarriage of justice. There was no appeal against the s 344A decision before the trial, but Mr Miessen said this was because of a failure of his counsel to seek leave to appeal when instructed to do so. We will deal with that contention later.
[37]	As indicated at [22] above, Judge Crosbie found on the facts that Mr Miessen was not detained prior to his arrest by Constable Boddy. That meant that there was no requirement that he be cautioned in terms of the Bill of Rights. That in turn meant there was no basis for the argument that evidence of the statements he made which founded the charge against him was inadmissible.
[38]	Mr Miessen attacked the factual findings made by Judge Crosbie, in particular the Judge’s observation that Mr Miessen was "in control" during the incident, that he was aware of his rights and that he was not detained.
[39]	The difficulty the appellant faces is that Judge Crosbie made factual findings which inevitably led to his finding that there was no detention. While Mr Miessen obviously disagrees strongly with those factual findings, they were open to the Judge on the evidence before him, and there is no proper basis for appellate interference with them.
[40]	Challenges to the admissibility of evidence obtained in circumstances where an accused person’s rights under the Bill of Rights have been breached usually relate to evidence of an inculpatory statement by an accused person in relation to prior offending or evidence obtained as a result of unlawful and/or seizure. That is not the case here. Rather, the evidence which the appellant sought to have excluded was an eye witness account of the actus reus of the alleged offence itself: the saying of the words which were said to constitute a threat to the Prime Minister’s life. It is hard to see why a breach of the Bill of Rights, even if one had occurred, would lead to the exclusion of evidence of the actual commission of an offence. If, for example, an accused person who is detained commits an assault, that person may have a defence (such as self defence or defence of a dwelling house), but he or she would not be entitled to have the evidence in the form of an eye witness account of the actual assault taking place excluded because the police had not given a required Bill of Rights caution.
[41]	We uphold Judge Crosbie’s ruling. Even if we had not done so, it is far from clear that the evidence of the threat would have been inadmissible at trial.

[46]	Mr Miessen said that Constable Thoroughgood’s evidence ought to have been in front of the jury. He said that Constable Thoroughgood’s evidence was more reliable than that of any of the other police officers because he was constantly with Mr Miessen during the events of 17 July and was taking notes. He pointed to Constable Thoroughgood’s evidence at the s 344A hearing, and said that if this evidence had been given at trial it would have assisted the defence case. He was critical of the Crown for not calling Constable Thoroughgood, and also critical of his trial counsel for not calling the Constable as a defence witness.
[47]	There was no obligation on the Crown to call Constable Thoroughgood. There was nothing in the evidence which the Constable gave at the deposition hearing which was required to prove the Crown case. The Constable did not say anything in his evidence at the s 344A hearing about the actual threat which was the foundation of the charge. He was asked in cross-examination whether Mr Miessen had said anything to him about the Prime Minister, to which he answered no. He was then asked if he had heard Mr Miessen saying anything to anyone else about the Prime Minister, to which he responded that he had heard her name being mentioned, but that he did not remember the specifics.
[48]	Mr Miessen said that he asked his counsel on numerous occasions to ask the Crown to call Constable Thoroughgood or to have the Constable give evidence for the defence. In his submissions in this Court Mr Miessen said he could not explain why the Constable did not end up giving evidence to the jury, but that it amounted to a miscarriage of justice.
[49]	This is one aspect of Mr Miessen’s complaint about trial counsel, to which we will return later in this judgment. However, we are satisfied that no miscarriage of justice arose from the fact that the jury did not hear Constable Thoroughgood’s evidence. It is true that, unlike Senior Sergeant Parker, Constable Thoroughgood had not heard repeated references to the Prime Minister. But there is no indication that he was in the presence of Mr Miessen at the time that Senior Sergeant Parker said the threat was made, and therefore no necessary conflict between his evidence and Senior Sergeant Parker’s evidence on the particular incident which led to the charge against Mr Miessen. At best his evidence was contextual, outlining the tense exchanges between Mr Miessen and the police during the 17 July events.

[56]	Mr Miessen said that the Crown prosecutor advised at the s 344A hearing that the Crown would not be calling Dr Marks to give evidence at the trial, and that Dr Marks would be overseas at the time of the trial. Mr Miessen said he told his counsel that he considered Dr Marks’ evidence to be crucial especially in the light of evidence contained in a brief of evidence of Martin Doyle, and the similar evidence of another former colleague, Wayne Hausman. Mr Miessen said this could have been organised before the trial and before Dr Marks went overseas. He said his counsel did not pursue this and his counsel never explained why not.
[57]	In support of this ground of appeal Mr Miessen asked us to rely on the affidavit from Mr Doyle (see [4] above). Mr Doyle deposes to his own experience of frustration in dealing with the police hierarchy, the effect of his undercover work on his mental health and his consultations with Dr Marks. He gives evidence of what Dr Marks said to him about Dr Marks’ interview with Mr Miessen in July 2004 and the police’s actions resulting from it on 17 July 2004.
[58]	We doubt that Mr Doyle’s affidavit meets the test for admissibility set out in R v Bain [2004] 1 NZLR 638 at [22]. In any event, we do not think it is of assistance in evaluating this ground of appeal. The issue for us is whether evidence from Dr Marks would have made such a difference at trial that the fact that this evidence was not adduced has led to a miscarriage of justice. We do not have a clear indication as to what Dr Marks would have said if he had given evidence. We proceed on the assumption that Mr Miessen would have given consent to Dr Marks giving evidence about his consultations with Mr Miessen, and that Dr Marks would have said in evidence what he told police on 16 July 2004 (see [7] above). If that had happened, Dr Marks would have been able to say exactly what Mr Miessen had said to him that led Dr Marks to contact the police. This would have established that the remarks made to Dr Marks were not, in themselves, seen as genuine threats to kill the Prime Minister, but nevertheless they were obviously remarks of sufficient seriousness to cause Dr Marks to contact the police about them.
[59]	We do not think that this evidence would have had a significant bearing on the course of the trial because the jury was told (by agreement with the defence) that the police had gone to Mr Miessen’s property on 17 July to take possession of his firearms and his firearms licence because of comments allegedly made by Mr Miessen. It is hard to see how it would have improved Mr Miessen’s case if the nature of those comments and the context in which they were made had been made known to the jury. What Mr Miessen was charged with was a single threat made to the Prime Minister at the end of the events on 17 July. The background to the police’s presence at his property was of peripheral relevance to that particular incident, and could not realistically have changed the jury members’ perception of the evidence they heard as to the events on the day in question.
[60]	Mr Doyle’s evidence was that Dr Marks had said to him that he thought the police had reacted in a heavy-handed manner to the information Dr Marks had provided to the police about Mr Miessen, and that Dr Marks was disturbed and annoyed by that. Even if Dr Marks had said this at trial (and there is no evidence before us that he would have) we do not consider that this would have changed the jury’s assessment of the evidence of the police officers who were present on 17 July as to the nature of the threats made by Mr Miessen.
[61]	It is clear that Mr Miessen believes that the AOS presence at his property on 17 July was an overreaction to his remarks to Dr Marks. On Mr Doyle’s version of events, Dr Marks may have shared that view. But that was not an issue that was of significance to the matters which the jury had to decide. Whether the AOS ought to have been deployed was a matter for the police, not the jury. What the jury had to decide was whether the particular threat described by Senior Sergeant Parker and other officers amounted to an offence under s 306(1)(a) of the Crimes Act. The focus of their attention was, therefore, on what was said and done on 17 July, not matters which proceeded those events.
[62]	In our view, the fact that Dr Marks did not give evidence is not a material matter in the context of the issues which the jury had to determine. Even if Dr Marks had said all of the things suggested by Mr Doyle, it could not logically have affected the jury’s verdict. Accordingly we are satisfied that no miscarriage of justice arose.