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Leonard v R [2010] NZCA 171 (5 May 2010)

Last Updated: 10 June 2010


IN THE COURT OF APPEAL OF NEW ZEALAND

CA642/2009 [2010] NZCA 171

BETWEEN VINCENT PATRICK LEONARD
Appellant


AND THE QUEEN
Respondent


Hearing: 3 and 4 May 2010


Court: Chambers, Potter and Miller JJ


Counsel: K C Bailey for Appellant
N P Chisnall and A L Patterson for Crown


Judgment: 5 May 2010 at 10.30 am


Reasons: 2 June 2010


JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

B All the verdicts are set aside and the convictions are quashed.

C No order for retrial.


REASONS OF THE COURT


(Given by Chambers J)


Table of Contents

Para No
An arson in Whangarei [1]
Grounds of appeal [5]
Were the verdicts unreasonable?
The test [9]
The Crown case against Mr Leonard [11]

(a) An inside job and Mr Leonard had been an insider [12]

took place [34]

(c) Mr Leonard attempted to set up an alibi [37]
(d) Mr Leonard had a motive [39]
(e) The surveillance camera evidence [60]

(f) The accelerant the arsonist used [90]
Conclusion [94]
Result [101]

An arson in Whangarei

[1] On the morning of Sunday, 12 November 2006, somebody intentionally started a fire at the business premises of Pat Gavin Kitchens in Whangarei. The fire caused considerable damage. On the Monday, Detective Andrew Clubley was assigned to the investigation. Within two days he thought he had cracked the case. The culprit, he believed, was Vincent Leonard, the former Production Manager of Gavins. That day, he swore an affidavit in support of an application for a search warrant. In it, he expressed the belief that Mr Leonard “was responsible for the arson and burglary”. The affidavit contained little to support that belief. But the affidavit suggested the police had one piece of evidence that was telling. That was footage from surveillance cameras on a neighbouring building. According to Detective Clubley, those cameras had “captured a person fitting the description of Vincent Leonard” at about the time the fire occurred. A search warrant was issued, permitting the police to search Mr Leonard’s home.
[2] The next morning, Detective Clubley swore an identical affidavit in support of an application to search Mr Leonard’s work address. That warrant too was issued. Before those warrants were executed, Detective Clubley arrived unannounced at Mr Leonard’s workplace and said he would like to speak to him about the arson at Gavins. He invited Mr Leonard to come to the Whangarei Police Station. Mr Leonard agreed. The detective gave Mr Leonard his rights. Mr Leonard agreed to be interviewed, the interview being recorded on videotape. Mr Leonard’s account was entirely exculpatory. Immediately after the interview, Mr Leonard was arrested and charged with the arson and burglary. While this was going on, other police officers were executing the warrants at Mr Leonard’s home and workplace. They seized various items of interest.
[3] Mr Leonard’s first trial resulted in a hung jury. His second trial was aborted part way through.[1] The third trial, which took place in June last year, resulted in Mr Leonard being found guilty of burglary, arson and causing intentional damage. The trial judge, Judge Duncan Harvey, subsequently sentenced Mr Leonard to six years’ imprisonment. At each trial, Mr Leonard’s defence was that he was not the arsonist: the police had the wrong man.
[4] Mr Leonard appealed his conviction and sentence.

Grounds of appeal

[5] Mr Bailey appeared for Mr Leonard on this appeal. Mr Bailey had not appeared for Mr Leonard at his trial. We are grateful to Mr Bailey for his submissions.
[6] Mr Bailey raised three grounds of appeal. We can dismiss two of them shortly. The first was that the trial should not have taken place in Whangarei because of an article in the Northern Advocate some six months before. Mr McKean, Mr Leonard’s trial counsel, had not sought to have the trial moved – and rightly so. Any such application would have been doomed to failure. The article referred to Gavins going into voluntary liquidation, a step Colin Gavin, Gavins’ General Manager, attributed in part to the “disastrous fire” in 2006. The only reference to Mr Leonard in the article was in the final paragraph, where it was stated that he had been charged in connection with the fire, that the jury failed to agree at his trial, and that he was due to be retried in mid-2009. There is no way such limited publicity so far in advance of the third trial could cause any concern.
[7] The second ground was that the evidence of Rodney McCourt, a forensic imagery analyst called by the Crown, was inadmissible. Mr Bailey submitted that the jury was not “likely to obtain substantial help from [Mr McCourt’s] opinion”, with the consequence that the evidence failed the test for admissibility of expert evidence under s 25 of the Evidence Act 2006. Mr McKean had not challenged the admissibility of Mr McCourt’s evidence at trial. He was right not to do so. Mr McCourt’s evidence was clearly admissible under s 25 – and indeed, if properly analysed, was not adverse to Mr Leonard’s defence. We shall refer to Mr McCourt’s evidence in some detail later in these reasons.
[8] The third ground of appeal was that the jury’s verdicts are “unreasonable or cannot be supported having regard to the evidence”: see the Crimes Act 1961, s 385(1)(a). For the reasons that follow, we are satisfied that this ground of appeal has merit.

Were the verdicts unreasonable?

The test

[9] The words of s 385(1)(a) mean what they say. The Supreme Court made this clear in R v Owen:[2]

There is, in the end, no need to depart from the language of Parliament. The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.

[10] “The required standard” in the present case is “beyond reasonable doubt”. A verdict is unreasonable, therefore, if, having regard to all the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that Mr Leonard was the arsonist. In analysing the evidence, we must be conscious of the limits of our review function, as set out by the Supreme Court.[3]

The Crown case against Mr Leonard

[11] The Crown case was circumstantial. It had five strands:
[12] We examine these five strands in order. We shall then explore briefly a sixth strand of evidence, one which did not assist the Crown case. That evidence related to the accelerant the arsonist used.
(a) An inside job and Mr Leonard had been an insider
[13] The police found no evidence that any outside door to Gavins had been forced. This strongly suggested the arsonist had a key. Further, shortly before the fire, someone entered a code which disarmed the alarm system. That too suggested the arsonist was an insider with access to alarm codes or at least to a particular code.
[14] At the time, Gavins employed about 50 people. The evidence is unclear as to exactly how many of them had keys to the building, but it is clear quite a number of them did. In addition, cleaners, employees of United Carriers and employees of Gavins’ security firm had keys. All of these key holders were potentially suspects. And, of course, any one of them might have given his or her key to someone else for this or an unrelated purpose; the key holder did not have to be the actual arsonist but may simply have been party to an arson committed by another. The police appear to have spent little or no time in eliminating key holders as suspects. On the contrary, for reasons we shall come to, Detective Clubley reached a view that Mr Leonard was the arsonist at a very early stage of the investigation, which appears to have removed the need in his mind to investigate other possible suspects.
[15] It was common ground at the trial that there were two kinds of keys. One kind opened the doors to Gavins’ showroom. The showroom key was of a kind that anyone could get cut – and indeed, according to Mr Gavin, the showroom key was cut on occasions. Mr Gavin said he had the responsibility for issuing showroom keys. He was not sure how many employees would have had showroom keys at the time of the fire, but thought that it was “probably around ten”.
[16] The other key, which was a security key which could not be copied, was to the factory. Because of poor record-keeping, no one seemed to know how many people held factory keys. The evidence did not establish whether the arsonist had entered through the showroom doors or a factory door.
[17] So we have a large number of people who had keys or potentially had keys. Did Mr Leonard have a key? In his video interview, Mr Leonard said he had only ever had one key, a factory key, which he had given to Mr Gavin on the day he left Gavins’ employment, 10 August 2006. Mr Gavin confirmed, in his examination-in-chief, that to the best of his knowledge Mr Leonard had never had a showroom key. He also confirmed that Mr Leonard had returned his factory key when he left.
[18] Obviously, this was a problem for the police hypothesis and later the Crown case. Detective Clubley realised this at the time he applied for the search warrants. In his affidavit, he said that Mr Leonard, during his employment at Gavins, “had possession of keys to enter the building and it is unknown whether these were returned on his departure”. Detective Clubley did not state the basis for this belief, which is not borne out by Mr Gavin’s evidence. Detective Clubley also referred to the fact that a company vehicle, which had been parked inside the factory premises, had been found with its keys missing. Those keys were said to include “a car key, a factory key and a remote control”. If these keys were truly missing, that could not constitute evidence implicating Mr Leonard as, since the vehicle was inside the factory, it did not explain how Mr Leonard could have got into the factory to steal them. If these keys truly had been stolen, that would potentially be evidence that a current insider (by which we include all who had had access to the factory in the days immediately before the fire) had taken them, perhaps as preparation for the arson he or she intended to commit. Although the Crown led evidence concerning these missing keys, Mr Chisnall, senior counsel for the Crown on this appeal, accepted their disappearance added nothing to the Crown case against Mr Leonard. If anything, it detracted from the Crown case.
[19] Detective Clubley, in his application for the search warrants, said that the police would be searching for “keys to the premises of Pat Gavin Kitchens” and “a key ring and keys for a Pat Gavin Kitchen’s vehicle”. The police did seize keys during their searches. Police later tried them on Gavins’ doors. None fitted.
[20] Faced with this problem, the Crown was forced to speculate that Mr Leonard must have secretly kept a key when he left Gavins on 10 August, a key which he either hid or threw away after the arson. There was no evidence to support this speculation. Of course, if all the other evidence was sufficiently strong for the jury to be sure of Mr Leonard’s guilt, then perhaps this inference could be drawn. As we shall show, however, the other evidence is not of that quality.
[21] Further, as Mr Chisnall acknowledged, the Crown speculation also meant that Mr Leonard must have been planning, if not the arson, at least something else nefarious, from before he left Gavins’ employ more than three months before the arson. Why else would he return to Mr Gavin the one key we know he had, but secretly keep another key? Of course, it is possible he had had a simmering evil intent for many months, but such a thesis does not fit well with the evidence in the case. We shall come to the evidence relating to motive below. Suffice to say at this stage that Mr Leonard left Gavins of his own free will, having been offered another very attractive position in Whangarei. Mr Gavin had been keen to keep him, but Mr Leonard had indicated a view that Gavins would be unable to match his new terms and conditions. It is clear that Mr Leonard had, during his employment with Gavins, got on well with Mr Gavin. They drank together, according to Mr Gavin, “quite often” and, from Mr Gavin’s perspective, Mr Leonard left Gavins “on good terms”. The company put on a barbecue for Mr Leonard on the day of his departure. Mr Leonard’s evidence, as given in his video interview, was to the same effect. When Detective Clubley asked him whether there had been “ill feeling” between him and Mr Gavin, Mr Leonard had answered “absolutely not”. So the background relationship between Mr Gavin and Mr Leonard, as revealed by the evidence, was not supportive of the Crown’s speculation as to how or why Mr Leonard had a key.
[22] So far we have been discussing how the arsonist got into the premises. There is another problem, again concerning keys, inside the premises. It was common ground at the trial that the arsonist entered the manager’s office and the administration office and had started fires in them using an accelerant. Both these offices had locks on the doors. The cleaners had cleaned the offices on the Friday night before the fire and, according to them, had then locked the doors. Neither office user, Mr Gavin and Colleen Houlker, the financial controller, had been to their offices between Friday night and the fire on the Sunday morning. (Mr Gavin had called into work on the Saturday morning, but just for ten minutes to pick up the company trailer before going to his beach place.) It was common ground at the trial that the locks had been installed only after Mr Leonard had left Gavins. Spare keys to these doors were kept, according to Mr Gavin, in “one of the desks in the administration area”.
[23] It is easy to see how the arsonist, if a current insider, had unlocked these internal doors in order to enter the offices to start fires. Either he or she might have been issued with a key – key holders included the cleaners – or he or she might have known where the spare keys were kept. It is much more difficult to see how Mr Leonard would have known where to find these spare keys.
[24] This led to alternative Crown hypotheses. First, the Crown postulated that, contrary to the cleaners’ evidence that they had locked the doors on finishing cleaning on the Friday night, they had in fact left them unlocked. That is possible, but speculative. The second alternative is that Mr Leonard must have broken the doors down. Again, that is possible; the doors were so badly damaged in the fire that it was impossible to tell whether they had been locked or unlocked, opened with a key or broken down. Suffice to say, however, there is no direct evidence to support the hypothesis that the arsonist broke down the doors.
[25] In summary, therefore, it is possible that, contrary to the cleaners’ evidence, the doors were left unlocked or that Mr Leonard broke down the doors with some form of implement. At least equally likely, however, is the hypothesis that the arsonist either had a key or knew where to find one and simply unlocked the doors.
[26] We now come to the third piece of evidence pointing to this being an inside job. This is, without doubt, the strongest piece of evidence against Mr Leonard. The arsonist knew an access code which disarmed the alarm. The Crown case was that the access code used was Ms Houlker’s and that Mr Leonard knew it.
[27] But even here the Crown case had its weaknesses.
[28] First, we do not know the actual PIN entered by the arsonist. It is clear that it came up at the security firm as the PIN of “user 11”. There was no “user 11” on the records of United Security Northland, Gavins’ security firm; that may simply indicate their records were out of date. User 11 was recorded on a handwritten Gavins’ list as Ms Houlker. But Gavins’ records were also erratically kept and, at least for some other users, were incomplete or out of date. Unfortunately, no one tested the system after the fire to see whether it was Ms Houlker’s PIN which triggered the “user 11” notation. Douglas Shearer, a senior technician at United Security, accepted in cross-examination that no one had asked him to check whose PIN triggered “user 11” or, for that matter, the correlation between any user’s PIN and the user number it triggered.
[29] Secondly, various people within Gavins and United Security had the means, through the master code, to alter the entire system, including reallocating codes, user names and PINs.
[30] Thirdly, and allied to that, there was some evidence that an employee, the day before the fire, had entered his code, but it had not disarmed the alarm. In the end, with alarm blaring, he rang Mr Gavin, who gave him his PIN. The employee then entered that PIN, which successfully disarmed the alarm. Possibly this was evidence that someone had tampered with codes.
[31] Fourthly, Ms Houlker had written her PIN on the back of her diary. It is possible the arsonist may have seen that.
[32] Fifthly, Mr Leonard, in his video interview, had denied knowing Ms Houlker’s PIN. Although he had assisted her when setting her up as a user, he denied having entered her PIN or knowing it.
[33] Evaluating this evidence was, of course, a matter for the jury. Overall, this piece of evidence was helpful to the Crown, but it was by no means incontrovertible that it was Ms Houlker’s PIN which had been entered by the arsonist or that only Ms Houlker and Mr Leonard knew it (if it was her PIN which was entered).

(b) Mr Leonard was away from his home when the arson took place

[34] The second strand of the Crown case was that someone from the Waipu Golf Club had rung the Leonards’ home at 8.30 am on the morning of the fire, which call went to a Telecom answering machine. Someone retrieved the call at 10.07 am. The Crown invited the jury to infer that the reason no one answered the 8.30 am call was that, by that time, Mr Leonard had already left home in order to commit the arson. He picked up the message, the Crown said, when he returned home after committing the arson.
[35] The police obtained this evidence from Telecom after Detective Clubley’s interview with Mr Leonard on the morning of 16 November. Detective Clubley asked Mr Leonard to account for his movements on the morning of the fire. He said his wife had left at about 8.15 am to play golf. Her tee-off time was 8.45 am. Mr Leonard had intended to follow to play a round with some of his friends, but, according to him, his wife had rung from the club to say not to bother coming up because “all the guys are watching the rugby”. “The rugby” was a test between the All Blacks and France being played in Lyon. Mr Leonard said he had forgotten about the rugby. He then turned on the game and watched it off and on. He was also busy that morning loading branches and clippings from his garden onto the back of his utility vehicle. There is no dispute he was loading the vehicle that morning at some point, as his neighbour, Peter Gardner, who gave evidence, reported seeing him at about 10.30 am, at which time he saw Mr Leonard with “a substantial load” of foliage on the back of his utility.
[36] This evidence provided some support for the Crown case, but not much. It was entirely possible, after all, that Mr Leonard had missed his wife’s 8.30 am call on the landline because he was out working in the garden. Mrs Leonard, having not got him on the landline, might then have immediately rung him on his mobile phone. Those records were apparently not checked. Later, he noticed there was a message waiting on the landline and cleared it. We do not overlook that, when Detective Clubley asked Mr Leonard about this call, Mr Leonard said he thought it had come through on the landline rather than his mobile. That may have been a lie, as the Crown would have it. But equally he might have been mistaken. How accurately do any of us remember on which phone we took an inconsequential call days afterwards?

(c) Mr Leonard attempted to set up an alibi

[37] Part of the Crown case at trial was that Mr Leonard had attempted to set up an alibi defence by immediately going outside after returning home, and then, to quote the prosecutor in her final address, by starting to work in the garden “to be seen”. Mr Chisnall accepted there was no evidence to support the suggestion that Mr Leonard had purposely gone into the garden “to be seen”. Mr Gardner’s coming by seems to have been entirely fortuitous; there is no evidence to suggest Mr Leonard knew he would be passing. It is clear from Mr Gardner’s evidence that a substantial amount of the foliage to be carted away was already on the back of the utility when he arrived. He then assisted Mr Leonard for a short time in loading more.
[38] This strand of the Crown case bears no weight at all.

(d) Mr Leonard had a motive

[39] It is axiomatic that the Crown does not have to prove a motive. But, of course, if the Crown can prove a motive, that can be a strand in its case against an accused. Here, the Crown relied strongly on an assertion that Mr Leonard had a motive to commit the arson. Indeed, it is clear that Detective Clubley latched onto the alleged motive very early on in his investigation. It appears to have contributed to the truncated nature of his investigation and, in particular, to a failure properly to investigate other insiders before eliminating them from the inquiry. Detective Clubley, in his affidavit in support of the search warrants, referred to Mr Leonard having left Gavins “under a cloud approximately four months ago”. We observe in passing that Detective Clubley’s affidavit was deficient in this respect as he did not set out the basis for his belief that Mr Leonard had left “under a cloud”, contrary to very well established appellate authority.[4] As detailed above, Detective Clubley’s assertion does not square with the evidence Mr Gavin gave: see above at [21]. The prosecutor did not advance the “under a cloud” suggestion in her final address.
[40] Detective Clubley expanded on this “motive” theme in another part of his affidavit. He said:

[Mr Leonard] was sent a “Please Explain” letter approximately three weeks ago by the owner of the business concerning some of his dealing while employed there. The owner of the business has not had a response from him.

[41] This hypothesis as to why Mr Leonard would have wanted to burn down Gavins’ premises was picked up by the Crown and formed a major plank of the prosecutor’s final address. The Crown theory was that Mr Gavin’s letter so incensed Mr Leonard that he decided to get revenge by burning down Gavins’ factory and showroom.
[42] We begin our discussion on this topic by setting out the terms of what Detective Clubley called the “Please Explain” letter, which was dated 30 October 2006. The letter read:

Dear Vincent,

Waipu Golf Club

As you are aware this Company supplied, at your direction, units to the above which I believe are for the kitchen.

From my research it appears that the cabinets were manufactured and delivered while I was overseas earlier in the year and the tops were made on the last day of your employment with us.

Dick Scotland from the Club now advises that the invoice will not be paid as he was advised by you that they would be free of charge.

I do not believe this was arranged or agreed to by myself and request you advise as to what my next course of action should be in regard to this amount. Copy invoices attached.

Thank you in anticipation.

[43] Mr Gavin enclosed an invoice, dated 31 August 2006, in the sum of $4,360.50 (including GST). It referred to supply and delivery of “sinktop & unit” and “servery top & unit”, “as ordered by Vincent Leonard [and] as quoted”. Gavins’ job number was recorded: 3328. We shall call this invoice “the 31 August invoice”.
[44] It appears that the first two paragraphs of Mr Gavin’s letter are correct. But the third paragraph was not. Mr Gavin said in evidence that he had not himself talked to Mr Scotland, who was at the time the board chairman of the Waipu Golf Club. The information contained in that paragraph was relayed to him by some unnamed person; either that person misunderstood what Mr Scotland had told him or her or Mr Gavin got the wrong end of the stick. The fact of the matter was that the club had paid the invoice in full immediately upon receipt. Mr Scotland knew that had happened as the board had approved the payment. Further, as we shall explain in more detail below, neither Mr Scotland nor the club ever asserted they had been offered the kitchen units free, only the kitchen bench tops.
[45] Before we go on to describe how the Crown made use of Mr Gavin’s letter, we need to make the following important point. The suggestion that the 30 October letter could have been the catalyst for Mr Leonard’s decision to burn down Gavins’ premises is inconsistent with a central prop of the Crown’s case. As we have said, it was common ground at trial that Mr Leonard gave Mr Gavin his factory key on the day he left. As we have also said, the Crown thesis is that, notwithstanding that, he must have secretly kept another factory key or a showroom key. Such an act, if it occurred, would suggest Mr Leonard had nefarious intent before his departure. This letter could not be the progenitor of such nefarious intent, as it did not come into existence until some months later. The Crown can offer no explanation as to why Mr Leonard should have formed a nefarious intent prior to leaving Gavins’ employ.
[46] Putting that difficulty to one side, we turn to how the prosecutor used Mr Gavin’s letter. First, she considered the letter on the basis that the jury accepted the defence contentions as to what led to the letter. Then she considered the letter on the basis that the jury accepted the Crown contention as to what had led to the letter. Either way, she put to the jury, the letter could well have infuriated Mr Leonard and caused him to decide to burn down Gavins’ factory and showroom.
[47] Let us explore what this background evidence was. We acknowledge immediately that the evidence concerning what happened relating to the Waipu Golf Club contract is very confused and incomplete. But the evidence seems to establish something along the following lines.
[48] Mr Leonard was a member of the Waipu Golf Club. In 2006, the club undertook an expansion and major renovations of its clubhouse. At some point in 2006, Mr Leonard arranged for two kitchen cabinets to be supplied by Gavins as part of the kitchen remodelling. It is clear from Mr Gavin’s letter and from the evidence of Aaron Wendt-Smith, who was at that time employed by Gavins in commercial sales, that these cabinets (or units) were delivered to the clubhouse before Mr Leonard left Gavins’ employ. It also seems that it was always envisaged the club would pay for these units. First, the 31 August invoice refers to the price having been “quoted”. Secondly, the invoice had a job number, so clearly had been entered in the Gavins’ system. Thirdly, no one from the club has ever asserted the cabinets were offered free or at a discount.
[49] It seems that Mr Leonard was also keen that Gavins should get the job of supplying fittings for the new parts of the clubhouse – the new bar area and the new changing rooms and bathrooms. It seems that Mr Leonard offered a deal to the club that, if Gavins got the contract for these fittings, Gavins would supply the kitchen bench tops either free or at a discount. Mr Scotland’s evidence is somewhat unclear on this point. At one part of his evidence, he talked about “a discount”; at other times he talked about the kitchen bench tops being “free”. One way of reconciling Mr Scotland’s uncertain evidence is this. It seems that the original “quote” referred to in the 31 August invoice included both kitchen units and their tops. By this time, the units had been supplied, but not the bench tops. They were not made until the day on which Mr Leonard left Gavins’ employ (10 August). It may well be that Mr Leonard offered to supply them free provided Gavins got the new big contract. In that way, depending on how one looked at it, the kitchen bench tops were to be “free”; there was also to be “a discount” on the original quote for kitchen units and tops.
[50] It was the defence case that, before offering this deal, Mr Leonard discussed it with Mr Gavin over a drink at the pub and got his approval. Mr Gavin did not recall such a discussion. In any event, Mr Leonard, shortly before he left Gavins, took Mr Wendt-Smith out to the club and introduced him to Mr Scotland. Mr Wendt-Smith measured up for fittings for the bar area and the new changing rooms and bathrooms, prepared some sketches, and prepared a quote. The club accepted that quote. We shall call the resulting contract “the changing room contract” to distinguish it from the earlier contract relating to the kitchen units and bench tops. We shall call the fittings to be supplied under the changing room contract “the changing room fittings”.
[51] Mr Wendt-Smith made several trips out to the club after Mr Leonard had left Gavins’ employ. He was, of course, interested in the installation of the changing room fittings. During the course of one of those visits, he noticed the kitchen bench tops which someone at Gavins had delivered or caused to be delivered. Those bench tops were not part of the changing room contract. He asked Mr Scotland about them and was told they had been supplied free as part of the deal. That was not something Mr Wendt-Smith knew anything about. He reported back to Mr Gavin.
[52] On 31 August, Gavins sent out the 31 August invoice, claiming $4,360.50 “as quoted” for “sink top & unit” and “servery top & unit”. Presumably the invoice was not sent until then because, until the kitchen bench tops were supplied, job number 3328 was not complete. The club’s board approved the bill for payment and it was paid immediately. The board was apparently surprised that the quote had not been adjusted, but, according to Mr Scotland, “it was [just] something which we accepted”. He went on:

It was a surprise but also, remember at that time Mr Leonard wasn’t working for Pat Gavin and we just, we didn’t think it was worth the trouble to try to involve him again when he was not working [there].

[53] At this time, Gavins was putting in a new accounting system, according to Mr Gavin. The club’s payment got lost in the system. When Mr Gavin was going through unpaid accounts at the end of October, the 31 August invoice was still showing in his ledger as unpaid. He obviously assumed, based on what Mr Wendt-Smith had told him, that the club had not paid the invoice because it claimed Mr Leonard had offered to supply these units and tops free. In that, he was mistaken.
[54] As we have said, the prosecutor put this matter to the jury on alternative bases. She first postulated that Mr Leonard had not been guilty of any wrongdoing with respect to the cabinets and the tops referred to in the letter. She postulated that the defence case concerning the units was correct, namely that Mr Leonard and Mr Gavin had an understanding that, if Waipu Golf Club contracted with Gavins for the supply of the changing room fittings, some things would be provided free as part of the deal. The prosecutor said to the jury:

Then four months or thereabouts after he left work, he gets a letter with a bill attached for over $4,000. Would that make him angry in those circumstances? It’s like, wait a minute, you [Mr Gavin] approved it.

[55] As for that submission, the first point to note is that Mr Gavin had not demanded that Mr Leonard pay the bill. Secondly, Mr Leonard, if annoyed at all on receiving this letter, would have been as cross with the club as with Mr Gavin. He was being told that Mr Scotland was asserting he (Mr Leonard) had offered to supply free not only the kitchen bench tops (which he had) but also the cabinets (which he had not). Mr Leonard was not to know that Mr Gavin was misstating the club’s response to the invoice. Clearly, on Mr Leonard’s case, which is fully supported by Mr Scotland’s evidence, there should have been a reduction in the invoice but not its withdrawal. That is presumably why, when he was asked about this in his video interview, he said he thought the invoice was “excessively high” and why he had asked for a breakdown. He did not assert the club was not obliged to meet part of the 31 August invoice. He told Detective Clubley that he had concluded there was “a misunderstanding”. There was, both on Mr Gavin’s part and on Mr Scotland’s, if he had been correctly reported as to the club’s stance. Mr Leonard’s account, whether right or wrong, at least has the advantage of consistency.
[56] The prosecutor’s suggestion may well have been permissible as a rhetorical flourish, but the tone of this letter, in the circumstances postulated, would have been unlikely to provoke the extreme response the Crown was suggesting. Of course, all this was a matter for the jury, but there was no evidence concerning Mr Leonard’s background which would suggest such a response was likely. As well, the prosecutor’s submission rather compressed and distorted the defence case which the prosecutor was, at this stage of her address, purporting to accept for the sake of argument.
[57] The prosecutor then put an alternative hypothesis to the jury. This was that Mr Leonard had given away “free stuff to his mates at the Waipu Golf Club and he got caught out”. We accept that, if Mr Leonard had been guilty of wrongdoing with respect to these cabinets or bench tops while in Gavins’ employ, then arguably his being found out could have given rise to annoyance on his part. Even so, burning down Gavins’ premises would appear to be at the extreme end of possible reactions. So, had Mr Vincent done wrong, with the consequence that Mr Gavin’s letter pricked a guilty conscience?
[58] The problem with this hypothesis is that, for the reasons we have given, the evidence underlying the assertion is just not there. What “free stuff” was the prosecutor referring to? If it was all the items referred to in the 31 August invoice, why was Mr Gavin able to refer to “a quote” when sending out the invoice? If supply of the kitchen units and bench tops was employee theft, why did Mr Leonard risk taking Mr Wendt-Smith to the clubroom where the kitchen units were sitting for anyone to see? Why were the bench tops made on 10 August and then dispatched to the club by Gavins after Mr Leonard had left?
[59] On any view of the facts, the Crown’s evidence as to motive was weak.

(e) The surveillance camera evidence

[60] Gavins was situated at 34 Porowini Avenue. The premises could also be entered through the back, there being a vehicular access running between Morningside Road and Kaka Street. About 12 properties were able to be accessed from that access way. Mounted on the back of the building at 24 Porowini Avenue was a surveillance camera. It focused on a car lot at the back of the building. Because this car lot gave onto the access way, the surveillance camera could pick up things happening on the access way. In addition, the camera was able to pick up for a short distance, vehicles passing along Morningside Road.
[61] Police very quickly investigated this surveillance camera in case the arsonist had approached Gavins from the access way rather than from Porowini Avenue. At 8.52 am on the morning of the fire, the camera picked up a man walking along the access way behind the car lot towards Kaka Street. The same man is captured walking in the other direction at 9.25 am. (There was some dispute at trial as to whether the times on the camera had been checked for accuracy and had been adjusted for daylight saving, but for present purposes we shall assume the times were accurate.) Unfortunately the images of the man (who was called at trial Man X) were of very indifferent quality. The Crown expert, Mr McCourt, described the imagery as “of a poor to fair quality”. He went on:

Interpretability is restricted due to the range of the subject from the camera. In addition, there is some distortion on the imagery due to movement. Also, the shirt and shorts of Man X are partially obscured by a chain link gate.

[62] All that could be discerned was that Man X was wearing a dark coloured cap, sunglasses, a dark tone (probably navy blue) shirt with horizontal stripes, a dark jacket, and predominantly dark tone (probably navy blue) shorts. Mr McCourt confirmed it was impossible to see Man X’s face. Further, it was impossible to work out his height other than to say, to use the prosecutor’s words, he was “not really really tall, [nor] really really short”.
[63] Notwithstanding the extreme limitations of that imagery, Detective Clubley said in his affidavit in support of the search warrant applications:

The surveillance cameras have captured a person fitting the description of Vincent Leonard walking down the alleyway towards Pat Gavins at 8.54 am on 12 November 2006. The same person was seen walking back through the alleyway away from Pat Gavin’s at 9.25 am.

[64] We shall discuss that affidavit further below. Suffice to say at this stage that search warrants were issued authorising the police to search both Mr Leonard’s home and his workplace. As a result of the search of his home, police found and seized a cap, a shirt, and a pair of shorts, among other things. The cap, shirt and shorts were photographed. Mr McCourt then gave expert evidence with respect to the similarities between the items seized from Mr Leonard’s home and what Man X appeared to be wearing.
[65] Prior to trial, the defence challenged the legality and reasonableness of the search and challenged the admissibility of the items discovered. Judge Harvey heard this application. In his decision, he noted the Crown submission that the admission of this evidence concerning the clothing found and seized was “crucial” to the Crown case, as it was the only evidence “positively linking the accused to the arson”.[5] Judge Harvey accepted that submission. He said at [72]:

I am of the view that this evidence is crucial to the Crown case. Whether or not it will be accepted by a jury is a completely different inquiry but I am satisfied that without this evidence the Crown case would be in very serious difficulty.

[66] We agree with the Judge’s assessment. The other strands of evidence, which we have already discussed, could not possibly get the Crown home. Without the clothing evidence the Crown did not have a case. Judge Harvey ruled the evidence admissible. As a consequence, the clothing was produced as exhibits and Mr McCourt gave expert evidence based on photographs of it.
[67] Before dealing with this evidence, we want to express our disquiet at the statement made by Detective Clubley in his affidavit, as set out at [63] above. It was palpably false for Detective Clubley to say that cameras had “captured a person fitting the description of Vincent Leonard”. Man X could have been virtually any man on the state of Detective Clubley’s knowledge at the date he swore the affidavit. It was only after the search warrants were issued and clothing seized from Mr Leonard’s house that some comparisons were able to be made by Mr McCourt between clothing appearing in the surveillance camera imagery and clothing located at Mr Leonard’s home. At no point did Mr McCourt attempt facial imaging, something in which he is expert, because it was simply impossible. As he explained, “Man X was wearing sunglasses and a hat which ... precluded detailed analysis of the offender”, quite apart from the poor quality of the imagery.
[68] As we have said, Mr McKean challenged the legality and the reasonableness of the searches following the issue of the search warrants. At the time he made that challenge, he may not have received Mr McCourt’s report. The challenge was on other grounds, namely that the search warrant applications were defective in failing to explain how the two properties to be searched were connected to Mr Leonard, that the search of Mr Leonard’s home was conducted unreasonably, and that Mr Leonard was prevented from consulting and instructing a lawyer immediately after his arrest. Judge Harvey upheld the first ground of complaint but not the others. As a consequence, he found the searches were illegal and unreasonable in terms of the New Zealand Bill of Rights Act 1990, but nonetheless ruled the evidence from the searches admissible. This Court on appeal declined to interfere with the Judge’s findings of fact and exercise of discretion.[6] The searches were unreasonable but the evidence was ruled admissible under s 30 of the Evidence Act 2006, which had only recently come into force.
[69] The misleading nature of the affidavit as to the identification of Mr Leonard was never part of Mr McKean’s pre-trial challenge. We are not sure why, because it was a much stronger ground for challenge than the defects in the affidavit he did pursue. It was an important part of Judge Harvey’s reasoning in deciding to admit the evidence notwithstanding the unreasonableness of the search that this was not a case where the police had “misstated evidence” when applying for the search warrant.[7] This Court on appeal appears to have been acting on a similar misapprehension.[8] Indeed, this Court appears to have thought that the Crown had “a witness [who] had seen a man at the location of the fire wearing clothes very similar to those possessed by Mr Leonard and found as a result of a search”.[9]
[70] Mr McKean did not renew his challenge to the admissibility of the evidence at trial. Perhaps he thought this Court’s ruling as to admissibility prevented further challenge, even on a different ground. Perhaps he thought a better trial tactic was to keep his powder dry: let the evidence in and then expose its weakness in his cross-examination of Mr McCourt. We think it highly likely that, had a renewed challenge been brought on the basis that Detective Clubley’s affidavit was not only deficient in the ways this Court had previously acknowledged but also thoroughly misleading as to Mr Leonard’s identification, the warrants would have been declared invalid, the searches unreasonable, and the evidence located as a result of them inadmissible. Including misleading material in a search warrant application has long been considered an aggravating factor when assessing what the remedy should be for an unreasonable search.[10] Had the results of the search at the Leonards’ home been declared inadmissible, the Crown case would have been so weak that a discharge under s 347 of the Crimes Act would have been almost inevitable.
[71] But Mr McKean did not make that challenge. Nor did Mr Bailey make it. So we must proceed on the basis that evidence from the searches was admissible.
[72] Mr McCourt’s approach was to compare his surveillance camera imagery with photographs taken of a cap, a blue shirt with white stripes, and some dark shorts seized from Mr Leonard’s home. He first attempted to identify differences between them which would positively enable him to say that, for instance, the shorts in the surveillance camera imagery were not the same as the shorts seized from Mr Leonard’s home. He could not find differences, but acknowledged that the quality of the surveillance camera imagery was so poor that differences might not be discernible. He then looked for similarities. He ultimately drew the following conclusions:
[73] Mr McCourt used a six level support table, where level one equated to “lends no support” and level six equated to “lends powerful support”. These findings were at levels two, three, and four.
[74] It is important to recognise the limitations of Mr McCourt’s evidence, limitations which he, very fairly, acknowledged. He was not saying, for instance, that the imagery evidence lent moderate support to the contention that Man X’s cap and the cap recovered from Mr Leonard’s home were the same. The expert evidence went no further than recognising that Man X’s cap could be “of the same type and style” as Mr Leonard’s. This in itself would, however, have given the jury very little assistance in determining what they had to decide, namely what were the chances of Man X being Mr Leonard. That is because the Crown led no evidence as to how common caps, shirts and shorts of this type and style were in the Northland region. That issue was, of course, outside Mr McCourt’s brief and expertise. If this evidence was to be of assistance to the Crown’s case, it was vital the Crown lead evidence as to how commonplace garments of this type and style were. For example, if 5,000 caps of the type and style of Mr Leonard’s had been sold in Northland over the past five years, then Mr McCourt’s conclusion about the similarities of the caps would be meaningless. The cap wearer could be any one of thousands.
[75] In the absence of such evidence, it would have been quite wrong for the jury to speculate on how common these garments were. Nor will we speculate, except to say that dark-coloured caps, dark-toned shirts with horizontal stripes and dark-toned shorts are by no means rare. What is also significant is that the police did not locate the prominent jacket which Man X was wearing.
[76] Mr McCourt undertook a similar exercise with respect to a utility vehicle captured on the surveillance camera shortly before Man X was seen walking down the access way. We shall not go into detail other than to observe that Mr McCourt described the imagery of Vehicle A (as the utility going along Morningside Road was called at trial) as being “of a poor quality”. He added:

Interpretability is restricted due to the range of the subject from the camera. In addition, there is some distortion on the imagery due to movement and reflections.

[77] Once again, he sought to look first for differences between Vehicle A and a photograph he was given of Mr Leonard’s utility, which was a Ford Courier. He then looked for similarities. His ultimate conclusion was that “the imagery evidence lends support to the contention that the Ford Courier [used by Mr Leonard] and Vehicle A are of the same type and style”. Again, however, and this is no criticism at all of Mr McCourt, his evidence was of comparatively little use to the jury in determining whether Vehicle A was or might have been Mr Leonard’s utility. These are just some of the limitations of the evidence.
[78] First, there is no evidence that Vehicle A stopped. It might be a complete red herring.
[79] Secondly, there is no evidence as to the other vehicles that passed along Morningside Road at this time. By the time this exercise was done, the police were committed to Mr Leonard as the arsonist. No attempt was made to see whether any other insiders’ vehicles had been captured about this time on the surveillance cameras.
[80] Thirdly, if the vehicle was Mr Leonard’s, one might have expected him to have been travelling in the opposite direction along Morningside Road, given that he would have come from Ruakaka. The police explanation for the vehicle travelling in the wrong direction, enunciated by the prosecutor in her final address, was that he must first have travelled down Porowini Avenue to check no one was parked out the front of Gavins and then have done a circuit down Kaka Street and back along Morningside Road. That is, of course, possible, but is no more than speculation. There is no evidence other than the surveillance camera imagery as to where Vehicle A travelled that morning. Nor is there any evidence (apart from the possible relevance of the surveillance camera imagery) of Mr Leonard’s vehicle ever leaving his property that morning until well after the arson had occurred.
[81] Fourthly, the surveillance camera picked up only the right side of Vehicle A and part of its front. Any differences between its left side and Mr Leonard’s utility’s left side could not be detected.
[82] Fifthly, there is no evidence about how common Ford Couriers are or, for that matter, about how similar they are to other utilities.
[83] Mr McCourt’s evidence did not in truth advance the Crown case very far at all. The prosecutor fairly said with respect to the visual imagery of Vehicle A:

All the Crown have offered you that evidence for is to say, look, an expert couldn’t exclude it.

[84] That was true but then she went on to say a little later in her final address:

It’s all we’ve got, you know. It was poor footage. But consistent, another horrible coincidence, with the work vehicle the accused had from SMI Group at that time. I think the expert gave it a four out of six in the level of certainty or support table.

[85] Unfortunately, that was misleading. It suggested Mr McCourt had said that it was “a four out of six” that Vehicle A was “the work vehicle the accused had from SMI Group at that time”. Mr McCourt had, of course, said nothing of the kind.
[86] A similar elision occurred when the prosecutor was addressing about the clothes. She said:

I’m going to repeat the same thing I said about the car. I’m not saying that the shirt, short and tops, or whatever, is the accused’s. Otherwise it would be pretty much a slam-dunk for the Crown. What I am saying is again, an expert could not exclude it from being the same shirt, cap and shorts. Three out of six for the cap, four out of six for the shirt, two out of six for the shorts – they’re a bit dodgier on the shorts, if you like.

[87] Again, that gave the jury the impression that Mr McCourt’s “three out of six for the cap” meant “three out of six” that the cap on Man X’s head was “the same ... cap” as found at Mr Leonard’s home. Again, that was not the evidence.
[88] We are sure these errors on the prosecutor’s part were unintentional, but unfortunately the Judge did not correct them.
[89] In short, we do not consider Mr McCourt’s evidence, which he had carefully prepared, advanced the Crown case very far. In fact, we see it as helpful to the defence. Mr McCourt had shown how difficult it was to conclude that Man X’s clothes were Mr Leonard’s or Vehicle A Mr Leonard’s Ford Courier. The evidence should have been a strong caution to the jury against illegitimate speculation. In particular, the evidence demonstrated how dangerous it would be for the jury to reason along the lines of, “well, the clothes look similar to me”.

(f) The accelerant the arsonist used

[90] Mr Chisnall and Mr Bailey were ultimately agreed that the arsonist appeared to have used as the accelerant a mixture containing toluene and mineral turpentine. (We shall call this “a toluene mixture”). A significant quantity would have been required – about four litres, it was estimated. Chemical records were so badly kept at Gavins that no one knew whether a chemical containing toluene and turpentine was stored there.
[91] The Crown theory was that either Mr Leonard had entered the premises and found the toluene mixture or he had carried it with him. Both theories have some difficulties. If no one at Gavins could be sure a toluene mixture was there, how could Mr Leonard, who had left Gavins more than three months before, be sure he would find an accelerant? Of course, he might have run a risk and have decided he was bound to find something that could be used as an accelerant.
[92] The difficulty with the alternative thesis is that Man X does not appear to be carrying anything. But, again we accept, as Mr Chisnall submitted, that the surveillance camera imagery of Man X is of such poor quality that he could be carrying something – even a four litre container – without it necessarily being detectable in the image.
[93] If the arsonist were a current insider, there is no problem. He or she could easily have checked in the days immediately before the arson to see what accelerants (if any) were stored. If none were, he or she could easily have brought in the toluene mixture prior to the arson, hiding it somewhere to await the arson attempt.

Conclusion

[94] We have now examined the principal strands of the Crown case. We remind ourselves of the limits of our review function under s 385(1)(a) of the Crimes Act. We also remind ourselves of the nature of a circumstantial case, where many strands of evidence may carry little weight, but, taken together, they form a body of evidence of such strength that one can be sure of guilt. In this case, however, the strands of evidence were not sufficiently strong. We are satisfied the verdicts were unreasonable. They were unreasonable because, having regard to all the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that Mr Leonard was the arsonist.
[95] We want to be absolutely clear about what we are deciding and what we are not deciding. Obviously, it is possible Mr Leonard was the arsonist. This is not a case where, on the evidence at trial, he can be positively excluded. It may be some would reasonably conclude he probably did it. That is not a question for us. That may be a question for someone else in the event that Mr Leonard seeks compensation for the period he has spent in prison. On that topic, we express no view whatever. All we are holding is that, on the evidence presented at this trial, the jury could not reasonably have been satisfied beyond reasonable doubt that Mr Leonard was the arsonist. As a consequence, we must allow Mr Leonard’s appeal.
[96] Finally, we make a comment on the summing-up. In our respectful view, it would have been much more helpful for the jury had the Judge done two things differently.
[97] First, the Judge followed the still common practice of simply summarising the prosecutor’s final address and then defence counsel’s final address. While that practice at least ensures both sides are put (or, more accurately, reput), it is often not particularly helpful to a jury. Counsel’s addresses often pass like ships in the night. Counsel frequently paint pictures – indicating guilt or innocence – at fairly high levels of generality. Inconvenient evidence is sidestepped. Circumstantial cases, however, frequently require detailed analysis, which only the Judge can provide for the jury. It would have been more helpful for the jury if the Judge had taken the five main strands of the Crown case and set out the evidence in respect of each strand. The jury needed the Judge’s assistance in marshalling the evidence so that the strength of each strand of the Crown case could be more accurately analysed.[11]
[98] Secondly, the Judge should have given a much more focused direction on the limitations of Mr McCourt’s evidence. All the Judge gave was the standard direction concerning expert evidence. Here, however, there was a real risk that the jury would forget or misunderstand the limitations which Mr McCourt had placed on his own evidence. The need for careful direction became even more acute after the prosecutor, no doubt unintentionally, herself overstated what Mr McCourt’s evidence established, if accepted.
[99] This was not a case involving “visual identification evidence” where a witness asserts that he or she “saw [the] defendant ... present at or near a place where ... an offence was done at, or about, the time the act was done”.[12] The dangers of such evidence are well known and necessitate a judicial warning of the kind described in s 126 of the Evidence Act. Mr McCourt’s evidence was, in fact, from the Crown’s perspective, much weaker than “visual identification evidence”; he did not begin to assert that Man X was Mr Leonard. He carefully delineated his task; he carefully stated his conclusions and the limitations on them. It was vital the Judge brought home to the jury the limits of Mr McCourt’s evidence, if the jury accepted it.
[100] Had the Judge done this, we think it highly likely the jury would have concluded they could not be sure of Mr Leonard’s guilt.

Result

[101] For the reasons given, we allow the appeal. All the verdicts are set aside and Mr Leonard’s convictions are quashed. Given the ground on which the appeal is allowed, it is, of course, not appropriate that there be a retrial.

Solicitors:
Crown Law Office, Wellington, for Respondent

[1] We are not completely sure of the reason, but believe a problem arose through a juror or jurors knowing a key witness.
[2] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

[3] At [13], where the Supreme Court endorsed six aspects of the Court of Appeal’s decision in R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

[4] R v Sanders [1994] 3 NZLR 450 (CA) at 460; R v Poelman (2004) 21 CRNZ 69 (CA) at [27]; R v Baptista (2005) 21 CRNZ 479 (CA) at [9]. And see now also R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [215].
[5] R v Leonard DC Whangarei CRI-2006-088-4680, 7 August 2007 [Leonard DC] at [35] and [71].
[6] R v Leonard [2007] NZCA 452 [Leonard CA].
[7] Leonard DC at [65].
[8] Leonard CA at [64].
[9] At [76].

[10] Solicitor-General v Schroder (1996) 3 HRNZ 157 (CA); R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136 (CA) at [23]-[29]; Williams at [116]-[121].

[11] R v David CA130/02, 4 May 2005 at [129]; Fong v Attorney-General [2008] NZCA 425 at [63]; R v Guo [2009] NZCA 612 at [76]- [80].
[12] See the definition of “visual identification evidence” in s 4(1) of the Evidence Act.

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