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The Queen v McCausland [2006] NZCA 335 (5 December 2006)

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The Queen v McCausland [2006] NZCA 335 (5 December 2006)

Last Updated: 12 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA210/06

THE QUEEN

v

NEVILLE DEVEER MCCAUSLAND

Hearing: 23 November 2006

Court: Arnold, Baragwanath and Ronald Young JJ

Counsel: R G Glover for Appellant
B J Horsley for Crown

Judgment: 5 December 2006 at 2.15 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] The appellant was charged with aggravated robbery. The Crown alleged that a co-accused and two others had committed an armed robbery of a tavern and that the appellant was a party to the offence. The appellant was alleged to be a party because he was present, voluntarily, when the offence was committed and either acted as a lookout or, by his presence, encouraged the principal offenders in the commission of the offence. The appellant was convicted following a jury trial before Judge Erber and was sentenced to four years imprisonment. He appeals against both conviction and sentence.
[2] The sole ground advanced by Mr Glover in support of the conviction appeal was that on the evidence the jury could not have been satisfied beyond a reasonable doubt that the appellant was a party to the offence as alleged. The appeal against sentence was advanced on the basis that the appellant’s involvement in the offending was so minimal that a sentence of four years was manifestly excessive.

Background

[3] The Crown case was that the co-accused and two others had planned to rob a tavern. Shortly before they were to drive to the tavern to carry out the robbery, the appellant attached himself to the group. Although the appellant did not give evidence at trial, he made several statements to the Police. He explained his involvement in the following way:

... The rest of the guys said they were going to a party. I asked to go and they said I couldn’t go to the party. Then Kerrin said they were going to do something bad. Then Teneka arrived at Hooker Ave. I found out later that Teneka, Kerrin and Jason had been planning it for two weeks. Teneka worked there. She knew all about the cash, those three sussed it out. I got in the car and went for a drive. They hadn’t mentioned properly what they were doing. When we got to Shirley they stopped and got the rifle out of the boot. That’s when I said, "What’s going on". That’s when they told me what they’d been doing and how long they’d been planning it. They parked up the street. I was in the front street. Kerrin and Jason took off to the pub, Jason had the gun. I couldn’t see them. We were parked on the road. I was sick, vomiting on the road. About five to ten minutes later Kerrin came back to the car. Kerrin said "Where’s Jason". Next Teneka and Kerrin got out and they went back to the pub. I stayed in the car. Next they came back. They said they had seen the guy tied up. They went to drive off. As they drove off Jason walks out onto Marshlands Road. He didn’t have the gun. He said that he’d stashed it. He said that he wiped it down. He had a rubbish tin full of cash. The gun was Kerrin’s. He had it for about two weeks or so. He said he’d been driving around shooting it at houses for that two weeks. We drove back to Hooker Ave. Teneka, Jason and Kerrin counted the money in the sleepout. They wouldn’t let me in. They didn’t want me to know how much they’d got. Next we went into the Chancery. ...

[4] On the day after the robbery, the appellant and one of the principal offenders flew from Christchurch to Rotorua and from there travelled to Tauranga and then Auckland. The appellant travelled under a false name with his girlfriend. When interviewed by the Police in Auckland he was found carrying a bag containing $700 in cash. The appellant explained this sequence of events in the following way:

I didn’t want anything to do with this. That’s why I came up here to get away from it and to show my girlfriend where my father is buried. They split it three ways. I don’t know how much they got. Kerrin paid for me to get up here. I didn’t pay for him. He had the money. I just came along for the ride. He paid for Jessica to come up here.

[5] In relation to the $700, the appellant said that the bag belonged to the principal offender with whom he was travelling.
[6] At the conclusion of the Crown case, Mr Glover applied under s 347 of the Crimes Act 1961 that the appellant be discharged. Mr Glover argued that while there was evidence that the appellant was present near the scene of the robbery, that was not, of itself, sufficient to found liability as a party. That, coupled with evidence that the appellant was drunk and so may not have appreciated what was going on, meant that there was insufficient evidence to found a conviction.
[7] The Judge rejected the application. He said:

[5] My conclusion is this – presence at the commission of a crime is not sufficient unless the evidence is such that it could be said that presence is intended to add weight to the principal offenders or was intended to demonstrate the fact that the person who was present was there with a purpose, namely as a lookout.
[6] I think that if the evidence that were averted to by the Crown were accepted by the jury there is enough on which to base an inference of complicity as a lookout, especially the following points:

 That Mr McCausland was there.
 That he knew when the car arrived near the tavern that the occupants, the other occupants intended the commission of a crime with the use of a weapon.
 That Mr McCausland returned with the other occupants when the money was divided.
 That he celebrated with them.
 That he claimed to have received nothing when he told the Detective that the money was split three ways.
 That he was found with $700 in cash shortly afterwards in the North Island where he went to with one of the principal offenders at a time when he was on the dole, telling the Police that the cash was holiday pay, which may be seen by the jury to be a lie which might taint the credibility the jury give to his statement. I note that later he said that the money was in a bag which belonged to Mr Telfer.

A jury accepting these matters could well infer that Mr McCausland had $700 in cash, being his part of the proceeds as a lookout.

Discussion

[8] An appellate court may not interfere with a jury’s verdict simply because it disagrees with it, in the sense that had it been the fact-finder it would not have reached the same conclusion. The court may interfere only where it considers that a jury acting reasonably must have entertained a reasonable doubt as to guilt: R v Ramage [1985] 1 NZLR 392 at 393 (CA). Accordingly if there is evidence available which would, if accepted, support the jury’s verdict, that verdict may not be impugned as unreasonable: R v McDonald CA142/04 29 July 2004 at [18]. A decision as to whether a verdict is unreasonable, or cannot be supported having regard to the evidence, does not lend itself to extensive elaboration of reasons: R v Ramage at 395.
[9] Mr Glover’s argument was essentially the same as that made on the s 347 application. He presented his submissions by addressing the points identified by the Judge at [6] of his judgment on the application.
[10] The essence of Mr Glover’s argument was that:

 While the evidence established that the appellant was in the car used by the principal offenders to go to and from the robbery, mere presence at the scene of the crime was insufficient to found liability as a party.
 The evidence showed that the appellant was drunk, that the car was parked about a hundred metres from the tavern and that the appellant had no means of communicating with the principal offenders while they were carrying out the offence. Accordingly the Crown’s theory that he was a lookout could not be sustained.
 While the appellant knew when he got into the car that the principal offenders were going to do "something bad", he did not know what was planned until they arrived at the tavern and the rifle was produced. At that point, given his intoxicated state and lack of other means of transport, the appellant’s only realistic option was to remain in the car. As a consequence no inference could properly be drawn that his continued presence was intended to provide assistance to or support for the principal offenders.

[11] To be liable as a secondary party a person must know the essential elements that constitute the offence: R v Witika [1993] 2 NZLR 424 at 432 (CA). When he got into the car the appellant may have known only that the participants planned "something bad". However, it is clear from his main statement to the Police that the appellant knew what the principal offenders had in mind by the time car approached the tavern and the rifle was produced. By that stage at the latest, then, he had the requisite knowledge.
[12] The question is, however, whether the jury was entitled on the evidence to conclude that the appellant’s conduct involved more than "mere presence". The Crown was required to prove either an act or omission done for the purpose of assisting the principal offender (under s 66(1)(b)), or an act or omission done for the purpose of encouraging the offender, which is communicated to the offender (under s 66(1)(c)): R v Loper CA502/99 22 May 2000 at [12]. The Crown’s case was that the appellant acted as a lookout or at least was present voluntarily, knowing that his presence would assist or encourage the principal offenders.
[13] Like the Judge, we consider that on the evidence the jury was entitled to conclude that the appellant remained in the vehicle at the scene of the crime for the purpose of assisting the principal offenders. The factors identified by the Judge at [6] of his judgment on the s 347 application support such a conclusion despite Mr Glover’s challenge to them. They show a course of conduct at the time of, and subsequent to, the commission of the offence which supports the conclusion that the appellant intended to, and did, provide active assistance to the principal offenders and was rewarded for his assistance.
[14] We note two points in addition to those identified by the Judge:

 Whether or not the appellant was an effective lookout, his decision to remain in the car provided some reassurance to the principal offenders that the car would be safe until they were ready to return to it and make their getaway. There was in that sense active assistance.
 When the appellant left Christchurch the day after the robbery he travelled under a false name and continued to do so until he was apprehended. This is an additional feature of his behaviour after the robbery that supports the conclusion that he was an active participant in the robbery.

[15] While mere presence at the scene of a crime does not establish liability as either an aider or an abettor, deliberate presence as a lookout, or to secure a getaway vehicle, or to provide support or encouragement will be sufficient. Whether a case falls on one side of the line or the other is a matter of fact, to be assessed by the fact-finder in light of all the circumstances. Here there is no complaint about the Judge’s summing up to the jury on this aspect. We consider that there was evidence on the basis of which the jury could properly convict. Accordingly the appeal against conviction fails.

Sentence appeal

[16] The appellant was sentenced to a term of imprisonment of four years. The Judge said that the offending fell within [54]-[55] of this Court’s decision in R v Mako [2000] 2 NZLR 170. In relation to the appellant, the Judge fixed a starting point of four years, to reflect his lesser culpability in the offending. As there were no mitigating factors, this starting point became the final sentence.
[17] Mr Glover did not challenge the Judge’s characterisation of the offending overall. Rather he argued that the appellant’s sentence was manifestly excessive given the appellant’s minor role in the robbery. He contrasted that sentence with the sentence of three and a half years imposed on Teneka Spooner, who had worked at the tavern and had instigated the robbery. As Mr Glover colourfully put it "four years is too much for a drunk ‘Johnny come lately’".
[18] For the Crown, Mr Horsley argued that this was a serious aggravated robbery involving the use of a loaded firearm. $31,000 in cash was stolen and never recovered. In the course of the robbery one of the occupants of the tavern was confronted with a loaded firearm and was tied up and threatened.
[19] The offender who presented the firearm was convicted after trial and sentenced to nine years imprisonment. Another offender pleaded guilty to this and another robbery and was sentenced to nine and a half years imprisonment for this robbery and to eight years for the other robbery, to be served concurrently. In relation to Ms Spooner, a starting point of six years was adopted and that was reduced to three and a half years in what was described as a lenient sentence.
[20] Given the nature of the offending, the sentences imposed on the principal offenders, the fact that the appellant went to trial and the appellant’s previous poor record, the sentence imposed was within the range properly available to the Judge. The fact that Ms Spooner received a lenient sentence, reflecting her individual circumstances, does not raise any issue of disparity.

Decision

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

Solicitors:
Crown Law Office, Wellington

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[5]	In relation to the $700, the appellant said that the bag belonged to the principal offender with whom he was travelling.
[6]	At the conclusion of the Crown case, Mr Glover applied under s 347 of the Crimes Act 1961 that the appellant be discharged. Mr Glover argued that while there was evidence that the appellant was present near the scene of the robbery, that was not, of itself, sufficient to found liability as a party. That, coupled with evidence that the appellant was drunk and so may not have appreciated what was going on, meant that there was insufficient evidence to found a conviction.
[7]	The Judge rejected the application. He said:

	That Mr McCausland was there.
	That he knew when the car arrived near the tavern that the occupants, the other occupants intended the commission of a crime with the use of a weapon.
	That Mr McCausland returned with the other occupants when the money was divided.
	That he celebrated with them.
	That he claimed to have received nothing when he told the Detective that the money was split three ways.
	That he was found with $700 in cash shortly afterwards in the North Island where he went to with one of the principal offenders at a time when he was on the dole, telling the Police that the cash was holiday pay, which may be seen by the jury to be a lie which might taint the credibility the jury give to his statement. I note that later he said that the money was in a bag which belonged to Mr Telfer.

[8]	An appellate court may not interfere with a jury’s verdict simply because it disagrees with it, in the sense that had it been the fact-finder it would not have reached the same conclusion. The court may interfere only where it considers that a jury acting reasonably must have entertained a reasonable doubt as to guilt: R v Ramage [1985] 1 NZLR 392 at 393 (CA). Accordingly if there is evidence available which would, if accepted, support the jury’s verdict, that verdict may not be impugned as unreasonable: R v McDonald CA142/04 29 July 2004 at [18]. A decision as to whether a verdict is unreasonable, or cannot be supported having regard to the evidence, does not lend itself to extensive elaboration of reasons: R v Ramage at 395.
[9]	Mr Glover’s argument was essentially the same as that made on the s 347 application. He presented his submissions by addressing the points identified by the Judge at [6] of his judgment on the application.
[10]	The essence of Mr Glover’s argument was that:

[11]	To be liable as a secondary party a person must know the essential elements that constitute the offence: R v Witika [1993] 2 NZLR 424 at 432 (CA). When he got into the car the appellant may have known only that the participants planned "something bad". However, it is clear from his main statement to the Police that the appellant knew what the principal offenders had in mind by the time car approached the tavern and the rifle was produced. By that stage at the latest, then, he had the requisite knowledge.
[12]	The question is, however, whether the jury was entitled on the evidence to conclude that the appellant’s conduct involved more than "mere presence". The Crown was required to prove either an act or omission done for the purpose of assisting the principal offender (under s 66(1)(b)), or an act or omission done for the purpose of encouraging the offender, which is communicated to the offender (under s 66(1)(c)): R v Loper CA502/99 22 May 2000 at [12]. The Crown’s case was that the appellant acted as a lookout or at least was present voluntarily, knowing that his presence would assist or encourage the principal offenders.
[13]	Like the Judge, we consider that on the evidence the jury was entitled to conclude that the appellant remained in the vehicle at the scene of the crime for the purpose of assisting the principal offenders. The factors identified by the Judge at [6] of his judgment on the s 347 application support such a conclusion despite Mr Glover’s challenge to them. They show a course of conduct at the time of, and subsequent to, the commission of the offence which supports the conclusion that the appellant intended to, and did, provide active assistance to the principal offenders and was rewarded for his assistance.
[14]	We note two points in addition to those identified by the Judge:

[16]	The appellant was sentenced to a term of imprisonment of four years. The Judge said that the offending fell within [54]-[55] of this Court’s decision in R v Mako [2000] 2 NZLR 170. In relation to the appellant, the Judge fixed a starting point of four years, to reflect his lesser culpability in the offending. As there were no mitigating factors, this starting point became the final sentence.
[17]	Mr Glover did not challenge the Judge’s characterisation of the offending overall. Rather he argued that the appellant’s sentence was manifestly excessive given the appellant’s minor role in the robbery. He contrasted that sentence with the sentence of three and a half years imposed on Teneka Spooner, who had worked at the tavern and had instigated the robbery. As Mr Glover colourfully put it "four years is too much for a drunk ‘Johnny come lately’".
[18]	For the Crown, Mr Horsley argued that this was a serious aggravated robbery involving the use of a loaded firearm. $31,000 in cash was stolen and never recovered. In the course of the robbery one of the occupants of the tavern was confronted with a loaded firearm and was tied up and threatened.
[19]	The offender who presented the firearm was convicted after trial and sentenced to nine years imprisonment. Another offender pleaded guilty to this and another robbery and was sentenced to nine and a half years imprisonment for this robbery and to eight years for the other robbery, to be served concurrently. In relation to Ms Spooner, a starting point of six years was adopted and that was reduced to three and a half years in what was described as a lenient sentence.
[20]	Given the nature of the offending, the sentences imposed on the principal offenders, the fact that the appellant went to trial and the appellant’s previous poor record, the sentence imposed was within the range properly available to the Judge. The fact that Ms Spooner received a lenient sentence, reflecting her individual circumstances, does not raise any issue of disparity.