Gordon v R [2011] NZCA 329 (19 July 2011)

Last Updated: 26 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/2011 [2011] NZCA 329

BETWEEN NICHOLAS JAMES GORDON Appellant

AND THE QUEEN Respondent

Hearing: 28 June 2011

Court: Wild, Rodney Hansen and MacKenzie JJ

Counsel: CP Brosnahan for Appellant ME Ball for Respondent

Judgment: 19 July 2011 at 12 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

2. The appeal against sentence is allowed. The sentence of five months home detention is quashed. In its place Mr Gordon is sentenced to the time he has already served on home detention.
   

REASONS OF THE COURT
(Given by Rodney Hansen J)

Introduction

[1] After trial in the District Court at Wanganui before Judge Clapham and a jury, Mr Gordon was convicted of a charge that, with intent to intimidate Phillippa May Gordon, he threatened to damage the dwelling house she occupied. He was acquitted on three associated counts of threatening to kill. On the charge of threatening to damage, he was sentenced to five months home detention.
[2] Mr Gordon appeals against conviction and sentence.

Factual background

[3] The complainant, Phillippa Gordon, is Mr Gordon’s daughter. In September 2009 there was a party to celebrate the fortieth birthday of Mr Gordon’s partner, Michelle Kahukura. The complainant and her partner, Jared Rudolph, did not attend. Other family members were annoyed by their absence. The following day there was a breakfast. While the breakfast was in progress, Ms Gordon texted Michelle Kahukura to find out where her sister was. The text was intercepted by her brother, Reece Gordon, who responded with an angry message complaining that she had not mentioned Ms Kahukura’s birthday. There followed a series of abusive texts to Ms Gordon’s cellphone from her brother, Reece, and another brother, Nicholas. The appellant became involved in the exchanges by making abusive phone calls to his daughter. In the course of one telephone call he said to the complainant, “I’m on my way to bat your house [up] now”.[1]
[4] The complainant left the house with her partner and children. When they returned later that day, they discovered a pane of glass in the door had been smashed.

Appeal against conviction

Background

[5] The conviction appeal is based on the trial Judge’s decision to admit photographs of the damage to the door. Mr Brosnahan submitted that, as Mr Gordon was not charged with damaging the house, evidence of the damage was inadmissible as irrelevant or unduly prejudicial.
[6] The photograph was not disclosed to the defence until the morning of the trial. The damage to the door had been recorded by the police as a separate event and a separate file opened which did not come to the notice of the officer with responsibility for overseeing the prosecution until just before the trial.
[7] Defence counsel (not Mr Brosnahan) objected to the admissibility of the photographs. The matter was argued in chambers before Judge Clapham immediately before the trial began because the jury panel was already seated in Court. There is no record of the hearing or of the Judge’s decision. However, we have received a memorandum from the Judge and affidavits from trial counsel which explain the background to and reasons for the ruling. Of his decision to admit the photographs, the Judge says:

[12] In respect of this photo it was relevant and admissible in my view. It was not unfairly or unduly prejudicial. It was independent evidence confirming the complainant’s evidence as to breaking. The accused had been fixed with the knowledge of the breaking at an early point of time and had denied it was him.

[13] It is inappropriate for me to comment further. The sentencing notes reflected my views of the matter.

[8] We infer that Judge Clapham’s reference to the sentencing notes is to the following passages:

[3] There is no fault attached to the prisoner in respect of the breaking of the window at the home but, no doubt, it is an indicator and was carried out by somebody who had knowledge of the background and it was intended to let the complainant, that is the sister or daughter, know that the threats were not empty words.

[4] In so far as sentencing is concerned no fault can be attributed to the prisoner for the breaking of the window as there is not evidence identifying him as the person responsible.

Grounds of appeal

[9] In support of the appeal, Mr Brosnahan submitted that the photographs should not have been admitted because they were irrelevant or unduly prejudicial. He also contended that the Judge failed to adequately counter the risk of prejudice by directing the jury as to how the evidence should be used.

Discussion

[10] Section 7(3) of the Evidence Act 2006 provides that:

Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

As Tipping J said in Wi v R,[2] s 7(3) does not set out “an exacting test”. Evidence is relevant if it has a tendency, if only a slight tendency, to prove something of consequence to the determination of the proceeding.[3]

[11] It was, of course, no part of the Crown case that Mr Gordon damaged the door. What the Crown was required to prove was that a deliberate threat was made to damage the house with the intention that the complainant would be intimidated. In a statement to the police, Mr Gordon denied uttering the offending words. He was supported by family members who were with him at the time. It was important, therefore, that the Crown adduce evidence which would support the complainant’s account and counter defence denials.
[12] Evidence adduced for that purpose included an account of Mr Gordon having been seen, soon after the threats were made, driving in the direction of the complainant’s house and of the fears she and her partner had for their safety which caused them to leave the house. They spoke of finding the damage after they returned.
[13] In our view, the evidence of damage to the door was admissible to support the complainant’s account of events and, consequently, to establish that the threats were made and were accompanied by the requisite state of mind. The relevance of evidence of damage for this purpose was apparently accepted by defence counsel at trial. There was no objection to evidence of damage being given. That included the admission of Mr Gordon’s oral statement to the police in which he denied knowledge of the damage. The basis for trial counsel’s objection was not to the relevance of the photographs but to their unfairly prejudicial effect arising from their eleventh hour disclosure and because they graphically depicted the damage to the door.
[14] In our view, the photographs – which show nothing more than a broken window pane in the door – added little to the oral evidence of damage and could not possibly have been unfairly prejudicial. We have, however, a residual concern about the Judge’s failure to direct the jury as to the way in which the evidence of damage could properly be used. He should have emphasised that it was no part of the Crown case that the damage was caused by Mr Gordon and that the evidence served simply to corroborate the complainant’s account of what happened.
[15] It appears, however, that the subject was canvassed in closing submissions. We do not have a transcript of what was said, but notes taken by Crown counsel at trial of the defence closing address show that defence counsel directly addressed the issue of damage to the door. He appears to have firmly reminded the jury not to speculate on who might have been responsible.
[16] In the circumstances, we see no risk that the admission of the photographs could have led to the wrongful conviction of Mr Gordon.

Appeal against sentence

[17] Following conviction Mr Gordon was remanded in custody pending sentence one month later. The Judge said in his sentencing remarks that was a mark of his concern for the impact of his behaviour on the family. In accepting the Crown’s submission that the appropriate penalty was one of imprisonment, he described what had happened as “a very bad incident”. He referred to Mr Gordon’s previous convictions although they are historical and there is no suggestion that they warranted an uplift in sentence. The Judge concluded that the minimum penalty that he could impose was five months home detention.
[18] It is perhaps not altogether surprising that counsel were unable to refer us to any authority which might provide some guidance as to the appropriate sentence in a case such as this. However, by reference to the purposes and principles of sentencing in the Sentencing Act 2002, we are left in no doubt that, coming on top of a remand of one month in custody, the sentence of five months home detention was excessive.
[19] It appears that Judge Clapham may have been influenced by the adverse view he had formed of Mr Gordon’s inflammatory and divisive role in the incident. He was justifiably of the view that he had abdicated his responsibilities as a father. But the criminal behaviour of which he was convicted was of a generalised threat to damage his daughter’s house. However disgraceful, it did not warrant the term of home detention imposed.
[20] We were told that Mr Gordon has completed five weeks of his sentence of home detention. Added to the one month he spent in custody, we consider that is sufficient punishment to serve the ends of justice.

Result

[21] The appeal against conviction is dismissed.
[22] The appeal against sentence is allowed. The sentence of five months home detention is quashed. In its place Mr Gordon is sentenced to the time he has already served on home detention.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] The transcript of evidence records “up” as “us”. That is clearly an error as earlier in her evidence the complainant referred to her father saying he was “on his way around to bat your house up ...”.
[2] Wi v R 2009 NZSC 121, [2010] 2 NZLR 11 at [8].
[3] Ibid, at [19].