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R v Harris [2006] NZCA 203 (9 August 2006)

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R v Harris [2006] NZCA 203 (9 August 2006)

Last Updated: 15 August 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA420/05

THE QUEEN

v

LEE ANTHONY HARRIS

Hearing: 29 June 2006

Court: Chambers, John Hansen and Potter JJ

Counsel: C Nicholls for Appellant
K B F Hastie for Crown

Judgment: 9 August 2006 at 11 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant must report to the Masterton Community Probation Service on or before 11 August 2006 to resume his sentence of community work.

REASONS OF THE COURT

(Given by John Hansen J)

[1] On 3 June 2005, following trial in the Wellington District Court before Judge Behrens QC and a jury, the appellant was convicted on a charge of demanding with menaces.

Background

[2] The appellant maintained that a trailer, owned by a family trust, was stolen. He came into possession of information that suggested the son of the complainant may be responsible.
[3] At about 1.45pm on 26 October 2004 the appellant went to the complainant’s address in High Street, Carterton. Also present was the complainant’s partner, Theresa Cassidy. It is common ground they both knew the appellant, although there is a dispute as to the extent of the relationship.
[4] When the complainant came to the door the appellant allegedly stated to him that he "had it on good authority that Nicholas [the complainant’s son] stole [his] trailer". The Crown case was that the complainant told the appellant to speak to the son about the matter, at which point Ms Cassidy arrived at the door. It is alleged that the appellant said he was not going to see the son, and that he told the complainant that he "wanted $3,000 or I am going to firebomb your cars, firebomb your house" and then he was going to "pick members of" the complainant’s family "off one by one". This demand was apparently repeated. The complainant, fearing for his family’s safety, contacted the police a short time later which led to the appellant’s arrest and, ultimately, trial.
[5] At trial the appellant had a two pronged defence. Firstly, that the threats were never made. Secondly, that in terms of s 239 of the Crimes Act 1961 he had an honest belief in his right to demand $3,000 from the complainant.
[6] The strategy at trial was that the appellant would not give evidence. Evidence was to be adduced from a Ms Bennett as to the theft of the trailer and of her making a complaint of that theft to the police. However, she was not available to give evidence.
[7] It was also intended to demonstrate that there was a close relationship between the appellant and the complainant, which explained why the approach was made to the complainant rather than the alleged thief.
[8] Evidence of the relationship between the appellant and the complainant was to be given for the defence by a Ms Franklin.
[9] Finally, it was intended to show by cross-examination of the police officer that a complaint of theft had been made to the police. This was to be supported by the evidence of the appellant’s daughter, who gave evidence of publishing an advertisement in relation to the missing trailer.
[10] The appeal against conviction is brought on the ground of counsel error and a resultant miscarriage of justice.

Submissions

[11] For the appellant Mr Nicholls complained of three events that led to an unfair trial and, therefore, a miscarriage of justice. The first was that trial counsel failed to adequately prepare and/or seek an adjournment. This related to whether or not a complaint had been made to the police about the stolen trailer. The second was a failure to lead evidence from Sharyn Dawn Loader, the appellant’s daughter, as to a conversation she had with her father as to why he was going to approach the complainant, rather than the son, in relation to this trailer. Finally, it is said there was an error in not pursuing an application to call the evidence of Ms Franklin.
[12] For the Crown, Ms Hastie submitted that Detective Foote had been cross-examined at depositions about a formal complaint in relation to the trailer, where he stated he had been unable to locate any file. Accordingly, it was submitted that well prior to trial the appellant was aware of the lack of evidence confirming a complaint was made.
[13] Further, Ms Hastie submitted that any additional evidence led from Ms Loader would have been inadmissible. Finally, it was submitted that the omission to call Ms Franklin did not constitute counsel error affecting the outcome of the trial. This was because there was ample evidence before the jury to show there was a closer relationship between the appellant and the complainant than the complainant was prepared to admit to.
[14] For the sake of completeness we should add that a further ground emerged during the course of the hearing. It was not one advanced in the written material. Effectively it is a complaint that when the evidence did not unfold as the appellant hoped, trial counsel should have sought specific instructions to confirm whether or not the appellant would give evidence.

Discussion

[15] The approach to trial counsel error is that set out by the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730:

[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[16] It is therefore necessary to determine whether, on the matters raised by the appellant, justice has miscarried.

Failure to adequately prepare and/or seek an adjournment

[17] This alleged failure relates to material faxed to counsel the day before trial dealing with the trailer registration and whether a complaint of theft had been made to the police.
[18] We do not think there is any possibility of miscarriage arising from these issues. In his affidavit filed in support of this appeal the appellant annexes the documents said to have been received by trial counsel the day before the trial. There is no explanation in the appellant’s affidavit or counsel’s submissions of these various documents. However, as we understand them, they relate to the details of trailers registered to the appellant in the Wanganui computer system.
[19] However, they do not take the matter any further in establishing whether or not a complaint had been made to the police. The appellant alleges that he gave the registration details to Ms Bennett and instructed her to make a complaint to the police. At trial Ms Bennett could not be located. Some time has passed and there is no material from Ms Bennett before the Court. The appellant’s affidavit is silent as to what efforts have been made to locate either Ms Bennett, or a formal complaint within the police system.
[20] Indeed, the affidavit sworn by the appellant’s daughter would seem to us to count against a formal complaint having been received. In that affidavit she states:

5. After the Trial I received in the mail a letter from the Transport Registry Centre about the trailer that had been stolen advising the trailer would be de-registered. I was the contact person for the Trust who owned the trailer. After receiving the letter I then contacted the Transport Registry Centre and advised them that the trailer had been stolen and I was told it wasn’t on the stolen list. I then took the letter from the Transport Registry Centre to Rick Joblin of the Masterton Police. I haven’t been able to get the letter back so cannot annex it to this affidavit.

[21] The fact that the trailer was not on the Transport Registry Centre stolen list would suggest that no formal complaint had been received by the police. Ms Loader does not elucidate on the relevance of taking the letter to Mr Joblin at the Masterton police station.
[22] There is nothing in the material advanced by the appellant to establish that a formal complaint had been made to the police, even though Detective Foote was under a misapprehension as to the correct registration number.
[23] In any event, we see nothing in the point. There could really be no doubt that the trailer had been stolen. Well before the incident with which the appellant was charged the daughter, Ms Loader, had placed an advertisement in the Wairarapa Times Age relating to the theft of a trailer with the registration number A2554. That was placed on 25 June 2003, and a copy was produced as Exhibit A. While it is true that Detective Foote had found no record of theft having been advised to the police because he did not look at the correct registration number, there was really no dispute in front of the jury as to the theft of the trailer. Further, this was accepted by Mr Barr for the Crown in his closing address. The Crown’s case was that, even accepting the trailer was stolen, that was no excuse for the appellant to go and demand payment from the father of the alleged thief.

Failure to lead evidence from Ms Loader of a conversation with the appellant as to the reasons why he approached the complainant

[24] In his police statement the appellant said he decided to approach the complainant because he thought he "could confirm or deny" his belief that the complainant’s son, Nicholas, was responsible for the theft.
[25] He said he expected that his daughter, Ms Loader, would back up this purpose by referring to a conversation in August of 2004. Ms Loader did give evidence at trial, but not on the topic of the alleged conversation with her father. In her affidavit filed on the appeal, Ms Loader has indicated the additional evidence she would have given, if asked. The full extent of what she could have said, with reference to the meeting said to have occurred in August 2004, was:

He told me that he believed Mr Nick Andrews was responsible for the taking of the trailer and that he intended to go and see Nick’s father, Chris, about it to see if he could get it back, because he knew Chris.

[26] The fact the appellant believed Nicholas Andrews had taken the trailer was not in issue at the trial. The appellant said it in his statement, and he also said it to the complainant, as the complainant testified. He also gave reasons for seeing the complainant about the theft which, while not identical to those of the daughter, were very similar. There is no dispute the appellant knew the complainant.
[27] As an out of court statement by someone who elected not to give evidence, the appellant’s statement could not be used as proof of the truth of its contents, namely that that was indeed the appellant’s intention. That was the point of the proposed evidence, and it would have been hearsay on that account. The fact the conversation took place in itself would have been irrelevant.
[28] We see no miscarriage arising from the failure to lead the additional evidence from Ms Loader.

Failure to call Ms Franklin

[29] We now have an affidavit from Ms Franklin. It appears the point of her evidence was to show the relationship between the complainant and the appellant was closer than the complainant was prepared to concede in evidence.
[30] The proposed evidence would have established two things of relevance:

a) That the appellant and complainant were sufficiently close that they shared Christmas dinner in 2000. However, the complainant had accepted that in his evidence.
b) That the appellant and complainant were business associates. However, like the appellant giving evidence, this had a real downside. It is clear from Ms Franklin’s affidavit that the association was, in all likelihood, criminal. As we noted earlier, counsel had established the complainant’s criminal background without the appellant’s being before the jury. Evidence from Ms Franklin would likely have had the effect that the appellant’s criminal background would also have come into evidence.

[31] Ms Franklin’s evidence would have added little of value and carried significant downside risks for the appellant. In any event, there is other evidence which showed the complainant had probably understated the extent of his friendship with the appellant.
[32] In our view no miscarriage of justice has arisen from the decision not to call Ms Franklin.
[33] In the course of the appeal there was said to be an issue that the Judge erred in effectively not permitting the defence to call Ms Franklin to give evidence. However, a perusal of the transcript shows he made no ruling whatever on that. All that occurred was that he expressed a preliminary view about the relevance of her evidence and it was no more than that.

Failure of accused to give evidence

[34] We do not consider any miscarriage arose from the failure to reassess the decision of the appellant to give evidence following the Crown case. The position at the commencement of trial was that the appellant would not give evidence. Before us, neither trial counsel nor the appellant could remember whether there had been a discussion at the end of the Crown case concerning the appellant’s giving evidence. Since the hearing, however, we obtained (as discussed with counsel) a transcript of the exchange between counsel and the Judge at the conclusion of the Crown case and before the opening of the defence case. From that transcript, it is clear that trial counsel asked for "15 minutes" to discuss with his client whether evidence was to be called. The Judge granted that time. In those circumstances, we draw the inference that the question of the appellant’s giving evidence was discussed and that he did not change his earlier instructions. In any event, the relevant evidence was before the jury without the risk of cross-examination. Nothing further could be added except emphasising the close association. We see a very real potential danger for the appellant from over-emphasis on this, given the complainant’s own criminal background, which counsel cleverly got into evidence while avoiding the appellant’s similar background. If the appellant had given evidence, given the contents of his statement, there was every possibility that his background would have become the subject of cross-examination.

Decision

[35] It follows that none of the grounds establish any miscarriage of justice and the appeal against conviction is dismissed. Since the appellant’s sentence of community work has been stayed pending this appeal, we have made an appropriate order requiring him to resume serving that sentence.

Solicitors:
Crown Law Office, Wellington

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[2]	The appellant maintained that a trailer, owned by a family trust, was stolen. He came into possession of information that suggested the son of the complainant may be responsible.
[3]	At about 1.45pm on 26 October 2004 the appellant went to the complainant’s address in High Street, Carterton. Also present was the complainant’s partner, Theresa Cassidy. It is common ground they both knew the appellant, although there is a dispute as to the extent of the relationship.
[4]	When the complainant came to the door the appellant allegedly stated to him that he "had it on good authority that Nicholas [the complainant’s son] stole [his] trailer". The Crown case was that the complainant told the appellant to speak to the son about the matter, at which point Ms Cassidy arrived at the door. It is alleged that the appellant said he was not going to see the son, and that he told the complainant that he "wanted $3,000 or I am going to firebomb your cars, firebomb your house" and then he was going to "pick members of" the complainant’s family "off one by one". This demand was apparently repeated. The complainant, fearing for his family’s safety, contacted the police a short time later which led to the appellant’s arrest and, ultimately, trial.
[5]	At trial the appellant had a two pronged defence. Firstly, that the threats were never made. Secondly, that in terms of s 239 of the Crimes Act 1961 he had an honest belief in his right to demand $3,000 from the complainant.
[6]	The strategy at trial was that the appellant would not give evidence. Evidence was to be adduced from a Ms Bennett as to the theft of the trailer and of her making a complaint of that theft to the police. However, she was not available to give evidence.
[7]	It was also intended to demonstrate that there was a close relationship between the appellant and the complainant, which explained why the approach was made to the complainant rather than the alleged thief.
[8]	Evidence of the relationship between the appellant and the complainant was to be given for the defence by a Ms Franklin.
[9]	Finally, it was intended to show by cross-examination of the police officer that a complaint of theft had been made to the police. This was to be supported by the evidence of the appellant’s daughter, who gave evidence of publishing an advertisement in relation to the missing trailer.
[10]	The appeal against conviction is brought on the ground of counsel error and a resultant miscarriage of justice.

[11]	For the appellant Mr Nicholls complained of three events that led to an unfair trial and, therefore, a miscarriage of justice. The first was that trial counsel failed to adequately prepare and/or seek an adjournment. This related to whether or not a complaint had been made to the police about the stolen trailer. The second was a failure to lead evidence from Sharyn Dawn Loader, the appellant’s daughter, as to a conversation she had with her father as to why he was going to approach the complainant, rather than the son, in relation to this trailer. Finally, it is said there was an error in not pursuing an application to call the evidence of Ms Franklin.
[12]	For the Crown, Ms Hastie submitted that Detective Foote had been cross-examined at depositions about a formal complaint in relation to the trailer, where he stated he had been unable to locate any file. Accordingly, it was submitted that well prior to trial the appellant was aware of the lack of evidence confirming a complaint was made.
[13]	Further, Ms Hastie submitted that any additional evidence led from Ms Loader would have been inadmissible. Finally, it was submitted that the omission to call Ms Franklin did not constitute counsel error affecting the outcome of the trial. This was because there was ample evidence before the jury to show there was a closer relationship between the appellant and the complainant than the complainant was prepared to admit to.
[14]	For the sake of completeness we should add that a further ground emerged during the course of the hearing. It was not one advanced in the written material. Effectively it is a complaint that when the evidence did not unfold as the appellant hoped, trial counsel should have sought specific instructions to confirm whether or not the appellant would give evidence.

[17]	This alleged failure relates to material faxed to counsel the day before trial dealing with the trailer registration and whether a complaint of theft had been made to the police.
[18]	We do not think there is any possibility of miscarriage arising from these issues. In his affidavit filed in support of this appeal the appellant annexes the documents said to have been received by trial counsel the day before the trial. There is no explanation in the appellant’s affidavit or counsel’s submissions of these various documents. However, as we understand them, they relate to the details of trailers registered to the appellant in the Wanganui computer system.
[19]	However, they do not take the matter any further in establishing whether or not a complaint had been made to the police. The appellant alleges that he gave the registration details to Ms Bennett and instructed her to make a complaint to the police. At trial Ms Bennett could not be located. Some time has passed and there is no material from Ms Bennett before the Court. The appellant’s affidavit is silent as to what efforts have been made to locate either Ms Bennett, or a formal complaint within the police system.
[20]	Indeed, the affidavit sworn by the appellant’s daughter would seem to us to count against a formal complaint having been received. In that affidavit she states:

[21]	The fact that the trailer was not on the Transport Registry Centre stolen list would suggest that no formal complaint had been received by the police. Ms Loader does not elucidate on the relevance of taking the letter to Mr Joblin at the Masterton police station.
[22]	There is nothing in the material advanced by the appellant to establish that a formal complaint had been made to the police, even though Detective Foote was under a misapprehension as to the correct registration number.
[23]	In any event, we see nothing in the point. There could really be no doubt that the trailer had been stolen. Well before the incident with which the appellant was charged the daughter, Ms Loader, had placed an advertisement in the Wairarapa Times Age relating to the theft of a trailer with the registration number A2554. That was placed on 25 June 2003, and a copy was produced as Exhibit A. While it is true that Detective Foote had found no record of theft having been advised to the police because he did not look at the correct registration number, there was really no dispute in front of the jury as to the theft of the trailer. Further, this was accepted by Mr Barr for the Crown in his closing address. The Crown’s case was that, even accepting the trailer was stolen, that was no excuse for the appellant to go and demand payment from the father of the alleged thief.

[26]	The fact the appellant believed Nicholas Andrews had taken the trailer was not in issue at the trial. The appellant said it in his statement, and he also said it to the complainant, as the complainant testified. He also gave reasons for seeing the complainant about the theft which, while not identical to those of the daughter, were very similar. There is no dispute the appellant knew the complainant.
[27]	As an out of court statement by someone who elected not to give evidence, the appellant’s statement could not be used as proof of the truth of its contents, namely that that was indeed the appellant’s intention. That was the point of the proposed evidence, and it would have been hearsay on that account. The fact the conversation took place in itself would have been irrelevant.
[28]	We see no miscarriage arising from the failure to lead the additional evidence from Ms Loader.

[29]	We now have an affidavit from Ms Franklin. It appears the point of her evidence was to show the relationship between the complainant and the appellant was closer than the complainant was prepared to concede in evidence.
[30]	The proposed evidence would have established two things of relevance:

[31]	Ms Franklin’s evidence would have added little of value and carried significant downside risks for the appellant. In any event, there is other evidence which showed the complainant had probably understated the extent of his friendship with the appellant.
[32]	In our view no miscarriage of justice has arisen from the decision not to call Ms Franklin.
[33]	In the course of the appeal there was said to be an issue that the Judge erred in effectively not permitting the defence to call Ms Franklin to give evidence. However, a perusal of the transcript shows he made no ruling whatever on that. All that occurred was that he expressed a preliminary view about the relevance of her evidence and it was no more than that.