The Queen v Morgan [2008] NZCA 537 (5 December 2008)

Last Updated: 10 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA481/2008

[2008] NZCA 537

THE QUEEN

v

DERYCK JOSEPH MORGAN

Hearing: 20 November 2008

Court: Arnold, Venning and Miller JJ

Counsel: A J Bailey and S G Bailey for Appellant
A Markham and L C Preston for Crown

Judgment: 5 December 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

[1] The appellant was convicted of one count of aggravated robbery following a jury trial before Judge Saunders. He appeals against his conviction.

Factual background

[2] On the evening of Saturday 15 April 2006 two men gained entry to a book and stationery shop (the shop) which had just closed for the day. The men wore gloves and disguises, and one was armed with a sawn-off shotgun. They forced the two shop attendants, at gunpoint, to open a safe, from which the men took approximately $10,000. They then fled the scene.
[3] The appellant was arrested some months later and charged with the robbery. The Crown case was that he had committed the robbery with an unknown associate. The sole issue at trial was identification.
[4] The Crown case against the appellant was largely circumstantial. In particular:

(a) The offenders entered the shop through a service door, which required an entry code. Only a limited number of people knew the code. One was the appellant’s cousin, Ms Danielle Morgan, who worked at the shop and had left early on the evening in question.

(b) The appellant matched the general description of the offenders.
(c) A police officer who was in the process of responding to the callout in relation to the robbery noticed a “grey/silver Nissan Cefiro or similar” with three occupants, one wearing a white hoodie. He noted this sighting in a jobsheet later in the evening. It later turned out that the appellant drove a grey Nissan Cefiro and that one of the offenders had been wearing a white hoodie during the robbery.
(d) Three weeks after the robbery the police attended an unrelated incident in which the appellant was involved. A sawn-off shotgun was seized. The appellant admitted that he was familiar with the gun, saying that a “mate” had purchased it in a pub about two months before the robbery. One of the shop assistants, Mrs Walder, said that this gun was the “same or very similar to” the gun which the offenders had used in the robbery.
(e) In the course of executing a search warrant at the place where the appellant lived, the police found a number of empty coin bags similar to those taken in the robbery and a black hooded sweatshirt with a “Huffer” brand logo similar to one worn by one of the offenders.
[5] Apart from this evidence, there was “cell mate confession” evidence from Mr Roskam, who shared a prison cell with the appellant prior to trial.
[6] The appellant was to be tried with Ms Morgan, but she could not be found at the time of trial and the trial proceeded in her absence.

Basis of appeal

[7] Mr Bailey advanced seven grounds in support of the appeal. Three related to the Judge’s instructions to the jury, principally in his summing up. Mr Bailey said that the Judge had:

(a) dealt with the position of Ms Morgan in a way that was unfair to the appellant, both in his opening remarks to the jury and in summing up;

(b) failed to give an identification warning in relation to Mrs Walder’s evidence about the sawn-off shot gun; and
(c) summed up in a way that was unbalanced, to the detriment of the appellant.
[8] The remaining grounds were that:

(a) The Judge wrongly allowed a statement made by Mr Roskam to the police to be introduced in evidence.

(b) The evidence of one of the Crown witnesses, Constable Mooney, was unsatisfactory.

(c) The Crown had failed to disclose a statement taken from a Mr Pomare, who the police had interviewed after the robbery considering him to be an accomplice in the robbery.

(d) The jury’s verdict was unreasonable or could not be supported having regard to the evidence. (This ground is dependant on the Court’s conclusion in relation to ground [8](a).)

Discussion

Ms Morgan

[9] The indictment contained three counts:

(a) Count one charged that the appellant, together with a person or persons unknown, being armed with a firearm, had robbed the shop of $10,662.

(b) Count two charged that Ms Morgan, together with the appellant and a person or persons unknown, robbed the shop.
(c) Count three, which was an alternative to count two, charged that Ms Morgan, together with the appellant and a person or persons unknown, had entered the shop without authority and with intent to commit a crime therein.
[10] Mr Bailey said that, when it was clear that Ms Morgan would not be appearing, he had asked the Judge to proceed on the basis of an amended indictment which referred only to the alleged offending by the appellant, without any reference to the charges against Ms Morgan. The Judge refused this request.
[11] After the jury was empanelled, the Judge made some opening remarks to the jury, during which he informed them that the appellant’s co-accused, Ms Morgan, had been bailed to appear but had failed to do so. The Judge advised the jury that no adverse inference should be drawn against the appellant as a consequence of this.
[12] Then, when summing up to the jury, Judge Saunders said:

[13] There has been reference and, of course, you have the indictment which names Danielle Morgan as a co-accused in respect of other counts. I want to be clear about this. She is not on trial before you and only evidence that is relevant and admissible against this accused has been able to be presented at this trial. It would not be a correct approach, for example, to reason, well, if that’s all the evidence that there is against Danielle Morgan, that she worked there and she had knowledge of the code and that that’s not sufficient to have convicted her that, therefore, there is an insufficient case against the accused because, of course, as I have said, as a matter of law only relevant and admissible evidence against this accused can be presented at this trial. You should not be speculating or looking behind that as to what may or may not have been the case concerning Danielle Morgan. We simply are dealing with Mr Deryck Morgan’s case and the evidence that is admissible against him.

[13] Mr Bailey said that the Judge’s instructions to the jury on the position in relation to Ms Morgan were unnecessary and wrong in law. Further, they were “solely made to impliedly inform the jury that there was additional evidence against the co-accused Ms Morgan that they had not heard and therefore the case against [the appellant] was stronger than they may think.”
[14] We reject this submission. The Judge was right to advise the jury of Ms Morgan’s position, and might legitimately have been criticised had he not done so. The terms of the Judge’s directions were apposite. He made it clear that the jury were not to speculate about the case against Ms Morgan and were only to consider Mr Morgan and the evidence against him.

Identification warning

[15] Section 126 of the Evidence Act 2006 requires the Judge to give a warning to the jury where the case against the accused depends wholly or substantially on a visual or voice identification. The section does not deal with identification of inanimate objects.
[16] Despite that, this Court has held that a warning may be required. In R v Watson CA384/99 8 May 2000 (partially reported at [2003] NZAR 193) the Court was dealing with the predecessor to s 126, s 344D of the Crimes Act 1961, which also related simply to identification of people, not inanimate objects. The identification of a yacht was at issue. The Court accepted that it may be appropriate in some cases “for a jury to be given a similar kind of warning if a significant identification of an inanimate object is made in circumstances where there is a possibility of error”: at [29]. A warning is most likely to be necessary where the identification of the inanimate object is central to the case against the accused and there are real issues about its reliability.
[17] In the present case, Mrs Walder said in her statement to the police:

The barrel of [the weapon] was about 18” long, it was a rimu colour and the handle sort of came down on a bend. I was more looking at the other hand which was by Kerryn’s car.

[18] The police showed Mrs Walder a photo montage of four firearms about six months after the robbery, including the firearm that was found in the appellant’s possession shortly after the robbery, which Mrs Walder picked out. Mr Bailey said that the other three firearms in the montage were substantially different in colour and shape from that described by Mrs Walder.
[19] In light of these factors, and the witness’s limited experience with firearms, the circumstances in which she observed it and the importance of the identification to the Crown’s case, Mr Bailey said that a warning should have been given. He said that he had asked the Judge to do so, but his request was declined.
[20] Mr Bailey relied in particular on the decision of the Court of Appeal of Victoria in R v Theos (1996) 89 A Crim R 486.
[21] Mrs Walder’s evidence at trial was that the wood on the gun was light coloured and the handle sloped down. These features (colour and general shape) enabled her to recognise the gun in the photo montage immediately. She said that the gun in the montage “looks exactly the same” as the weapon used in the robbery. Later, under cross-examination, she said that the gun used in the robbery was “very similar, it looked exactly like [the one in the montage]”. She said that she had limited experience with guns but her husband had a couple of shotguns “many years ago”.
[22] Ms Markham submitted for the Crown that no identification warning was required as Mrs Walder did not positively identify the gun used in the robbery. Rather, she said that the gun in the montage (and the actual gun shown to her in Court) was the same or very similar to the one used in the robbery, focussing on shape and colour. Ms Markham said that this evidence was only one strand of the circumstantial evidence against the appellant and that the Judge sufficiently reminded the jury of the defence criticisms of the evidence in his summing up. She distinguished Theos.
[23] For our part, we consider that it would have been better had the Judge given a warning, but are satisfied that there is no risk of a miscarriage of justice from his failure to do so. We do not accept that the absence of a positive identification necessarily means that no warning was required. But we consider that defence counsel explored with the witness the basis for her view that the gun she saw in the montage was the same or similar to the one used in the robbery, and was able to submit to the jury that her evidence was unreliable. The Judge summarised the matters raised by the defence in his summing up in a way that has not been criticised. So while it would have been better had he gone on to give a warning, the jury could not have been in any doubt that there was a contest about this aspect of the Crown case and they should review the evidence carefully. Further, we agree with Ms Markham that this was just one strand of the Crown case against the appellant, albeit an important one. It was not “central” to the Crown case in the way that the identification evidence was in Theos.
[24] Accordingly we reject this ground of appeal.

Summing up unbalanced?

[25] Mr Bailey said that the Judge’s summing up was unbalanced in that it dealt with the evidence in a way favourable to the prosecution and did not address submissions made by the defence.
[26] The difficulty with this submission is that, apart from the specific matters already discussed, Mr Bailey did not draw attention to any particular passages of the summing up which he said were unbalanced. Our own consideration of the summing up does not indicate that it was unbalanced in its approach. Accordingly we reject this ground of appeal.

Mr Roskam’s statement

[27] Mr Roskam shared a cell with the appellant shortly after the appellant was remanded in custody. Mr Roskam said in a statement to the police that he and the appellant had been watching a programme called “Police 10-7” which featured the robbery at issue in the present case. The appellant became very excited, and subsequently (some days later) told Mr Roskam that he had committed the robbery.
[28] Mr Roskam gave oral evidence to this effect at the preliminary hearing. However, at the appellant’s trial he was uncooperative and was declared hostile. Counsel for the Crown put his statement and earlier deposition evidence to him in evidence in chief. By oversight, the statement was not produced, however, and counsel for the Crown sought and was granted leave to deal with the matter in re-examination. There does not appear to have been any objection from defence counsel.
[29] Mr Bailey submitted that the Judge erred in permitting the statement to be produced in re-examination and compounded this error by failing to give an opportunity for further cross-examination by the defence.
[30] Prior to the Evidence Act 2006 coming into force, the principle was that the prosecution should not call a witness known to be hostile in order to get otherwise inadmissible hearsay before the Court (see R v Schriek [1997] 2 NZLR 139 at 145 (CA) and R v O’Brien [2001] 2 NZLR 145 (CA), esp at [7] – [11]). A prior inconsistent statement was not evidence of the truth of the facts contained in it unless the witness adopted the statement as true when giving evidence before the jury.
[31] However with the passage of the new Evidence Act, the rationale for that principle has gone. A previous inconsistent statement will generally be admissible to prove the truth of its contents. See the helpful discussion of Asher J in R v Vagaia [2008] 2 NZLR 516 at [11]–[17] (HC).
[32] In the present case, Mr Roskam had given a statement to the police and had given evidence consistent with that statement at the preliminary hearing. The Crown called him to give that evidence at trial. It quickly became apparent that he was uncooperative. Once he had been declared hostile, the Crown was entitled to put his previous inconsistent statement to him, and the statement could be relied upon as evidence of the truth of its contents. (In this context, we note that in his evidence Mr Roskam did not contend that what he had said in the statement was a fabrication – he said simply that he did not wish to recall what he had said previously because he was concerned for his safety.) The failure to have the statement produced through the witness in evidence in chief was an oversight which was remedied in re-examination, without apparent objection from defence counsel. In addition, counsel did not seek an opportunity for further cross-examination, understandably perhaps given that Mr Roskam had been just as uncooperative towards the defence as he had been towards the prosecution. Finally, Mr Bailey did not identify any matters that he would wish to have pursued with the witness had he been given an opportunity to cross-examine further.
[33] In these circumstances, we see nothing in this ground of appeal and reject it.

Constable Mooney’s evidence

[34] As we have said, Constable Mooney gave evidence at trial that as he was driving to the location of the robbery in response to the callout, he noticed a Nissan Cefiro or similar vehicle speeding along the road. The vehicle had several occupants, one of whom was wearing a white hoodie. The Constable noted this on a jobsheet, which he said in evidence that he prepared later in the evening after returning from the scene of the robbery. Sergeant Brooklands, who was with him in the police car, did not mention the vehicle in his evidence, which was admitted by consent.
[35] The Constable gave evidence that he and Sergeant Brooklands were despatched to the scene of the robbery about 7.05 pm and arrived there at 7.08 pm. Mr Bailey noted that there was no “event chronology” supporting these times, and said that it would not have been possible for the get-away vehicle to have left the scene so quickly as the robbery was still in progress at 7.05 pm. In closing submissions, defence counsel submitted that Constable Mooney was a “slippery witness” who had “lied” when he said he saw a silver/grey Nissan Cefiro or similar. The Judge described counsel’s language as “rather extravagant”.
[36] Before us, Mr Bailey said that the evidence of Constable Mooney was neither credible nor reliable and that the Judge had been unfairly critical of counsel.
[37] We reject both submissions.
[38] First, as to timing, Ms Markham pointed out that Sergeant Brooklands had also said that they were despatched at 7.05 pm and arrived at the scene at 7.08 pm. His evidence was admitted by consent.
[39] Second, Ms Markham said that at trial it suited the defence to accept the times given by the police officers because, if accurate, they meant that the car Constable Mooney saw could not have been the get-away car. But the times were incorrect. The event information sheet recording activity at the police communications centre (which had been disclosed to the defence) showed that the 111 call in relation to the robbery was received at 7.08 pm. The police officers could not have been despatched until after that. This slight difference in timing meant that the sighting was consistent with the sequence of events.
[40] Third, the defence theory that Constable Mooney had invented the sighting and fabricated the job sheet was unrealistic. Constable Mooney’s evidence was that the jobsheet was prepared later in the evening, after he returned to the police station. At that stage, he had no reason to suspect the appellant, nor did he know of his connection with a Nissan Cefiro, as that did not emerge until another incident three weeks later. On the defence theory, the jobsheet would have to have been prepared at least three weeks after the robbery. There is no evidence at all to suggest that.
[41] This leads on to the final point. If Mr Bailey wished to submit that Constable Mooney was not telling the truth when he said he had sighted the car and that he had manufactured the jobsheet at some later point, he was obliged to put those matters to the Constable in cross-examination. He did not do so. To persist with the accusations against the Constable having failed to put them to him is, in our view, inexcusable. In the circumstances, the Judge’s comments about defence counsel’s closing submissions were restrained and circumspect.

Non-disclosure of Mr Pomare’s statement

[42] Mr Bailey complained that the Crown did not disclose a statement taken from Mr Pomare. Judge Saunders gave a ruling on this on 21 July 2008. The Judge noted that the Crown did not propose to call Mr Pomare as a witness. The Judge considered Mr Pomare’s statement in conjunction with a memorandum provided by the Crown. He upheld the Crown’s non-disclosure, on the ground that there was nothing in the statement that could assist the defence and that Mr Pomare, who was in custody, was available to be interviewed by the defence if they wished.
[43] We have been provided with a copy of the statement and the Crown’s confidential memorandum. There is nothing in the statement which would have assisted the appellant in the presentation of his case. We agree with the Judge’s ruling.

Jury’s verdict unreasonable or cannot be supported

[44] Mr Bailey advanced this ground of appeal on the basis that his appeal point in relation to Mr Roskam succeeded. It did not. Accordingly, this ground of appeal fails also.

Result

[45] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington