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The Queen v Van Haaren [2008] NZCA 91 (17 April 2008)

Last Updated: 26 April 2008


IN THE COURT OF APPEAL OF NEW ZEALAND

CA389/06 [2008] NZCA 91THE QUEEN

v

LEE VAN HAAREN

Hearing: 30 August 2007


Court: Robertson, Baragwanath and Heath JJ


Counsel: M E Goodwin for Appellant
K B F Hastie for Crown


Judgment: 17 April 2008 at 11 am


JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.


____________________________________________________________________


REASONS OF THE COURT

(Given by Baragwanath J)

Introduction

[1] Ms Van Haaren appeals against her conviction by a jury on eight counts of arson and against the sentence of seven years and six months’ imprisonment with a minimum non-parole period of four years and six months imposed by Judge McDonald. In order to determine the appeal against sentence we required a further psychiatric report upon the appellant. That was received on 3 March 2008 and we have now considered it.

Background facts

[2] Between 23 November 2004 and 19 May 2005 numerous fires occurred within or adjacent to the Kaitaia central business district. In early 2005 the police determined that the fires were being lit by a serial arsonist and began an investigation. When several more fires were lit over the Easter weekend they began a covert operation, maintaining a nightly surveillance of the business district in Kaitaia at weekends.
[3] On 3 June 2005 the appellant was arrested on an unrelated matter. At the police station she was interviewed in relation to the series of fires and made numerous confessional comments. She was arrested on 14 counts of arson which gave rise to charges. In a pre-trial ruling on a defence application for discharge the Judge dismissed three charges. The appellant was acquitted on another three. Convictions were entered on eight counts:
[4] The grounds of the appeal against conviction are:
  1. inadmissible opinion evidence was given by two police witnesses who were not qualified as experts;
  2. the trial Judge erred in summing up by referring to their evidence as expert;
  1. interjections made by the Judge during the trial were unfairly prejudicial;
  1. the evidence of three police witnesses was unfairly prejudicial to the appellant by referring to previous dealings with the appellant.

(a) Inadmissible evidence and Judge’s references to evidence as expert

The evidence

[5] The Crown relied on propensity evidence that all the fires were set in a particular way, described as use of a “campfire” (piling up twigs, sticks, branches and the like and setting them alight) rather than employing an accelerant or paper. Defence counsel conceded that the “campfire” method was used in relation to many of the fires. The Judge dismissed three charges where the “campfire” method had not been employed.
[6] The Judge upheld a defence objection to proposed opinion evidence of Detective Sergeant Robinson, who had been to the majority of the fires, that they were all lit by the same arsonist. He was permitted to give evidence that he was in his twentieth year as a police officer, 16 of those years in Kaitaia and 14 as a detective in the CIB or in charge of the CIB. He said he had attended between 50 and 100 arsons in and around the Kaitaia district and had never encountered this mechanism for starting fires.
[7] The detective sergeant gave evidence about the fire the subject of count 1:

Now the Kaitaia arts society building on Matthews Avenue, did you attend that scene?... Yes I attended that scene initially with Detective Mike Sabin, fairly much as soon as I arrived at work on the Monday morning.

And what was significant to you at that scene?... The first thing I noticed was that there were 2 fire seats, or areas where the fire had started, one thing that I noticed immediately was that the outside fire scene was in my view quite peculiar and unique, I say that because it was clear that a camp fire had been formed up against the baseboards underneath the building.

Now you call it a camp fire, why?... I’m experienced myself in bush fires etc, I’ve camped in the bush and that is the appearance that it had, someone had created a fire using twigs and the like, and built it up and ignited it, I saw that as quite unique, it’s the first time in my Police career that I’d encountered that sort of method of commencing an arson.

[8] In relation to the fire at the Far North district centre the subject of count 3 his evidence was:

On arrival did you look for an origin of the fire?... Yes it was immediately apparent, it could be seen underneath that deck area and again I immediately noticed the same method in that a camp fire had been constructed against the wooden base boards and ignited.

[9] In relation to count 5:

Now firstly in terms of the Waitomo Papakainga scene, how did that appear to the previous scenes you had already attended?... It was identical in nature in that a camp fire had been constructed, again against space boards or wooden boards and ignited.

[10] In relation to count 6:

Again we saw essentially the area targeted was deck, wooden base boards, a fire constructed against those base boards ignited and burning up into the deck area, there was a large log there which had obviously been put on the fire, or helped to construct the fire...

After seeing these two fires, did you come to a conclusion?... I was satisfied that they were a continuation of the earlier fires, and the earlier fire scenes I’d visited, the method was just too unique that it just jumped out at you straight away.

[11] In relation to count 7:

How did that fire or the mechanism used to start the fire compare with the previous fires that you’ve told us about?... It was identical in nature.

[12] In relation to count 9:

We’ve heard evidence that at this fire there was a sack that had been filled with sticks and branches and the like, you’d accept that in terms of the packaging that’s slightly different to the other scene wasn’t it?... Yes, it was, essentially the fire scene was almost in the same place, it was constructed in the same manner with the exception that it had been placed in a sack, to me this indicated that the person responsible may have been getting more careful as a result of publicity that had been in the paper.

[13] In relation to count 11:

How did that fire compare to the others that you had seen over the preceding months?... Again, it was identical in construction and method, a wooden deck area had been targeted, a camp fire had been built against the building, the only exception with this fire was the added attraction of a large tyre which indicated to me that the person responsible wanted the fire to be successful...

Did the fact that the person used a tyre affect the way your view as to the consistency between the earlier 10 fires and that in count 11?... Not really, all of the fires had been constructed or built with items gathered up in the nearby vicinity and this had been sourced from a business very close by.

[14] The Judge also admitted evidence of opinion from Detective Harris who had been a detective for a little over six years and had attended only two cases of arson other than those the subject of the appellant’s trial. In relation to the fires giving rise to count 2 (on which the appellant was acquitted) and count 5 (relating to the Waitomo Papakainga Development Society Detective Harris was asked:

You have been to two fire scenes, how do they compare?

He replied:

Very similar in construction.

[15] Detective Harris was further asked to compare the fires referred to in those counts and also counts 6 and 7. He replied:

Certainly distinct similarities, in that in some of them, well in fact in all of them there didn’t appear to be anything foreign taken to the scene of the fire, they were all set using fuel, using whatever could be located at the scene, this one was similar to the top seat of the fire, or the top fire at Waitomo in that there was no remnants of sticks and twigs and the like there the same with at the community centre, however paper could well have been used but again the fires have been used but again the fires have been set on to something flammable, in this case the bark garden or the timber landscaping logs.

[16] The detective was asked his opinion about the relationship among the fires:

Now you’ve been to 6 fires, what theme did you see emerging?... The theme that we were dealing with a serial arsonist and certainly common theme with the way the fires were being set.

The Judge’s direction

[17] The Judge directed the jury:

Normally witnesses give evidence only about what they saw, heard or did. They are not allowed to express opinions. But people who have specialised qualifications and experience are permitted to give evidence of opinions about matters within their area of expertise. They are allowed to do that because their expert knowledge may help the jury understand subjects that are outside most people’s general knowledge. But this is a trial by jury not a trial by experts. It is for you to decide how much weight or importance you give to that opinion, or indeed whether you accept it at all in the context of all the evidence that you have heard.

...I am sure you will recall the evidence of Detective Harris who has quite candidly said at one point “well I’m not an arson expert but...” and then he continued on. Bear all that in mind. It is there to assist you but at the end of the day it is up to you to decide what weight you give to those expert opinions.

[18] The direction is substantially a restatement of the law as it existed prior to the enactment of the Evidence Act 2006 and which is summarised by Cross at EVA25.4:

...the overriding question is whether the witness can give evidence which is helpful to the court, i.e. which is relevant and reliable...

[19] There can be no doubt that Detective Sergeant Robinson satisfies that test. While there is a continuum between what at one end is either pure fact or something so well-known as to be the subject of judicial notice, and at the other end issues so unfamiliar as to require highly specialist expertise, the answer to the question in [18] is a practical matter. The detective sergeant’s evidence about arson patterns lay sufficiently outside the experience of ordinary members of the community as to assist the jury. He had sufficient experience to warrant acceptance by the Judge that he was qualified to give opinion evidence on the topic as an expert. The evidence was therefore admissible and the Judge’s direction upon it justified.
[20] While the same could not be said of the evidence of Detective Harris it was not suggested that of itself could entail risk of miscarriage.
[21] The first and second grounds fail.

(c) Unfairness arising from the Judge’s comments

[22] In the course of the evidence of Detective Harris about items found in the caravan where the appellant was staying the Judge stated:

That in effect was the extent of the number of items found in the caravan?

The only other relevant items to me was two books labelled the History of Australian Bush Ranging volumes 1 and 2.

COURT: Its Ned Kelly sort of things is it.

...They were just about bush life, living in the bush and things in Australia.

[23] Mr Goodwin submitted that the reference to Ned Kelly was highly prejudicial because he was a notorious Australian criminal. He submitted that the jury might well have understood the Judge’s comments to suggest that the appellant was found to be in possession of reading material about criminal activity in the Australian bush and associated her with that lifestyle.
[24] We regard the observation as innocuous: anyone with knowledge of Australia would know that Ned Kelly is something of a folk hero: “As game as Ned Kelly”. The detective’s answer about the subject of the bush was sufficient to deal with it.
[25] The other point was that during discussion with counsel about the evidence of Detective Sergeant Robinson Crown counsel had asked the officer:

...did the police have a number of suspects?

He replied:

...we ended up with about 21 suspects

He referred to the process of elimination. Counsel then asked how long a suspect remained on the police’s books. The Judge intervened to enquire as to relevance. There followed an exchange between counsel and the Judge:

MS CULL: If there’s relevance, indeed they would have had suspects obviously.

COURT: Well they would have had a whole heap of suspects and they narrowed it down, it doesn’t take an Einstein to figure out, to this suspect.

MR MAGEE: Well the point... is though...that we’ve had a number of names floated out there...I’m addressing a background whereby I can responsibly say to a jury well we’ve heard about these people and although entirely, it’s a matter for the police they can be excluded.

[26] Mr Goodwin submitted that as a matter of logic the appellant would be identified as the suspect, so the Judge’s remark would have conveyed to the jury that he believed that there was compelling evidence against the appellant and that she was the only real suspect in the case.
[27] We have noted that the interchange occurred in the course of evidence-in-chief from the detective sergeant about the nature of the enquiry. We accept the Crown submission that at the disputed passage the Judge was saying no more than that since the appellant was on trial the list of suspects must have narrowed so as to exclude others. The passage was germane to the question whether the fires might have been committed by others of the 21 original suspects. While there is a legitimate question about the admissibility of evidence of such generality, in the absence of any real suggestion of a specific other offender we do not regard the challenged passage as unfairly prejudicial.

Evidence of previous police dealings

[28] During the trial several Crown witnesses gave evidence that referred to the appellant’s previous dealings with the police. Mr Shaw, a non-sworn jailer at the Kaitaia police station, stated:

Now at that time were you familiar with her appearance?... Yes I was.

Why was that?... Um, I had had dealings with Ms Van Haaren in the past, approximately 18 months prior to that night.

In that time had you seen her around the Kaitaia area?... Yes, I had on numerous occasions.

[29] Mr Goodwin submitted that the passage suggested to the jury that the jailer had dealt with the appellant in his professional capacity and that it was suggestive of criminality. Constable Cooper said:

Now what in particular made you identify the accused this night?... I just know the accused I’ve dealt with her in the past in the watch house, I’ve worked in the watch-house.

What was she wearing that night?

QUESTION FROM THE COURT

You knew her didn’t you from the police around in Kaitaia?... Yes I know her.

[30] Constable Dempster who first spoke to the appellant about the arsons was asked “Did you recognise that person?” He replied “I had seen her, previous photos yes.”
[31] Mr Goodwin submitted that the evidence of the constables indicated that the appellant had had previous dealings with the police as her photographs were on a police record. He contended that there is breach of the principle now expressed in s 38(2) of the Evidence Act 2006:

38 Evidence of defendant's veracity

...

(2) The prosecution in a criminal proceeding may offer evidence about a defendant's veracity only if—

(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and

(b) the Judge permits the prosecution to do so.

That provision broadened the “tit for tat” principle in s 5(4)(b) of the Evidence Act 1908 which provided:

[An accused person] is liable to be cross-examined like any other witness on any matter, though not arising out of that person’s examination in chief; but so far as the cross-examination relates to any previous conviction of that person, or to that person’s credit, the Court may limit the cross-examination as it thinks proper, although the cross-examination may be permissible in the case of any other witness.

Cross-examination might be permitted of an accused who had attacked prosecution witnesses and elected to give evidence. The submission was that s 38(2)(a) expresses what had been a common law constraint on such cross examination.

[32] The Crown submitted that the witnesses were simply stating their reasons for being able to identify the appellant.
[33] In our view the relevant section is not s 38 dealing generally with veracity but s 7 providing that all relevant evidence is admissible unless the Act otherwise provides. That was in essence the pre-existing law. In so far as the evidence may have suggested previous dealings with the police so as to constitute propensity evidence tending to show misconduct (s 40(1)(a)), it is admissible only if its probative value outweighs any unfairly prejudicial value. The common law was generally to like effect.
[34] It would be unrealistic to expect that the relevant evidence from the jailer could have been given without the surrounding evidence of how he knew her. The same is the case with the evidence from the other officers. No challenge was made to the evidence at trial, nor was there objection to the omission to add to the warning about specific propensity evidence operating across counts a further warning about the use of general bad character.
[35] We do not regard the evidence as so significant as to entail miscarriage of justice, which would require consideration of the proviso.
[36] This ground too fails.

Sentence

[37] The Judge observed that the offending had had a detrimental effect on the entire township of Kaitaia. He considered that significant damage had occurred and that arson always entailed an element of danger. He took the arson of the Kaitaia Primary School as the lead offence and adopted a starting point of seven and a half years imprisonment. He could not identify any mitigating factors that would warrant deduction. He took into account the time over which the arsons were committed, the appellant’s persistence in the face of police efforts to apprehend her, and the fact that the arsons were committed for revenge at organisations blamed for supposed involvement in the loss of custody of a grandchild with whom she had been sleeping rough. He also paid regard to the effect of the arsons on individuals affected as well as the community at loss of an irreplaceable building. Considering that a minimum non-parole period was required to denounce, deter and protect others the Judge fixed a minimum non-parole period of sixty percent of the sentence.

Submissions

[38] For the appellant Mr Goodwin referred to judgments of this Court in R v Carter CA160/96 31 July 1996 (nine years’ imprisonment); R v Craig CA142/02 11 December 2002 (eight years imprisonment); and R v Thomson CA1/05 26 May 2005 (starting point of eight years’ imprisonment) and submitted that the appellant’s conduct was of a lesser order.
[39] He further submitted that the Judge had failed to pay adequate regard to the appellant’s personal circumstances. The first was the loss of custody of her granddaughter which could be seen as triggering the offending that followed. Then there was the psychiatric evidence to which we later refer.
[40] The Crown submitted that the sentence of seven and a half years was justified as was the minimum non-parole period.

Discussion

[41] Viewing the appellant’s conduct objectively, the term imposed was within range for what was very grave and sustained offending. There was evidence to support the Judge’s findings that the arsons were carried out for purposes of revenge and as to the gravity of their consequences. The victim impact statements, recounting the effect on teachers and pupils of the loss of the school, on an artist who suffered major loss in the destruction of the historic villa used by the Arts Society, on the occupier of a cottage and on others, and the sheer economic and social loss, make sombre reading.
[42] A more difficult question is the significance of the psychiatric and psychological evidence. While a psychiatric report had been obtained from Dr Seth concerning the appellant’s fitness to plead, given its terms no reference was made before or by the Judge to the principles discussed in R v Bridger [2003] 1 NZLR 636 at [42]:

In R v Nilsson (Court of Appeal, CA 552/99, 27 July 2000), which involved an appellant with a bipolar affective disorder, it was noted that a just balance has to be struck between denunciation of violence, acknowledgment of the grievous effects on the victim, recognition of reduced culpability of the appellant and the public interest, in terms of safety, of the appellant’s being helped, by supervision and deterrence, to keep on medication. In Tuia [CA 312/02 27 November 2002] at para [22] the Court observed that reduced culpability is a factor which ought to receive specific acknowledgment; that the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires recognition.

[43] There was placed before us a report by Anthony Litanovic, described as a trauma specialist who has been writing forensic reports since 1996 and spent five years as a private counselling consultant at Paremoremo Maximum Security Prison from 1998 to 2003. He holds a masters degree in psychology and has almost completed the formal requirements necessary to achieve registration as a psychologist.
[44] He expressed the opinion that the appellant’s conduct was the result of what he described as “Borderline Personality Disorder” (BPD), a condition defined by the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 4th ed (DSM IV). He states that the 1 to 2% of the general population who suffer from BPD tend to experience frequent, strong and long-lasting states of aversive tension, often triggered by perceived rejection, being alone or perceived failure. The negative emotional states particularly associated with BPD have been grouped into four categories: extreme feelings in general; feelings of destructiveness or self-destructiveness; feelings of fragmentation or lack of identity; and feelings of victimisation. He is of the opinion that the appellant suffers from all four of these negative states. He considers that her inability to deal with her extreme feelings in general and her feelings of destructiveness in particular when her granddaughter was taken from her intensified her mental disorder, resulting in the blindly destructive offending that caused havoc in the community. He stated that BPD is disproportionately represented in prison populations. An English study revealed that 23% of incarcerated men and 20% of incarcerated women are diagnosed with BPD.
[45] Mr Litanovic referred to Dr Seth’s report and his comment that the appellant has a:

...rather isolated and avoidant personality. She has a somewhat vulnerable personality in that she finds it difficult to say no to other people and at different points in her life she has suffered as a result of this.

[46] He was of the view that these observations are somewhat in line with the BPD diagnosis. Mr Litanovic stated that his report was more extensive and used the Minnesota Multiphasic Personality Inventory – 2 which points strongly to the existence of the BPD as a personality disorder. He concluded that psychometric assessment and research evidence corroborated the observations of his clinical interview as also showing that the appellant suffers from BPD as a mental disorder. He considered it important that a second psychiatric assessment of this diagnosis be obtained. Mr Litanovic considered that the appellant would be unlikely to respond well to psychological treatment but with appropriate medication for her mental condition combined with psychological treatment the prognosis for improvement of her condition would be likely to be much improved. He advised that if that diagnosis were confirmed and unless the appellant was given appropriate medication for her condition she would be likely upon release to continue to pose a serious threat to society.
[47] Mr Litanovic’s report was received by appellant’s counsel very shortly before the hearing and the Crown had had no opportunity to analyse it. We therefore accepted Mr Litanovic’s advice, and directed that the Registrar arrange for a further psychiatric report upon the issues raised.
[48] Dr Skipworth’s report of 3 March 2008 referred to Mr Litanovic’s psychological report that the appellant suffers from BPD. He emphasised the distinctions among personality disorder, mental illness and mental disorder. He said:

Mental disorder has both a clinical and legal meaning. In the legal sense, mental disorder is defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992 to define the circumstances under which an individual may be civilly committed under that statute. In a clinical sense mental disorder is a broad category covering all manner of clinical disorders including mental illness, drug and alcohol disorders, personality disorders, and mental impairments such as intellectual disability. Mental illness in this sense is a more restricted clinical category than mental disorder, including psychotic disorders such as schizophrenia, mood disorders such as bipolar disorder, and anxiety disorders.

[49] He expressed the opinion that there was no evidence to suggest that the appellant is suffering from any form of mental illness. While she is an unusual person in terms of her personality she is not unwell. He advises that personality can be understood as a way of describing a person in terms of patterns of inexperience and behaviour. They deviate sufficiently from what is considered the normal range of personality and may attract the diagnosis of “personality disorder” in terms of the standard classification system used in psychiatry. The dominant classification system in New Zealand is the American Psychiatric Associations Diagnostic Statistical Manual of Mental Disorders, 4th Edition (DSM IV). This manual describes a personality disorder as an enduring pattern of inexperienced behaviour that deviates markedly from the expectations of the individual’s culture, it is pervasive and inflexible, has onset in adolescence or early childhood, is stable over time, and leads to distress or impairment.
[50] Dr Skipworth recorded the appellant’s self-description as a hermit choosing to pursue a very solitary, socially isolated existence, and to this extent she could be described as having schizoid aspects to her personality. Such people with a borderline personality have prominent affective instability. They commonly have inappropriate, intense anger and difficulty controlling their anger and sometimes have stress related paranoid ideas. He advised that there is a sense in which the appellant has aspects of all of these disorders and her appropriate diagnosis is one of “Personality Disorder Not Otherwise Specified”.
[51] As to Mr Litanovic’s proposal that she receive appropriate medication, Dr Skipworth reports that the types of interventions most successful for improving the dysfunction and distress usually experienced by those with personality disorder are commonly in the realm of psychotherapy rather than medication although medication may be effective to treat some symptoms. But Dr Skipworth did not see any current indication for medication. He recorded that the appellant is likely to have continuing periods when she experiences stress and during these times is more likely to harm herself, as by starvation, than she is to exact revenge on others. In recent times this has led to repeated periods in the at-risk area of the women’s prison. During these times she will be seen by forensic mental health services so that her needs can be assessed.
[52] In response to a specific question whether the appellant suffers from a recognised mental disorder which could have consequences to the proper sentence to be imposed upon her, we take his answer to be no. He advises that her mixed personality disorder can be properly managed in prison with intermittent input from Regional Forensic Psychiatry Service.
[53] It is clear that the appellant is more readily prone to offending than most other members of the community but no authority was cited to suggest that that factor resulting from personality disorder rather than mental disorder or illness should result in a lesser sentence. Section 9(2)(e) of the Sentencing Act 2002 records as a mitigating factor that the offender has or had at the time the offence was committed, diminished intellectual capacity or understanding, but that is not this case. We do not doubt that others within the penal system suffer from similar personality disorder and that that is a factor in the overall approach of the courts to striking a just balance among the competing principles of sentencing recorded in s 8. While we are sympathetic to the burden sustained by the appellant and others by reason of their personality disorder, there is no legal basis for abating the sentence imposed, which was otherwise within a proper range.
[54] The appeal against sentence also fails and is dismissed.

Solicitors:
Crown Law Office, Wellington


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