The Queen v Falwasser [2008] NZCA 478 (10 November 2008)

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The Queen v Falwasser [2008] NZCA 478 (10 November 2008)

Last Updated: 19 November 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA379/2008

[2008] NZCA 478

THE QUEEN

v

COLSEY FALWASSER

Hearing: 10 November 2008

Court: William Young P, Ronald Young and Fogarty JJ

Counsel: J D Dallas and K K Kumar for Appellant
G H Allan for Crown

Judgment: 10 November 2008

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] The appellant was tried before Judge Gaskell and a jury on a charge of burglary. The jury found him guilty. He was later sentenced to six months’ imprisonment for the burglary and a charge of receiving that he had admitted. This sentence was imposed cumulatively on another sentence of imprisonment which he was then serving.
[2] He now appeals against conviction and sentence.
[3] The challenge to the conviction raises three questions:

• (a) Was there an adequate evidential basis for the guilty verdict?
• (b) Did the Judge direct the jury appropriately as to inferences and circumstantial evidence?
• (c) Did the Judge correctly address a question from the jury?

The sentence appeal turns on a single question: was the Judge wrong to impose a cumulative sentence of imprisonment?

Factual background

[4] Between 9.00 am and 6.00 pm on 19 June 2007 there was a burglary at a residential house in Seatoun in Wellington. The offender (or offenders) gained entry to the house through a chest-high rear bathroom window which was jemmied open. A number of items were stolen, including a laptop computer, a Playstation and a number of games. The offender (or offenders) moved a heavy 50 inch television set but did not steal it.
[5] The case against the appellant was circumstantial and rested on the following considerations:

• (a) It was common ground (and admitted) that the appellant’s girlfriend, Ms Sinead Nowakowsky had been involved in the burglary.
• (b) According to the Crown, the appellant was at the house in Seatoun with Ms Nowakowsky on 18 June 2007 (ie the day before the burglary). On the Crown case, he stayed in the car that they used while Ms Nowakowsky knocked on the door asking for directions. Given Ms Nowakowsky’s involvement in the burglary, the inference that she was “casing” the property was well open to the jury. Whether the appellant was with her at the time was, however, in issue at the trial.
• (c) On 22 June (ie three days after the burglary) the appellant visited the victim at the scene of the burglary and had a discussion with him. He advised the victim that he might be able to secure the return of the stolen property. To this end, he left his cellphone number. According to the victim, the appellant also acknowledged having been at the house the day before the burglary but this was challenged by the appellant at trial.
• (d) On the same day the appellant texted another person offering “a PS2 and 20 games” in possible exchange for “2 oz’s”.
• (e) Six days after the burglary a number of items which matched the description of items taken in the burglary were found at the appellant’s address and in the vehicle that he and Ms Nowakowsky used. Also found in the car was a black bag containing a balaclava, two gloves, soft shoes and a hood, all of which belonged to the appellant. On the Crown case, this was a burglary kit, a proposition which the appellant was not prepared to accept when he gave evidence.
• (f) Ms Nowakowsky was 8 months pregnant at the time of the burglary and would not physically have been able to commit the burglary alone given that at least one offender obtained entry through a chest high window and moved a particularly heavy 50-inch television set.
• (g) The appellant was in difficult financial circumstances at the time of the burglary (albeit that his circumstances then were not necessarily more difficult than usual).
• (h) When spoken to by the Police, the appellant claimed to have been at work at the time of the burglary a claim which, on the Crown case, was a false alibi. The appellant had told the interviewing officer that he had been working in Khandallah on the day of the burglary selling “stuff like car wax” door to door. He did sometimes work for a marketing company selling on a commission basis but was not doing so (as he acknowledged in evidence) on 19 June. He likewise acknowledged in evidence that he was not selling car wax that day. Instead he claimed to have been working for another company selling cheap telephone calling deals. He gave this evidence despite not having given an alibi notice.

[6] As indicated, the appellant claimed at trial that he had not gone to the property the day before the burglary with Ms Nowakowsky. He asserted that the person in the car with Ms Nowakowsly was his fifteen year old sister. His evidence on this point was inconsistent with that of the victim, who positively identified the appellant as having been the person in the car when Ms Nowakowsky asked for directions. The victim had given to the police a contemporaneous description of the person in the car which matched broadly the appearance of the appellant.
[7] As well, the appellant disputed that, in the discussion which he admitted having with the victim after the burglary, he had told the victim that he had been in the car on the day before the burglary. The evidence to the contrary from the victim was consistent with the victim’s contemporaneous statement (from which he refreshed his memory when giving evidence).
[8] As well as addressing the points of controversy just mentioned, the appellant in his evidence at trial claimed that he learnt after the burglary of his girlfriend’s likely (or alleged) involvement in it and that this prompted his visit to the victim. He denied that the games found in the car and at his address came from the burglary. He claimed that what the Crown maintained was the burglary kit found in his car formed part of a broader collection of clothes (some of which were in his house) that were associated with his interest in martial arts.
[9] One point was rather left hanging at the end of the case. In his evidence in chief the victim was asked if he had later been shown some items by the police to which he responded that he could “not recall that”. As well, he said that he had not received any of the stolen property. There was thus no evidence from him that the material which had been located in the appellant’s car and in the house was what had been stolen from him in the burglary.

Was there an adequate evidential basis for the verdict?

[10] Mr Dallas, for the appellant, invoked s 385(1)(a) of the Crimes Act 1961 which requires this Court to allow an appeal if of opinion:

That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence[.]

In support of this ground of the appeal, Mr Dallas contended that the failure of the victim to identify as his own the property found in the appellant’s house and car was fatal to the prosecution.

[11] We disagree. The case against the appellant was strong to the point of being overwhelming. It was perfectly open to inference that the items of property found in the appellant’s car and at his house came from the burglary. The appellant, after all, on any view of it was closely associated with the burglary. This was so even on the facts which were common ground at trial, namely that his girlfriend had participated in the burglary and he had told the victim that he could assist in recovering the property. In light of the circumstantial case as a whole, the failure of the Crown to lead evidence from the victim identifying particular items as being his was of no material significance.

Did the Judge direct the jury appropriately as to inferences and circumstantial evidence?

[12] Mr Dallas complained about the Judge’s directions in her summing up on inferences and circumstantial evidence, in particular that she discussed both concepts together and in a related way.
[13] The direction of question was in these terms:

Now the Crown asks you to infer, from all of the evidence, that the accused was involved in the burglary and it is for you to decide whether the evidence as a whole, establishes that beyond reasonable doubt. Whether you draw the inference, that he was involved, is a matter for you, because it is a question of fact. You are allowed to draw inferences. They are simply conclusions drawn from the facts that are proved in the case. The drawing of inferences is a matter of your using your common sense. It is not guessing.

The Crown’s case depends largely on what is called circumstantial evidence and that relies on reasoning by inference and it derives its force from the involvement of a number of factors that independently point to the guilt of the accused. Sometimes, in fact almost all the time, Judges use the analogy of a rope when explaining what circumstantial evidence is. So, any one strand of a rope may not support a particular weight, or a particular conclusion, but if you put all the strands together then they may be sufficient to lead you to a particular conclusion. That is the logic that underpins a circumstantial case, that the accused is either guilty, or that he is the victim of a very unlikely series of coincidences. That is the sort of reasoning that is behind circumstantial evidence.

When you consider a circumstantial case, you have to have regard to what circumstances are relied on, not only by the Crown, but also those circumstances that favour the defence. Counsel have gone through those and I’ll summarise those briefly when I address you on their cases. But the ultimate issue is whether or not, on the totality of the evidence that you have heard, you are satisfied, beyond reasonable doubt, that the accused was involved in the burglary.

[14] The expression “inference” refers to a conclusion drawn from a number of other facts or circumstances. The reasoning process by which such a conclusion may logically be drawn varies according to the nature of the case.
[15] Sometimes the inference is simply the natural corollary of the primary facts which have been established. For instance, if the primary facts are that the defendant threatened to kill the victim and then attacked the victim with a lethal weapon causing fatal injuries, a conclusion (or inference) that the defendant intended to kill the victim may be the natural corollary of those primary facts. As this example indicates, this type of reasoning is often employed when determining the state of mind of the defendant at the time of the alleged offending.
[16] The expression “circumstantial evidence” tends to be employed when the underlying issue is whether or not the accused committed the particular crime and the Crown invites the jury to infer, from a number of circumstances, that the defendant is guilty. In situations of this type, the process of reasoning is primarily based on ideas about coincidence.
[17] In the present case, the inferences contended for by the Crown were based on a process of reasoning which the Judge described in this way in the passage from her summing set out above:

the accused is either guilty, or ... he is the victim of a very unlikely series of coincidences.

Accordingly, the Judge was right (and in this respect followed best practice) in discussing inferences and circumstantial evidence together.

[18] The fact that the items found in the appellant’s house and the car were of the same type as goods stolen in the burglary was in itself a fact which formed part of the circumstances which were (at least potentially) logically relevant (on the coincidence line of reasoning referred to by the Judge) to whether the appellant was guilty. The more probable the inference that the goods in question had been stolen from the victim, the more cogent this circumstance became. But, of course, the stronger the other evidence pointing to the appellant being the offender, the more probable becomes the conclusion that the goods in question had been stolen from the victim. What this illustrates is that the jury was required to make a holistic assessment of the evidence as a whole in deciding whether it has been proved beyond reasonable doubt that the appellant was guilty. This is exactly what the Judge directed the jury to do.

Did the Judge correctly address a question from the jury?

[19] In the course of its deliberations, the jury asked a question in these terms:

Because the police did not verify the stolen property with [the victim], are we safe, or are we allowed to conclude that the property found at the accused’s house, belongs to him. We need to understand this to assist with our decision-making.

[20] The Judge responded to this question in this way:

[2] That is a question of fact for you, so you may decide whatever you like about that. It is a question for the jury whether the property that he has listed, coincides with the property there and I think you need to put that in context. You need to take into account what the accused said about his possession of those items, or the presence of those items in his house.

[3] It is open to you to conclude that the property found belongs to [the victim], but it is a matter of fact and entirely for you, having considered all of the evidence.

[21] Mr Dallas was very critical of this answer, suggesting that it:

• (a) diverted the attention of the jury to the wrong consideration,
• (b) demonstrated bias in favour of the Crown; and
• (c) invited the jury to convict the appellant on the basis of suspicion, speculation or guess work.

We, however, are unable to discern any error.

[22] Indeed we consider that the answer given by the Judge was absolutely correct. It was open to the jury, as we have already indicated, to conclude that the property belonged to the victim. Whether or not this inference was drawn required, naturally, an assessment of the case in context. And of course the jury had to take into account the appellant’s explanation as to the provenance of the items of property.

Was the Judge wrong to impose a cumulative sentence of imprisonment?

[23] The charge of receiving, to which the appellant pleaded guilty, related to property that had been stolen on 7 June 2007 from another house in Seatoun.
[24] At the time of sentencing the appellant was 20 years of age.
[25] He had, at the time of the offending (ie in June 2007) five convictions for failing to answer bail.
[26] He was sentenced the month after the burglary on a number of other charges which had been committed earlier: unlawfully interfering with a motor vehicle, burglary, theft (eight) and unlawfully taking a motor vehicle.
[27] After he had been charged in relation to the Seatoun burglary, he was released on bail. While on bail, he committed a number of other offences: careless driving causing injury and failing to stop after an accident, fighting in a public place, burglary (four), breach of bail, unlawfully taking a motor cycle, supplying false details, aggravated assault, escaping from custody (two), resisting a police officer (two) and assaulting a police officer. On these charges, and a further charge of burglary dating back to September 2006, he was sentenced on 22 February 2008 to two and a half years’ imprisonment.
[28] It is common ground now, as indeed it was at sentencing, that a short sentence of imprisonment was appropriate in relation to the Seatoun offending. As the Judge noted, the only primary issue in question was whether that sentence should be cumulative on the existing sentence.
[29] Broadly the submission before us is that had all offences of burglary been dealt with together, a sentence in excess of two and a half years would not have been imposed.
[30] The Judge, however, plainly had the totality principle in mind. She noted that four of the burglaries for which the appellant had been sentenced in February related to a discrete spree of offending in Taupo. She saw the Seatoun offending as quite different, both in time and place.
[31] As the Judge said, there were a number of aggravating features to the offending. It was planned, it involved the intrusion into a private home, and the total loss to the victims was some $13,000 (that is, after allowing some of the stolen items being returned, presumably after the trial). The appellant was also on bail at the time of the offending.
[32] In those circumstances, we see no error in principle (or any other error) in imposing the cumulative sentence.

Disposition

[33] The appeal is dismissed.

Solicitors:
Crown Law, Wellington