R v Levy [2009] NZCA 126 (7 April 2009)

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R v Levy [2009] NZCA 126 (7 April 2009)

Last Updated: 4 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA668/2008

[2009] NZCA 126

THE QUEEN

v

LINDA KATHLEEN LEVY

Hearing: 30 March 2009

Court: Robertson, Gendall and Keane JJ

Counsel: M I Koya for Appellant
J M Jelas for Crown

Judgment: 7 April 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

Introduction

[1] On 30 May 2008 Linda Levy, a theatre nurse who had never before offended, was convicted after trial in the District Court, Auckland, of intentionally damaging by fire her BMW car on 4 July 2006, to obtain a benefit or to cause a loss. She was later sentenced by the trial Judge, Judge Gittos, to five months home detention.
[2] The Crown case was that at 11.30 pm on 4 July 2006 Ms Levy set fire to her car in a carpark in Lovers Lane, Auckland Domain, using two litres of Fuelite accelerant she had purchased most probably the day before from a dairy near her home in Parnell. She then owed on the car $17,766. It was insured for $23,800. Her intent was a fraudulent insurance claim to enable her to pay off the car.
[3] The backflash, when Ms Levy lit the accelerant, the Crown case was, resulted in her suffering burns to her upper body and right arm and flash burns to her face. She returned to her Parnell address and, unable to withstand the pain, telephoned the police claiming she had been abducted and set on fire inside her car; a complaint she repeated to a police officer when taken to hospital.
[4] The police soon disbelieved Ms Levy and charged her. On this appeal against conviction only, Ms Levy contends primarily, her counsel at trial, Mr Kee, conducted her defence contrary to her instructions and incompetently, in failing to challenge the Crown’s circumstantial case against her in four critical respects, resulting in a miscarriage of justice.
[5] A late distinct ground of appeal, added unopposed, was that even though Ms Levy was not identified as having made the Fuelite purchase, the Crown’s case was that she was not dissimilar to the purchaser and the Judge misdirected the jury in suggesting she may have been the purchaser and also erred in failing to give an identification warning.

Misconduct of defence

[6] In R v Sungsuwan [2006] 1 NZLR 730 the Supreme Court held that where counsel error is raised what must be established under s 385(1)(c) of the Crimes Act 1961 is that there has been a miscarriage of justice; that the verdict is unsafe.
[7] Any error, the majority said at [64] – [67], must be material to the safety of the verdict. If it is not, there is no need to go further. If it may be material, further inquiry will be called for. Conversely, where an error is on its face extreme that can be decisive. Decisions taken reasonably in the interests of an accused may in retrospect be open to question. Unless they prejudiced the outcome they will not be material. As the majority said at [66]:

Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.

[8] That said, the majority concluded at [70], the ultimate question is always whether ‘justice has miscarried’. Even if defence counsel was competent at trial, objectively speaking, the Court on appeal must ensure that justice has been done.

Defence case and instructions

[9] Ms Levy’s offence, the Crown contended at trial, was not spur of the moment. She had been intent on a claim for some time. Her car had been stolen earlier in 2006 and, though she had a secure carpark, she left it out on the road afterwards hoping it would be stolen again. To get rid of the car she attempted to recruit an accomplice through Geraldine Braid, a fellow nurse and friend. This attempt culminated in an exchange of text messages the day before the car was set on fire.
[10] Also significant to the Crown case was that in July 2006, possibly the day before the fire, a woman not unlike Ms Levy had purchased two bottles of Fuelite from the Wyvern Dairy, close to where she lived. Two indistinguishable empty Fuelite bottles were discovered at the scene. Finally, the Crown case was, the burns Ms Levy suffered were entirely consistent with an accidental injury.
[11] Ms Levy held at trial to her complaint that, far from setting her own car alight, she had been abducted, assaulted and set fire to, when her abductor set fire to the car. She escaped and extinguished the flames to her clothing. Unable to raise help, she went home and rang 111. She was taken to hospital by ambulance. She told the police what had happened to her but they did not believe her.
[12] To erode the Crown’s theory that she was the offender Ms Levy advanced her good character. She had never been in trouble with the police. She challenged the motive ascribed to her. She was financially secure. She denied the Fuelite purchase. She said she went to the Wyvern Dairy regularly and she had not been identified as the purchaser. On the day of the fire she had booked the car to have a broken window repaired the following day. Her burns were consistent with her complaint.
[13] It is Ms Levy’s contention that her defence would have availed if her counsel had adhered to her instructions. He did not and a miscarriage of justice resulted. Mr Kee accepts that Ms Levy did wish him to pursue each of the four matters on which she now relies but says that, after they had reviewed each, she accepted his advice that none ought to be pursued.
[14] On our own review of the case, and of Mr Kee’s evidence, we accept that in not pursuing these four matters he acted consistently with his instructions. The only issue can be whether, in any one of those tactical decisions, he made an error material to the safety of the verdict.

Evidence of premeditation

[15] Mr Kee’s first error, Ms Levy contends, was in not challenging Geraldine Braid on one highly material matter, whether Ms Levy had attempted to recruit Ms Braid’s 18 year old son to help her get rid of the car. Ms Levy, who denied this in her own evidence, wanted Mr Kee to put to Ms Braid that she would never have attempted to do that. She had recently attempted to assist the son, or Ms Braid, when the son was in trouble.
[16] In deciding whether and how far to challenge Ms Braid, Mr Kee says, he first assessed the video interview of Ms Braid when she was suspected of being complicit. She then made a statement potentially against her own interest and referred to a person who might have assisted Ms Levy. Mr Kee considered that if this came out it could only bolster the Crown case. Ms Levy’s essential point was that she did not ask Ms Braid to recruit anyone. Mr Kee elected to cross-examine Ms Braid more obliquely.
[17] On our own review of Ms Braid’s situation, we are satisfied that Mr Kee’s decision was the only one sensibly open.

Ms Braid’s evidence

[18] Ms Braid said in her evidence in chief that at some point during 2006 Ms Levy told her that the car had become a burden. The monthly payments were steep. A lump sum had to be paid at the end. This was a burden Ms Levy wanted to rid herself of. She asked Ms Braid if she could recruit someone to help.
[19] Ms Levy, according to Ms Braid, first had in mind Ms Braid’s own son, then aged 18 and seemingly recently in trouble with the police. Ms Braid was not willing to recruit him. She told Ms Levy that she knew someone else who might help. Ms Levy asked her to recruit that person. Ms Braid said that she had no intention of doing so but held out that she would. She also urged Ms Levy not to persist in this strategy.
[20] On 3 July 2006 there was an exchange of text messages between Ms Levy and Ms Braid. The first at 12.18 pm from Ms Levy to Ms Braid said ‘I have sorted a plan for 2 nite but need the man so I can keep my keys help xo’. Ms Braid replied at 7.48 pm ‘He has agreed 2 c me only at 8.30 let u kno’, only to send Ms Levy a further text at 9.20 pm, ‘Darling he wont do it. sory.’
[21] On 5 July 2006, the morning after the offence, Ms Braid said, she received a voice message from Ms Levy, who said that she was in hospital and would not be able to work. To that Ms Braid replied:

Hi Lyn, seriously sorry 4 not coming thru 4 you. Hope your recovery is xtra speedy and if there is anything i can do 4 you u must let me kno. Your a good lady always remember that x

[22] Mr Kee elicited that from Ms Braid that Ms Levy was a highly competent and reliable theatre nurse, that she was honest, that they confided in each other and that Ms Braid respected her.
[23] Mr Kee elicited that in April 2006 Ms Levy’s car had been stolen and that she had carried the cost and that in answer to another nurse at the surgery, who suggested that it might have been better had the car never been recovered, Ms Levy had replied ‘yeah, it crossed my mind’. Ms Braid accepted that there might have been room for misinterpretation and that Ms Levy had never mentioned setting the car alight.
[24] Ms Braid would not confirm, however, the evidence Ms Levy later herself was to give, that Ms Levy’s text to her at 12.18 pm on 3 July had nothing to do with the car, but concerned rather Ms Levy’s unsatisfactory relations with two men. When asked to clarify this by the Judge, Ms Braid said:

She had tried to involve me in ... disposing of the car and she texted me and said ‘I’ve sorted the plan, but just need the man so I can keep my keys.’ I think its fairly self explanatory.

[25] Mr Kee fared no better when he put to Ms Braid that, in her two texts to Ms Levy in response, all she was speaking about was picking up her own partner that evening. Ms Braid accepted that she next heard from Ms Levy by voice message on 5 July, the morning following the fire and that she knew nothing of what happened on 4 July. But she again confirmed to the Judge that the text messages had followed conversations about disposing of the car.

Conclusions

[26] Clearly the challenge to Ms Braid’s evidence that Ms Levy wanted Ms Kee to advance would have been futile. It could have been highly dangerous to her defence, that she herself was the victim of the true offender.
[27] Had the challenge been made Ms Braid is most unlikely to have retracted. The jury is most unlikely to have concluded that Ms Braid’s evidence was improbable, buttressed as it was by the text messages. The Crown could have asked what sort of trouble Ms Braid’s son had been in, highlighting the role he might have been equipped to play. Ms Braid’s evidence might have become more adverse to Ms Levy than it was.
[28] The challenge was also of little consequence when set against the text messages. The first from Ms Levy could not have been more telling. Those from Ms Braid were consistent. They spoke for themselves. Ms Levy’s attempt to explain them away before the jury was forced and artificial and could only have brought home to the jury that they tied Ms Levy to the offence.

Possible purchaser

[29] The second challenge that Ms Levy wished Mr Kee to make to the Crown case, that she had burnt her car to pay off what was owing, was by calling Brent Wirth, a friend of her son’s, who had expressed interest in purchasing the car.
[30] In an affidavit provided since the trial Brent Wirth says that in 2005 or early 2006 he and Ms Levy’s son, Damien, made a trip to Wanganui in the car and on their return he told Ms Levy he would seriously consider buying the car if she ever wished to sell. He would have borrowed to do so.
[31] Before the trial, first scheduled for 5 November 2007, Ms Levy approached Mr Wirth. In a note attached to an email Mr Wirth sent to Mr Kee he agreed to confirm in evidence what he had then said to Ms Levy. The note ended in this way:

... I told Lyn Levy on previous occasions, that if she were ever interested in selling her, BMW I would love the first option to purchase it, should I have been in the financial position to do so.

[32] Mr Kee did attempt conscientiously to enlist Mr Wirth as a potential witness. He was sceptical about what Mr Wirth could add but spoke to him on 1 October 2007 and decided he might create a helpful impression before the jury. They were to speak the following Saturday at his chambers.
[33] Mr Wirth did not attend. Later that day he told Mr Kee that he did not want to get involved. Any evidence that he could give was insignificant. Mr Kee told him that his evidence could be important and encouraged him to assist. He telephoned Mr Wirth three times in the days before 5 November 2007. Mr Wirth said he could not take the time off work for the trial or to see counsel. He was so reluctant, Mr Kee concluded, he was unlikely to impress the jury if called.
[34] Equally tellingly, Mr Kee considered, Ms Levy had not in fact contacted Mr Wirth before the car was destroyed. And, if Ms Levy had done so, she was unlikely, as he then understood from inquiries he had made, to have been offered more than $10 - $11,000, the then likely market value, well below her existing liability. Had Mr Wirth been called the jury might have been alerted to these two difficulties.
[35] Mr Kee’s only sensible course, we consider, was to concentrate as he did on Ms Levy’s defence, relying on the account she had given when she first spoke to the police, and to jettison any attempt to call Mr Wirth.

Fuelite purchase

[36] The third challenge that Mr Kee did not make, as Ms Levy initially wished him to, was in respect of the evidence linking her to the Fuelite purchase. To do that the Crown relied on the daughter of the proprietors of the Wyvern Dairy, Yun Yun Guo, who had made such a sale in July 2006. To fix the date as 3 July the Crown relied on a transaction on Ms Levy’s part at the dairy that day. The challenges Ms Levy wanted made need to be set against the evidence Ms Guo gave.

Ms Guo’s evidence

[37] In July 2006, Ms Guo recalled, without being able to be more specific as to the date, she made a sale of Fuelite that she described in this way:

A lady came in to buy two bottles of Fuelite ... she asked for turpentine, so I pointed to the top of the shelf where we kept all our stock, and she selected a clear bottle, but she was not able to reach, so I got my dad to come to help her.

[38] When asked what made her recall this she said, ‘the fact that she was unable to reach the top of the shelf and I had to get my dad to come from the back of the shop to help her.’ She had never before sold two bottles of Fuelite to one person at the same time. When asked to describe the woman she said, ‘she’s a white lady, maybe middle 30 to 40, maybe’. When asked whether she remembered anything else she said ‘Not really’. She could not remember whether the woman had purchased anything apart from Fuelite. She was clear that the woman was alone.
[39] The only challenge that defence counsel made was to Ms Guo’s evidence that the Fuelite bottles recovered were exactly the same kind as those sold at the dairy and at the same price. The pricing labels seemed to her similar. He did not succeed in shaking her.

Challenges proposed

[40] Ms Levy was, she says, a customer at the dairy for a long time. She purchased goods there twice a week. It was run by a Chinese family, a husband, wife and daughter, and all three came to know her. All three would reach for the brand of cigarettes she smokes even before she spoke. She was confident that any one of them would be able to say she was not the purchaser of the Fuelite.
[41] To confirm that she was well known at the dairy and that she had the ability to do what the woman who purchased was unable to do, reach to the top shelf for the Fuelite, Ms Levy asked Mr Kee to engage a private investigator. Wayne Kiely was engaged.
[42] He went with Ms Levy to the dairy on 20 September 2007 and then prepared a witness statement for Mr Kee. As they approached the counter, he said, the woman behind reached towards the cigarettes and asked Ms Levy whether she wanted any that day. She clearly knew Ms Levy and the brand she smoked. Ms Levy then demonstrated that she could reach to the shelf on which the Fuelite was kept. It appeared to Mr Kiely at least seven feet high, but Ms Levy was able to reach a bottle of tomato sauce some three inches back, as he recorded in two photographs.
[43] Ms Levy wanted Mr Kee to put to Ms Guo directly that she was not the purchaser. Mr Kee ought also, Mr Koya submits, to have interviewed the father, who was not to be a Crown witness, to have him exclude her as the woman he helped. Ms Levy wanted Mr Kee to call Mr Kiely. In failing to do any of these things, she contends, he erred.

Conclusions

[44] Mr Kee decided that it would be foolhardy to try to ask Ms Guo to exclude Ms Levy as the purchaser. She had not positively identified her. She was not asked to make a dock identification. The purchase had been made in July 2006. Ms Levy had been a frequent customer since then and was in the dock. The risk of transference was real. To have interviewed Ms Guo’s father would have been no less foolhardy. There was no way of predicting what he might have said.
[45] Mr Kee chose rather to highlight before the jury how weak the Crown’s case in this respect was. Ms Guo’s description of the purchaser was vague. It could have applied to a very large number of women. Ms Guo’s age estimate, that the woman was in her mid 30s to 40, tended to exclude Ms Levy, aged 55. Ms Guo had not been asked to identify Ms Levy to the jury as the purchaser.
[46] Mr Kiely had demonstrated that Ms Levy could reach the top shelf where the Fuelite was kept. But Mr Kee had visited the shop a number of times when preparing the defence, and seen that items on that shelf could stand two deep. In her statement to the police Ms Guo had said that the purchaser could reach the first bottle of Fuelite, not the second, and that is why she had asked her father to help. That Ms Levy could reach the outermost item, he concluded, was hardly enough.
[47] Mr Kee chose rather to demonstrate, to the extent that he could, that Ms Levy could not have been the purchaser. In this he was successful in a significant respect. The Crown case was that the Fuelite could well have been purchased on 3 July, because Ms Levy completed a $42 transaction at the dairy that day. Counsel was able to demonstrate that this was an inconsistent largely cash-out transaction.
[48] In each of these decisions, we consider, Mr Kee took the course best calculated to preserve and to advance Ms Levy’s defence.

Record of complaint

[49] Mr Kee’s final alleged error was in formally admitting as a fact that the notebook and jobsheet entries made by the constable, who received her complaint on 5 July on the way to and at Middlemore Hospital, were ‘a true record of the general sense’ of what she then said. At the time she was medicated with morphine and the constable did not take a verbatim account.
[50] This error was said to be compounded when Mr Kee did not object to Crown counsel using that incomplete record to test her evidence consistent with her complaint and to put to her that she had changed her story to counter the Crown’s expert evidence at trial.
[51] Mr Kee acknowledged that, when Ms Levy and the constable spoke, she was medicated and that the constable’s note was not verbatim. She was spoken to as a complainant not a suspect. But he reviewed the constable’s note with Ms Levy several times and she confirmed that while it was less than complete, it was fundamentally accurate. Indeed, it was critical to her defence. It was a record of her complaint, immediately after the incident, when she was traumatised and medicated; to be accepted as true.
[52] That Ms Levy was affected by medication, and that the note was not verbatim was elicited from the constable. Ms Levy gave evidence that the note was generally accurate. The agreed admission of fact merely confirmed that it was a true record in that general sense. Consistently, Mr Kee says, he did not object when Ms Levy was cross-examined, against the note, as to her credibility. Each point taken went to a detail of her account. None was unfair. She was well able to cope.
[53] In this assessment, we consider, Mr Kee was right. Ms Levy needed to have before the jury in the most concrete way the complaint she immediately made. Without that she did not have the beginning of a defence. She suffered no substantial disadvantage.

Identification warning

[54] The new appeal point was that the Judge misdirected the jury on the significance to be given to Ms Guo’s evidence concerning the purchaser when he said this:

... There has been a proposition that the accused was a reasonably frequent customer of the dairy. Ms Guo, the dairy proprietor’s daughter, had a particular recollection of someone who answers the description of the Accused, buying two bottles of this stuff which was an odd purchase in two ways. Firstly, because it was an odd thing for somebody to buy two bottles of a thing like that at once and secondly because this person could not reach them on the shelf and she had to fetch her father out of the back of the shop to assist. So this is something that stood out in her mind.

[55] This ground is based on a misconception. In saying this the Judge was not giving the jury a direction. He was outlining to the jury an aspect of the Crown’s case, which he countered succinctly, when outlining the defence case:

As to the dairy, the defence counsel says that there is no positive identification of the accused as the purchaser of this material from the dairy and there is no positive identification of the material used at the scene as having come from the dairy. There are only indications which the Crown suggests that those things might be so, but they are not matters which are positively established.

[56] That latter statement fairly reflected the state of the evidence. The Crown had not, by calling Ms Guo, or on any other basis, positively identified Ms Levy as the arsonist or even the purchaser of the Fuelite. Nor did Ms Guo’s evidence come close to such an identification. The Judge was under no duty under s 126 of the Evidence Act 2006 to warn the jury of the danger of a mistaken identification. There was no sensible warning he could have given. Indeed, had he attempted to do so, he might only have invested Ms Guo’s evidence with a significance adverse to Ms Levy.

Conclusion

[57] This appeal, founded on the joint grounds that counsel for the defence failed to adhere to his instructions and made significant errors, has no basis. Mr Kee prepared Ms Levy’s case meticulously. He advanced her defence, an outright denial, in a most careful and prudent way. While Ms Levy might have wished him to take the points advanced on this appeal, he had the best of reasons for not doing so and, we are confident, she accepted his advice. There is nothing to suggest that he departed from her final instructions. The Judge gave no misdirection. There has been no miscarriage of justice.

Result

[58] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington