Ngarino v R [2011] NZCA 263 (8 June 2011)

Last Updated: 22 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA551/2010 [2011] NZCA 263

BETWEEN CHRISTOPHER EDWARD NGARINO Appellant

AND THE QUEEN Respondent

Hearing: 10 May 2011

Court: Chambers, Venning and Courtney JJ

Counsel: L B Cordwell for Appellant R J Collins for Respondent

Judgment: 8 June 2011 at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Aggravated robbery of a store at Hikurangi

[1] On 29 June 2005, the Four Square store at Hikurangi in Northland was robbed by masked men armed with a shotgun and a machete. The robbers tied up the occupants and put them in a chiller. The robbers then escaped with takings of some $3,000.
[2] The Crown contended Christopher Ngarino, the appellant, was one of the robbers. His defence to a charge of aggravated robbery and related charges was that he was not involved. He was tried before Judge de Ridder and a jury in May last year. The jury found him guilty of aggravated robbery, of detaining each of the four occupants and of unlawful possession of a firearm. Mr Ngarino appeals against his convictions.

Issues on the appeal

[3] Mr Cordwell, who appeared for Mr Ngarino both at trial and before us, advanced two grounds of appeal.
[4] The first was that the Judge wrongly exercised his discretion to comment on the fact Mr Ngarino had chosen not to give evidence.
[5] The second was originally advanced in these terms: the Judge “erred in fact and law by refusing an application to abandon the trial after the jury had heard evidence during the course of the trial which meant they were required to speculate about the factual basis for one of the key issues raised by the Crown as pointing to the appellant’s guilt and hence a miscarriage of justice was occasioned”. When it became clear in oral argument that the argument was unsustainable in that form, Mr Cordwell revised the submission. He submitted the Judge had erred in failing to direct the jury “to put the tyre track evidence to one side”. Evidence of tyre tracks had been a key feature of the Crown’s circumstantial case against Mr Ngarino.
[6] We consider those grounds in order.

Did the Judge wrongly exercise his discretion to comment on Mr Ngarino's decision not to give evidence?

[7] Mr Cordwell submitted that the Judge exercised his discretion to comment on Mr Ngarino’s decision not to give evidence in an inappropriate way, with the consequence that a miscarriage of justice was caused.
[8] Before we set out what the Judge said and before we can evaluate Mr Cordwell’s submission, we need to describe in more detail the Crown case against Mr Ngarino. It was built on an alleged confession and on circumstantial evidence.
[9] A key plank was a confession Mr Ngarino had allegedly made to Justin Wallace, who at one stage was in prison with Mr Ngarino. According to Mr Wallace, Mr Ngarino had confessed to being involved in the robbery and gave details of it. Mr Wallace recounted those details in evidence. If this confession evidence was true, Mr Ngarino was guilty. But, of course, it came from a prisoner so was subject to the caution properly exercised with respect to alleged jailhouse confessions.
[10] The Crown’s circumstantial case had a number of strands. There were three main strands. The first was that a stolen Citroen Picasso car later found burnt out down a remote road had been in the car park of the Four Square supermarket at about the time of the robbery. The police worked this out by comparing the rare tyre tread of the burnt out car with a tyre impression found in mud at the car park. At trial the defence did not dispute this fact.
[11] The second strand was that Sergeant Stephen Fryer, following a report to the police, found the car “still smouldering” at about 8.30 pm on 7 July 2005, just over a week after the robbery. He concluded the car had been torched. He returned to Whangarei to arrange a tow truck. He was back on the scene about an hour later. The car was then picked up and taken to secure police storage. Some debris from the car was left at the site of the fire. On 14 July, molten car parts from the burnt out car were found at Mr Ngarino’s flat, which was located not far from Hikurangi. (At trial the defence did not dispute that the molten car parts did come from this burnt out car.) The Crown thesis was that Mr Ngarino must have picked up the parts from the debris sometime between 8 July and 14 July. Given the remote location of the car, this made it very likely, the Crown said, that Mr Ngarino had gone back to see how successful the torching had been and had picked up these parts from the debris. The Crown case was that Mr Ngarino must have been involved in torching the vehicle in an attempt to remove evidence which might have connected the car with the robbery the previous week.
[12] The third strand was that the tyre marks were found in a position where the getaway car would most probably have been parked at the back of the store.
[13] The defence was three-fold. First, Mr Wallace was a liar and Mr Ngarino had never made the alleged confession.
[14] Secondly, the Citroen was not necessarily the getaway car. The tyre marks could have been left before the robbery or in a 24 minute period between 11.41 pm and 12.05 pm (after the robbery) when it was said the police left the car park unattended and without a cordon.
[15] Thirdly, the fact that the molten parts were found at Mr Ngarino’s flat did not mean that Mr Ngarino had been involved in the robbery.
[16] On this last point, Mr Cordwell, when addressing the jury, accepted it was a logical inference that “someone removed” the molten parts from the debris sometime between 8 July and 14 July, when the parts were found at Mr Ngarino’s flat. He then went on:

But does it make sense if Mr Ngarino was involved in this robbery, involved in the burning out of this car, which are two quite different things, that if he wanted those parts, why didn’t he take them before the car was burnt? Why didn’t he remove them first? Doesn’t make sense that anybody would remove them anyway but if he wanted those parts and he was involved in the burning out of the car, why didn’t he remove them first? You may think that that doesn’t, doesn’t add up. Because you ask yourself, what does that box of metal parts, burnt out motor equipment, what does that show? Does it show that his man committed the robbery as the Crown say or does it show, at the very most, that he picked those car parts up between the 8th of July and when his house was searched? That’s as much as it can show, doesn’t it, because he’s got that box outside his unit for everybody to see. Members of the jury, you may think that does not show that he walked into the Hikurangi Four Square with a gun and robbed these poor people. Look at what the evidence shows, not what the Crown want it to mean.

[17] With that background, we now turn to the Judge’s summing-up. With respect to this issue, Mr Cordwell concentrated on two sentences in the summing-up. But those sentences need to be seen in context.
[18] Near the start of the summing-up, the Judge delivered the standard Wanhalla[1] direction as to onus and standard of proof. He said there was no requirement or expectation that the accused should either give evidence or call evidence. Later, at various places in the summing-up, the Judge repeated that the onus of proof was always on the Crown and the standard of proof was beyond reasonable doubt.
[19] Mr Ngarino had made some brief statements to the police. The Judge dealt with those statements in these terms:

[23] Before turning to the respective submissions from counsel with regard to Mr Wallace’s evidence I just want to say a couple of brief things regarding statements you heard from the accused Mr Ngarino. You have heard that he made some brief statements to the police. They are not of themselves sworn evidence, but they are still properly part of the material for you to consider. What you make of the truthfulness, accuracy and weight of those brief statements is for you to decide. In the same way that you may accept parts of what a witness has said in evidence and not accept other parts, you may simply also accept parts of what he said and not others. In the course of reference to those statements some reference has been made to the accused electing not to make a statement about this robbery. The fact that he chose to do so is not evidence against him. Indeed as you have noticed, the warning given to him by the police expressly advised him that he was entitled not to make a statement. It would be quite wrong to reason that because he declined to make a statement, that he must have something to hide or be guilty of the offences charged.

[20] The Judge, very fully and carefully, then set out the Crown case and the defence case. The Judge dealt with the question of the car parts found at Mr Ngarino’s flat. It is in the course of this discussion that Mr Cordwell submits the Judge erred. We set out what the Judge said, and have italicised the two sentences Mr Cordwell submits were in error:

[56] Just focussing in respect of the car parts, you’ve heard, as I have said, that the car parts from the burnt out car were found at Mr Ngarino’s house, and the Crown says those parts were picked up by him and taken back to his house as part of cleaning up the scene where the car was burnt. Mr Cordwell says that Mr Ngarino could simply have picked up those parts without having in any way being involved in the robbery.

[57] I want to repeat now what I said earlier on this morning, that there is no requirement or expectation at all that Mr Ngarino would give evidence or call evidence. He is not required to prove anything. He is not required to prove his innocence. The fact that he did not give evidence does not add to the case against him. The onus is on the Crown to prove his guilty beyond reasonable doubt. But in considering the issue of how the car parts came to be at Mr Ngarino’s house, you might think that Mr Ngarino is the one person who could tell you how they came to be there, but he has not given evidence. In assessing Mr Cordwell’s suggestion that Mr Ngarino may have simply picked those parts up later without having been involved in the robbery, you are entitled to take into account the absence of the sort of evidential foundation that could have been provided by Mr Ngarino as to how the car parts came to be found at his house. But I repeat, Mr Ngarino does not have to prove his innocence and the fact that he did not give evidence does not add to the case against him.

[21] We accept immediately that many trial judges might not have commented in the way Judge de Ridder saw fit to do. However, we are quite satisfied that, in this case, the Judge was entitled to comment and that his comments did not give rise to a miscarriage of justice.
[22] For a start, it was the case that Mr Cordwell’s submission that someone else might have brought the molten parts and left them at Mr Ngarino’s flat had no evidential foundation. There was no direct evidence to support that. Nor was there any evidence to support the drawing of such an inference.
[23] Secondly, the Judge’s comments must be seen in their context. The Judge had been careful throughout the summing-up to emphasise that there was no obligation on the accused to give evidence or to prove anything. Then, when the Judge decided that he would comment on the lack of an evidential foundation for a particular submission, the Judge again reiterated the fact that Mr Ngarino was not required to give evidence and was not required to prove anything. All the Judge was doing, therefore, was to suggest caution about acceptance of a submission made by counsel for which there was no evidential basis.
[24] This case is a long way from those relied on by Mr Cordwell. We consider the Judge did not wrongly exercise his discretion when he made the comments referred to at [57] of his summing-up.

Did the Judge err in failing to direct the jury “to put the tyre track evidence to one side”?

[25] Mr Cordwell’s submission under this head comes down to the following proposition. The tyre tracks found in mud at the Four Square car park could have been left either before, during or after the robbery. To draw an inference as to when the marks were made “would be pure speculation”. Accordingly, the Judge was bound to direct the jury “not to draw any inference at all and to put the tyre track evidence to one side”. Mr Cordwell submitted that the most that could be shown by this evidence is that “over a day or so” before the marks were found on 30 June 2005 “the Citroen Picasso left the tracks in the Four Square car park”.
[26] We reject this submission. A circumstantial case is, by its nature, made up of strands of evidence from which the Crown invites particular inferences to be drawn. The jury may consider that some strands carry little weight, others more. It is their cumulative weight which is important. The facts from which the Crown seeks to draw inferences do not have to be severally proved beyond reasonable doubt. That is clear from this Court’s judgment in Thomas v R[2] in 1972. The proposition was reiterated by this Court in 1985 in R v Puttick:[3]

Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.

[27] Puttick was in fact the case upon which Mr Cordwell relied in support of his submission. He referred to the following passage from it:[4]

It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step.

[28] That statement remains good law today. But Mr Cordwell has, with respect, misunderstood what this Court meant. This Court did not say that one applied that test to each strand of evidence going to make up the circumstantial case. Rather, the jury must consider all the facts it considers proved and then determine whether the inference the Crown seeks to have them draw from those facts can be safely drawn. Only if they are sure the inference can be drawn can they find that element of the charge satisfactorily proved.
[29] It would have been quite wrong for the Judge to direct the jury to ignore the evidence of the tyre marks. Of course that evidence on its own would not prove Mr Ngarino was one of the robbers. But the jury were entitled to take it into account, along with all the other evidence, when determining whether the Crown had proved (in part by confession, in part by circumstantial evidence) that Mr Ngarino was one of the robbers.
[30] This ground of appeal also fails. We therefore dismiss the appeal against conviction.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Wanhalla [2007] 2 NZLR 573 (CA) at [49].
[2] Thomas v R [1972] NZLR 34 (CA) at 37-39.
[3] R v Puttick (1985) 1 CRNZ 644 (CA) at 647.
[4] At 647.