The Queen v Deverell [2006] NZCA 251 (13 September 2006)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Deverell [2006] NZCA 251 (13 September 2006)

Last Updated: 19 September 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA116/06

THE QUEEN



v



ANDREW MARK DEVERELL

Hearing: 30 August 2006

Court: William Young P, Panckhurst and Ronald Young JJ

Counsel: M R Radford for Appellant
I R Murray for Crown

Judgment: 13 September 2006 at 11am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT
(Given by William Young P)

[1]	On 3 April 2005, a car was driven deliberately into the complainant’s vehicle. A man got out of the first car, went over to the complainant’s car and stabbed the complainant with a knife. Men from the first car also attacked the complainant’s car with weapons. This alarming incident occurred after a pre-arranged fight between members or affiliates of two rival gangs had failed to eventuate. The complainant and the other occupants of his car were associated with one of the gangs and the people in the other car with the other gang.
[2]	The appellant and another man, a Mr Roberts, were tried in the District Court at Timaru on charges arising out of these and associated events. The appellant faced counts of endangering transport, intentionally damaging the complainant’s vehicle, wounding the complainant with intent to cause grievous bodily harm and possessing an offensive weapon, namely a softball bat, at the scene of the incident. He was found guilty of all charges and subsequently sentenced to eight years imprisonment with the Judge (Judge Erber) fixing a minimum period of imprisonment of five years.
[3]	He now appeals against his conviction on the charge of wounding with intent to cause grievous bodily harm and the sentence imposed.

The Crown and defence cases at trial

[4]	The Crown case at trial rested primarily on identification evidence given by James Robinson. He had been in the complainant’s car and had a good view of the incident. He knew the appellant, although not well, and referred to him by the nickname "Dumpy". There was also evidence from the complainant and another witness to the effect that the offender was a large man who may have had a goatee beard, a description which matched the appearance of the appellant.
[5]	The Crown also relied on two other factors. First, the car from which the offender emerged belonged to the appellant. Secondly, the appellant, who had intended to travel overseas on 30 June 2005, brought his travel plans forward and left New Zealand on 8 April 2005.
[6]	When arrested by the police (on his return to New Zealand to attend a funeral) the appellant contented himself with the assertion that the allegations against him were "fairy tales". The appellant did not give evidence at trial. The defence was that Mr Robinson was either lying or at least mistaken in his identification. The best feature of the case, from the point of view of the appellant, was that neither Mr Robinson nor the complainant described the offender as having a tattooed arm but both the appellant’s arms were tattooed.

Subsequent admissions made by the appellant

[7]

While the appellant was awaiting sentence, he acknowledged to the pre-sentence report writer that he had been involved in the incident on 3 April 2005 but maintained that he had not been the person who stabbed the complainant. Consistently with these admissions, he has not appealed against the convictions on the charges of endangering transport, intentional damage and possession of the softball bat.

[8]

The appellant’s acknowledged participation in the incident might be thought to cast a shadow over a number of the arguments advanced in support of the conviction appeal, but we think it best to put this consideration to one side. Guilty or innocent, the appellant was entitled to a fair trial.

The conviction appeal

Overview

[9]	At the end of the argument before us, the live issues on the conviction appeal involved challenges to:

(a) The Judge’s directions to the jury as to the significance of the appellant not giving evidence;
(b) The Judge’s directions to the jury in relation to the significance of the appellant bringing forward his overseas travel;
(c) The appropriateness of questions that the Judge asked of Mr Robinson;
(d) The approach of the Judge to the inability of the complainant and Mr Robinson to refer to tattoos on the arm of the offender.

The Judge’s directions to the jury as to the significance of the appellant not giving evidence

[10]

In his summing up the Judge noted that the appellant was not obliged to call evidence, to give evidence, or to prove or disprove anything at all. He noted that the appellant and his co-accused had exercised their right of silence and that they were entitled to put the Crown to proof. He then indicated that he would return "to this matter a bit later when I deal with the question of identification".

[11]

Later in his summing up, the Judge said this:

[63] Mr Deverell told the police that the allegation was "fairy tales". Mr Roberts said that the identification of him was a mistake and that he was not there. I repeat that neither accused is obliged to give evidence or to prove or to disprove anything. However, when you are considering the submissions of Miss Saunderson-Warner [counsel for the appellant], which were that Mr Robinson made his identification up, i.e. he was lying, or at the very best he was mistaken, you are entitled to ask what support do you find in the evidence for those submissions.
[64] Of course if you were to conclude that Mr Robinson was lying and dishonestly implicating either or both of the accused persons there would be an end to the case and all the verdicts on all the charges must be ones of not guilty.
[65] If, however, you consider Mr Robinson is believable because, for example, [other witnesses] support part of his evidence and important parts of it, then you are entitled to conclude that two people, Mr Deverell and Mr Roberts, could have helped your assessment of the evidence and that they have elected not to do so. For example, you might have learned, had Mr Deverell given evidence, who was driving his car on that day, just for the sake of example.
[66] That decision not to help by giving evidence may, you might think, have an adverse impact on the credibility you can give to Miss Saunderson-Warner’s submissions that Mr Robinson is lying or that he has made a mistake and of course it may have an adverse impact on their general denials to the police of involvement.
[67] I repeat that Mr Deverell and Mr Roberts have the right not to give evidence and should not be found guilty only because they have exercised that right, but the exercise of that right may have an adverse impact on the weight and the worth you attach to the argument on their behalf that the Crown evidence is unsatisfactory and should be rejected.

[12]	Mr Radford, for the appellant, maintained that the Judge had inappropriately invited the jury to use the absence of evidence from the appellant to buttress the identification evidence. He cited R v Griffiths (1985) 1 CRNZ 445 (CA). In similar vein he maintained that the reference to the ability of the appellant and his co-accused to have "helped" the jury in their assessment of the evidence was unfortunate and unfair as it was not the role of the defence to "help". He also complained that the substance of what the Judge said was inconsistent with a pre-trial ruling in which another Judge had held that the Crown could not lead evidence of a failure by the appellant to respond to a notice issued under s 67(1) of the Transport Act 1962 requiring him to identify who was driving his car on the afternoon of the incident.
[13]	The last two of these points have no substance. There is nothing in the complaint about the use of the word "helped". Assuming that comment was justified (as we conclude it was, see [14], below), this word added nothing to the unfair detriment of the appellant. As to the last point, the issue for us is not whether the Judge’s comments were consistent or otherwise with the pre-trial ruling (which is not before us for review) but rather whether they were inappropriate.
[14]	We agree that the defects in identification evidence are not to be made good by taking into account a decision by an accused not to give evidence – a point which is clearly made in Griffiths. But there is no rule in identification cases which excludes the ability of the trial Judge to comment where an accused has not given evidence. That this is so is apparent from the judgment of this Court in R v Hines (No 3) (1998) 16 CRNZ 236. Mr Robinson knew the appellant, albeit not particularly well, and was able to identify him by reference to his nickname. His evidence was supported generally by other less specific identification evidence. The appellant’s defence also involved the apparently remarkable coincidence that Mr Robinson had dishonestly or mistakenly identified the appellant as being one of the offenders and that the appellant’s car was independently shown to have been involved in the incident. So the evidence of identification was sufficiently reliable to put this case in the Hines category. We note in passing that this line of thinking is reflected in [64] and [65] of the Judge’s summing up.
[15]	The absence of evidence from the appellant to contradict the identification evidence, particularly of Mr Robinson, was material to the jury’s assessment of Mr Robinson’s evidence. As well, in deciding what, if any, weight to give to the appellant’s assertion that the allegations against him were "fairy tales", the jury was entitled to have regard to the reality that there was no evidence to support it. That the appellant did not explain who had been driving his car on the afternoon in question was material to the inferences which the jury could draw from the evidence that the offender came out of his car. In this context we see nothing objectionable in the Judge’s directions.

The Judge’s directions to the jury as to the change of travel plans

[16]	On this issue the Judge directed the jury as follows:

[30] There has been some evidence about an altered flight. You heard that Mr Deverell had booked to go to Thailand later in 2005, in June, and you have heard that he suddenly after these events brought his flight forward from June to April, a date just after the incident occurs. The Crown argues that this demonstrates that Mr Deverell had taken part in the fracas and considered that he was in danger of prosecution and so he fled.
[31] Whether this evidence is useful depends on whether you consider that the inference to be drawn from it in the context of all the evidence is that it unequivocally points to Mr Deverell being conscious of guilt in relation to the incident and so decided to make himself scarce.
[32] You should be alert to the fact that bringing the flight forward may not have been done to escape, it may not reflect a guilty mind. It may indicate a fear of being unjustly accused of being involved. That is a possibility.
[33] So it is only if looking at all the evidence as a whole, you can put to one side any other explanation for why Mr Deverell did this and are left with the conviction that it points unequivocally to his consciousness that he was guilty of some crime arising from the incident that it is of value to you.
[34] So if you conclude, looking at the case as a whole, that he decided to make himself scarce after this because he was conscious of having been involved in it in a circumstance which might cause a criminal prosecution against him then that is the only circumstance where this evidence is useful to you. If you cannot reach that conclusion you should put that evidence to one side.

[17]	The primary complaint made by Mr Radford was that the Judge did not adequately instruct the jury to be cautious before drawing an adverse inference and, in particular, that the Judge did not warn the jury against jumping to a conclusion of guilt based on the change of travel arrangements. As well, Mr Radford complained that the Judge’s directions proceeded on the incorrect basis that it was the appellant who changed the travel arrangements (whereas the instructions to the travel agents were in fact given by another person) and that inquiries had been made in February about possible changes.
[18]	We do not agree with Mr Radford’s submissions.
[19]	The principles which govern the admissibility of evidence of flight are similar to those which apply where lies are relied on as an affirmative part of the Crown case, see R v Federici CA394/04 16 June 2005 at [62]. In that case this Court cited R v Cook [2004] NSW CCA 52 12 March 2004 in which it was said that the principles are "identical" (at [50]). It should be recognised that in New Zealand the test for when lies may be used as evidence of guilt is less exacting than the Australian "consciousness of guilt" test. The New Zealand test was expressed in R v Toia [1982] 1 NZLR 555 at 559 (CA) as being whether the lies are "more consistent with guilt than with innocence". On this basis, the Judge's directions at [31] to [33] were conservative.
[20]	It is true that the Judge did not expressly warn the jury not to "jump to the conclusion" that the appellant was guilty because he changed his travel arrangements, and such a warning is, of course, standard in a case of lies. Perhaps such a warning may have been appropriate, but, in the context of what the Judge actually said, its absence is not significant. If not satisfied that the change of travel arrangements pointed unequivocally to a consciousness of guilt, the jury was to put the evidence to one side. The Judge also directed the jury as to the possibility of innocent explanations, including a fear of being unjustly accused of involvement. Assuming, as we must, that the jury followed the Judge’s directions, there is no scope for the jury to have jumped inappropriately to a conclusion of guilt from the evidence of the varied travel arrangements.
[21]	We see nothing in the point that the alterations in the travel arrangements (in terms of who dealt with the travel agent) were not effected by the appellant. This must have been at his direction or with his concurrence because he adhered to the altered arrangements. And likewise the fact that the possibility of change had earlier been mooted but not effected did not appreciably detract from the potential relevance of a change implemented in the immediate aftermath of the stabbing of the complainant.
[22]	Accordingly we see no merit in this aspect of the appeal.

The appropriateness of questions the Judge asked of Mr Robinson

[23]

When Mr Robinson was being cross-examined he acknowledged the possibility that he might have been mistaken in his identifications of both accused. Then, in re-examination, he maintained that he was sure. At the conclusion of his re-examination the trial Judge referred to this conflict of evidence and then went on:

Q Do you see that on the one hand you say that you were sure of the identity of these two persons, and on the other hand you say that to Miss Saunderson-Warner you possibly are mistaken in their identities, is this an actual possibility or a theoretical possibility? Are you sure of your identification?
A I am sure of my identification but because she questioned me about how I know those two people, the jury is not going to know why I haven’t forgotten them from the instances when I first met them. Nine years ago is a ridiculous amount of time to lay an identification on a specific date, but yeah myself I am pretty sure I know exactly who the two men that you just asked about were ... .

There the exchange between the Judge and the witness stopped. The reference to something which had happened nine years ago was not explained in evidence nor, at least in any detail, to us. . There had been an earlier reference by Mr Robinson to his first encounter with the appellant having occurred nine years earlier. This incident may perhaps have involved some offending. If so, that would explain why the matter had not been teased out earlier in evidence and likewise why the point was not further pursued by the Judge.

[24]

It is possible to quibble with the Judge’s choice of language, and in particular the precise question he formulated, "Are you sure of your identification?" But there was an apparent inconsistency between what the witness had said in cross-examination and re-examination and the Judge was entitled to explore that with the witness in an attempt to clear the matter up, if possible. In the end, the answer which the Judge received seems to us to be broadly consistent with the overall drift of Mr Robinson’s evidence, namely that the witness was "pretty sure" of his identifications.

The approach of the Judge to the inability of the complainant and Mr Robinson to refer to tattoos on the arm of the offender.

[25]

As already noted, neither the complainant nor Mr Robinson described the offender’s arm as tattooed, whereas, as at April 2005, both the appellant’s arms were tattooed. The issue had of course been put to both the complainant and Mr Robinson when they were giving evidence. Mr Radford conceded that this point was not a knockout blow for the Crown and the corollary of this concession is that there was an evidential basis for the jury’s conclusion that the appellant stabbed the complainant. In large measure, Mr Radford’s submissions on this aspect of the case instead focused on the way the Judge addressed this question when he was summing up.

[26]

The Judge’s relevant comments as follows:

[60] The focus of Miss Saunderson-Warner’s submissions in relation to identification relates to the tattoos. Mr Deverell clearly has tattoos on his arm, whether it be the right arm or the left arm. Both Mr Thomas and Mr Robinson said that they did not see tattoos on the arm of the man who struck the blow. They did not say the arm of the man that struck the blow did not have any tattoos, what they said was they did not see any.
[61] Miss Saunderson-Warner says that this is an important point, and as I said to you it is one of the foci or perhaps the focus of the defence criticism. You must consider whether the failure by either of those two persons to note that the arm had a tattoo on it affects your consideration of the worth and weight to be placed on Mr Robinson’s evidence in particular.
[62] The defence says that the tattoos were there to be seen and they were not seen and therefore you cannot be sure that Mr Robinson’s evidence is reliable. It is a matter for you. Of course you will, from your own experience, have been involved in a motor collision a near miss at an intersection and you will have heard the drive say to another "I did not see you" but it is perfectly clear that the other driver was there to be seen otherwise there would not have been a collision. It is a matter for you.
(Emphasis added)

[27]	Then, later when reviewing the defence case he recorded Ms Saunderson-Warner’s submission as being:

She submitted to you, of course, and I have emphasised this, that the failure to see tattoos, the failure to see something that was obviously there, was an important failure and tainted the accuracy of Mr Robinson’s evidence.

[28]

Mr Radford’s complaint focused primarily on the passage we have emphasised and his complaint was very much that the Judge had offered an explanation for the fact that the eye-witnesses did not refer to tattoos. In our view the Judge dealt adequately with this issue. The Crown theory on this aspect of the case was obviously consistent with what the Judge said. In any event, his entitlement to comment on the evidence was not restricted to explicit paraphrase of the submissions of counsel.

Conclusion as to conviction appeal

[29]	We are of the view that the various matters which were pursued by Mr Radford on behalf of the appellant do not individually or cumulatively point to there having been a miscarriage of justice.

Sentence appeal

[30]	Mr Radford only challenged the imposition of the minimum period of imprisonment of five years.
[31]	In fixing this component of the sentence the Judge said:

[37] In considering whether a non-parole period should be imposed I have to consider whether release after one-third of the sentence has been served would be insufficient for the purposes of holding you accountable for your behaviour, deterrence, denunciation and protection of the public.
[38] There seems to be some settling down in our attitude but that is about as much as can be said.
[39] If I do not impose a non-parole period you would be entitled to be released after serving a sentence of two years and eight months. I consider that is manifestly insufficient for the purposes of the sentence and in particular the protection of the public in a case where gangs brawl in public places. I consider that a non-parole period should be imposed.
[40] When I consider what the period should be, the maximum period would have been one of five years and four months.
[41] I consider therefore having regard to the aggravating and mitigating features the non-parole period on count three of five years should be imposed and is now imposed.

[32]

Mr Radford noted the stern nature of the sentence of eight years imprisonment and maintained that a requirement for the appellant to serve one third of that sentence would meet the relevant sentencing purposes and he advanced a number of arguments as to general mitigation.

[33]

Section 86 of the Sentencing Act 2002 provides for the fixing of minimum periods of imprisonment. While this section has thrown up some problems, there can be no doubt that it was aimed very much at offences of this sort. As the decision of this Court in R v Taueki [2005] 3 NZLR 372 at [58] indicates, cases involving the "intentional infliction of serious injury" may well warrant minimum terms of imprisonment of two thirds of the sentence imposed. In that context, it is difficult to see how the approach of the Judge could fairly be criticised.

Disposition

[34]	The appeal against conviction and sentence is dismissed.

Solicitors:
Aspinall Joel, Dunedin for Appellant
Gresson, Dorman & Co for Crown