Collier v R [2011] NZCA 482 (23 September 2011)

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Collier v R [2011] NZCA 482 (23 September 2011)

Last Updated: 29 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA848/2010 [2011] NZCA 482

BETWEEN HARLEY VANCE COLLIER Appellant

AND THE QUEEN Respondent

CA884/2010

AND BETWEEN TIAKI LANCE ERUETI PHILLIPS Appellant

AND THE QUEEN Respondent

Hearing: 11 August 2011

Court: Harrison, Rodney Hansen and Andrews JJ

Counsel: E R Fairbrother and G M Fairbrother for Mr Collier A J S Snell for Mr Phillips D R La Hood for Respondent

Judgment: 23 September 2011 at 12 pm

JUDGMENT OF THE COURT

A Mr Phillips’ appeal against conviction is dismissed.

B Mr Collier’s appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Harley Collier and Tiaki Phillips were each found guilty at a trial before a Judge and jury in the High Court on one charge of attempted murder. The trial judge, MacKenzie J, convicted both men and sentenced each to a term of eight years imprisonment cumulative on existing sentences.[1] He also sentenced Mr Collier to a minimum period of imprisonment of five years.
[2] Messrs Collier and Phillips appeal against their convictions. Mr Collier also appeals against the imposition of a minimum period of imprisonment.

Background

[3] Messrs Collier and Phillips were serving inmates at Hawkes Bay Regional Prison. Both were accommodated within unit 4A, a stand-alone unit housing 40 inmates. The victim, Ahmed Najim, was also a serving inmate at the same prison. On 27 October 2009 he was moved to unit 4A.
[4] About an hour after his arrival at unit 4A, Mr Najim was sitting on his bed when two other prisoners walked into his cell and jumped on him. He had seen one of the men earlier in the day in unit 4A. He noticed that he had facial tattoos. On inquiry, Mr Najim learned that he was known as “Harley Rogue”. He knew of the other man as “Visions”.
[5] After entering Mr Najim’s cell, Harley Rogue placed Mr Najim into a headlock and wrapped his legs around Mr Najim’s legs. Visions remarked: “Oh you’re Ahmed from Mayfair eh. Gary’s mate”. Mr Najim saw Visions grab something from his pants. Harley Rogue tightened his hold on Mr Najim, who passed out and fell to the floor. Then, when he came to, Mr Najim saw somebody standing on top of and slashing him. His neck was slashed severely in two strokes from each ear to the centre of his throat. His exterior jugular veins and arteries were severed. Mr Najim was left lying and bleeding on his cell floor. He managed to staunch the blood with a sweatshirt and call for help. He was taken by ambulance to hospital where he underwent emergency surgery.
[6] Identification of the two attackers was the key issue at trial. Mr Howard, a corrections officer who was the first person to assist Mr Najim, asked who had attacked him. Mr Najim initially responded that he did not want to be a “nark”. He refused to identify his attackers. Later, while medical staff were attending to him, and Mr Najim understood that he may die from his injuries, Mr Najim responded to Mr Howard’s urging by describing his two attackers. Mr Najim said that Harley Rogue, who had held him and who he had seen earlier in that day, had the letters “MMM” tattooed across his forehead and “Rogue” tattooed across his nose; Visions, who had slashed his throat, had a rogue patch on one side of his face (a bulldog and the words “Mongrel Mob Rogue”) and a swastika tattooed on his cheek. Mr Najim did not know their real names.
[7] Mr Howard produced the unit muster board for Mr Najim to view. The board showed the pictures of all 40 prisoners in unit 4A. Only four prisoners had facial tattoos. And only Messrs Phillips and Collier had tattoos matching Mr Najim’s description. Mr Najim was “100 per cent sure” that the photograph of Mr Phillips was who he knew to be Visions. He also pointed towards Mr Collier’s photograph, identifying him as Harley Rogue. But he was not “quite sure” in this particular identification. However, Mr Najim confirmed to Mr Howard that it was Mr Collier (or Harley Rogue) when shown a second muster board with the enlarged photos of three of the four inmates with facial tattoos, followed by individual photographs blown up to A4 size.
[8] Later that day prison staff found the razor blade weapon on the bed in Mr Najim’s cell. They also found a broken apart prison issue disposable razor with two blades missing in a milk container on a shelf in Mr Phillips’ cell. When broken apart, the razor had three blades. On the Crown case, the two blades used to make the weapon were taken from the broken razor found in Mr Phillips’ cell – the remaining third blade was left in the container. Also there were burn marks on a wooden shelf in the cell. The Crown says they were consistent with an attempt to melt the blades together.
[9] At a formal identification procedure on 12 November, Mr Najim again identified Messrs Phillips and Collier from a photographic montage.
[10] Mr Najim was the principal Crown witness at trial. Messrs Collier and Phillips gave evidence in their defences. Mr Collier called a witness, another inmate, Errol Damklof. His purpose was to provide an alibi.
[11] Messrs Collier and Phillips appeal on a number of grounds. Some are specific and others are individual. Mr Snell for Mr Phillips raises three grounds which are adopted by Mr Fairbrother for Mr Collier. Mr Fairbrother raises four additional grounds.

Mr Phillips’ conviction appeal

(a) Lack of or late disclosure of relevant information

[12] First, Mr Snell submits that the Crown should have disclosed that at his trial for robbery, which led to his conviction and imprisonment at Hawkes Bay Prison, Mr Najim had given evidence against his co-accused. This evidence, he submits, was relevant to Mr Najim’s credibility; it would have explained Mr Najim’s initial reluctance to identify his attackers; it suggested prisoners other than the appellants had a more realistic motive; and it provided a reason for Mr Najim to identify people other than his actual assailants.
[13] At trial the Crown emphasised that it was not required to prove a motive for the attack. Nevertheless, to strengthen its case it raised an alleged link between Messrs Phillips and Najim. Under cross-examination Mr Phillips admitted he had heard that a Gary of Mayfair had had an affair with his ex-partner. That was consistent with the inquiry made by Harley Rogue immediately before the attack as to Mr Najim’s association with Gary. And it was enough for the prosecutor, Mr Collins, to suggest in his closing address that Mr Phillips had a retributive but misdirected motive to attack Mr Najim.
[14] The Criminal Disclosure Act 2008 requires the prosecutor to disclose to the defendant any “relevant information” recorded or in his or her control or possession.[2] We accept that the Crown’s disclosure of information about Mr Najim’s evidence against his co-accused may have allowed both Mr Phillips and Mr Collier to raise the possibility of an alternative motive. However, we agree with Mr La Hood that it was not “relevant information”. We are not satisfied that it would have tended to rebut or have a material bearing upon the Crown’s case against Mr Phillips. We can give our reasons shortly.
[15] On the issue of motive, Mr Snell does not suggest any link between Mr Najim’s co-accused and others at the prison in the robbery which led to Mr Najim’s imprisonment. Mr Najim was 18 years old. His co-accused was 15 years old and was not imprisoned. It is hardly plausible that the boy or his family would have arranged for retributive steps to be taken when he did not receive a custodial sentence. On credibility, the information would have little impact on the jury’s assessment of Mr Najim because it was common and unavoidable knowledge he was a serving prisoner. And Mr Snell does not say what Mr Najim would have to gain by identifying gang members instead of his actual attackers. There is nothing in this ground.

(b) Propensity evidence

[16] Second, Mr Snell submits that MacKenzie J erred in allowing an application by the Crown to lead propensity evidence. In examination-in-chief Mr Phillips said that he knew closed circuit television cameras were operating in unit 4A; and that accordingly he would have disguised himself if he had been the attacker. Mr Collins then applied for leave to admit evidence that Mr Phillips had not concealed his appearance when committing the aggravated robbery of a bank. The Judge allowed the Crown’s application for these reasons:[3]

[3] Evidence on that previous occasion would come within the definition of propensity evidence in s 40 [of the Evidence Act 2006] as being evidence tending to show his propensity to act in a particular way. I must weigh the probative value of that evidence against its unfairly prejudicial effect. One of the factors in that assessment is the extent of the similarity between the acts, omissions, events or circumstances which are the subject of the evidence and the present circumstances.

[4] Mr Snell objects to the evidence and submits that there are significant differences between those circumstances and the present. I must deal with the matter now in the course of cross-examination. I consider that there is a sufficient similarity based on the proposition put by Mr Collins to accept that it may have probative value on that basis. The question is what is its unfairly prejudicial effect. There is of course no doubt the admission of a previous conviction will have some prejudicial effect. It is however well known that the accused is a serving prisoner. That has been apparent so that the prejudicial effect of the introduction of the reason why he is serving has less of an unfairly prejudicial effect than would otherwise be the case and it is for that reason that I consider that the relevance of the issue does outweigh the unfairly prejudicial effect. That is the basis on which I have ruled.

[17] Following the Judge’s ruling, cross-examination continued with this exchange:

17. So you told us that you wouldn’t do this undisguised given you knew the surveillance cameras were there but you know there surveillance cameras in banks don’t you?

A Well obviously there would be yeah.

Q Obviously?

A Yeah.

17. When you did, when you robbed the National Bank in Hastings you didn’t disguise your face did you?
1. Yes I did.
17. No you didn’t. How did you disguise your face?
1. With a balaclava.
17. Mr Phillips you did not wear a balaclava?
1. Well the National Bank cameras would say otherwise if that’s what you’re saying.

...

[18] Mr Collins did not pursue his challenge further and the Crown did not seek leave to call rebuttal evidence. Mr La Hood advised us that Mr Collins was acting on information received from the officer-in-charge of the prosecution which later proved incorrect.
[19] Mr Snell submits that the proposed evidence of Mr Phillips’ appearance when committing an earlier crime was not of a propensity nature but that, if it was, it should have been excluded as there was a risk its unfairly prejudicial effect outweighed its probative value.[4] We need not decide whether the proposed evidence was of a propensity nature. That is because the Crown did not lead evidence that Mr Phillips had robbed the National Bank in Hastings without wearing a balaclava. In its absence, the prosecutor’s questions amounted at best to a series of propositions designed to attack Mr Phillips’ credibility. MacKenzie J properly directed the jury that Mr Collins’ questions were not evidence:

... First, I remind you, as I have already said, that you must not allow Mr Phillips’s involvement in any robbery, and that robbery, to prejudice you against him. The second point is that there is no evidence that he was not disguised in that robbery. Counsel’s questions are not evidence, as I have said. Mr Phillips said he wore a balaclava, and there is no evidence to contradict that. So I suggest to you that that is evidence that you may want to put to one side completely and not to take it into account.

[20] In recognition of this factor, Mr Snell’s argument reduced to a proposition that Mr Collins’ questions had an unfairly prejudicial effect in two related respects. One was by introducing before the jury the fact of Mr Phillips’ record of violent offending, which Mr Snell says was significant in a trial on a serious charge where the potential for prejudice against Mr Phillips existed because of his gang affiliation. The other is the special authority inherent in the prosecutor’s questions, undermining the credibility of Mr Phillips’ denials and his evidence generally.
[21] Mr Snell’s submission must be examined in context. The jury was aware that Mr Phillips was a serving prisoner. It would inevitably infer that he was a prison inmate because he was earlier sentenced upon conviction for a crime which was of sufficient severity to attract a term of imprisonment. It would also infer from the existence of his tattoos and his membership of the Mongrel Mob gang that Mr Phillips was not a stranger to the criminal environment.
[22] Without these questions, however, we accept that the jury would not have known the nature of Mr Phillips’ previous offending. We accept also that a degree of prejudice may have arisen from disclosure of Mr Phillips’ conviction for aggravated robbery of a bank as opposed to a less serious crime. However, we are equally satisfied that it was cured by MacKenzie J’s direction in summing up that:

The first is to reinforce what I said about the need to decide this case without prejudice. The evidence as a whole makes it clear that the accused are not persons of good character. They are both in prison. They are both patched members of the Mongrel Mob. You have heard evidence of why they are in prison. Mr Collins referred to that in cross-examination of Mr Phillips, and Mr Fairbrother referred to it in his examination-in-chief of Mr Collier. You should put that to one side. It is of no relevance to what you must decide. The accused are not guilty because they have done some bad things or are in prison, or live in a way that you might disapprove of. You must not decide either of them is guilty because on the basis of the evidence you must not decide that either of them is guilty because you think he is the type of person who might commit these offences. Your task is to assess whether the evidence proves the guilt of each accused to the required standard.

[23] It is not easy to understand why the Crown applied to mount a challenge to Mr Phillips’ credibility through the avenue of calling propensity evidence. Its value was at best marginal. It had the obvious potential to lead the trial down a diversionary and possibly prejudicial path. Nevertheless, we are satisfied that the Judge’s directions to the jury eliminated any risk of a miscarriage.

(c) Identification evidence

[24] Third, Mr Snell challenges the admissibility of Mr Najim’s evidence relating to the muster board and photographic montage. On an application by the Crown before trial under s 344A of the Crimes Act 1961 Mallon J had ruled that evidence admissible.[5] We shall deal with the challenges relating to the muster board and photographic montage separately.

(i) The muster board

[25] It was common ground between Mr Snell and Mr Collins that the muster board evidence was visual identification evidence under s 45 of the Evidence Act 2006.[6] That section materially provides:

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—

(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and

(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and

(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and

(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and

(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(g) that complies with any further requirements provided for in regulations made under section 201.

[26] Mr Snell conceded before Mallon J that there was good reason for the prison authorities not to follow the formal procedure of an identification parade – principally because of the risk that Mr Najim might not survive his injuries.[7] The onus of proof of inadmissibility then shifted to the defence. Mr Snell submits that Mallon J wrongly found that the defence failed to establish the unreliability of the muster board evidence on the balance of probabilities. Many of the factors on which Mr Snell relies as affecting the reliability of the evidence were expressly considered by Mallon J.[8] She took account of all the factors now emphasised by Mr Snell – that is, his view of his assailants was fleeting, he lapsed in and out of consciousness during the attack, the identification occurred at a distressing time while Mr Najim was in shock, and Mr Najim’s history of dishonesty offending.
[27] Mallon J considered that other factors which Mr Snell does not address pointed in favour of this evidence’s reliability.[9] Amongst them, as Mr La Hood emphasises, were Mr Najim’s initial reluctance to provide any information when he actually knew the identities of his attackers; the absence of evidence of any animosity towards or prior dealings with Mr Phillips; his immediate recollection of his attackers’ distinctive tattoos while receiving treatment for injuries which he thought could end his life; the small population of 40 inmates who could have been responsible for the attack; the occurrence of the attack in the middle of the day; and finally, and most importantly, Mr Najim’s sighting of the attackers at close proximity. We agree with Mr La Hood that these factors favour the reliability of Mr Najim’s evidence.
[28] Mr Snell does not identify a specific error in Mallon J’s reasoning and none is immediately apparent. We are satisfied that the Judge correctly turned her mind to the relevant considerations in determining that the identification evidence was sufficiently reliable. That assessment was made with the benefit of Mr Howard’s evidence about the circumstances surrounding the muster board identification.
[29] Mr Snell suggests that greater scrutiny is required where an unusual or irregular identification procedure is followed, relying on R v Tamihere.[10] However, since that decision the Evidence Act has struck a different balance, which was adhered to by Mallon J. We repeat that where there is good reason for departure from a formal procedure, as Mr Snell conceded before the Judge, the threshold is the balance of probabilities, with the onus on the defence to prove unreliability to that standard. The Judge was not satisfied that Mr Phillips had discharged that onus and we are not satisfied that she erred.

(ii) Photographic montage evidence

[30] Mr Snell submits that Mallon J erred in ruling in favour of admission of the photographic montage evidence. We note that once Mr Najim had identified his attackers by reference to the muster board and that identification evidence was ruled admissible, his repetition of the same exercise with the photo montage using the same photographs which he had earlier identified would have added little if anything to his muster board identification. But, as Mr La Hood submits, that does not render the photo montage evidence inadmissible.
[31] Section 45 also applies to the photo montage evidence because it too was visual identification evidence. Before Mallon J, Mr Snell conceded that the photo montage was a formal procedure.[11] He now seeks to argue that a delay of 15 days between the attack and identification, the lack of similarity in appearance of those in the montage and the muster board identification tainted the photo montage procedure and rendered it unreliable.
[32] Mallon J carefully reviewed the same submission on unreliability made by Mr Snell. She was not satisfied that the photo montage evidence was unreliable.[12] We are not satisfied that she erred.
[33] All three of Mr Phillips’ grounds of appeal against conviction must fail.

Mr Collier’s conviction appeal

(a) Reliability of identification evidence

[34] Mr Fairbrother for Mr Collier adopts Mr Snell’s submissions insofar as they are relevant to Mr Collier’s appeal and adds four grounds. First, Mr Fairbrother submits that MacKenzie J’s identification directions were inadequate. He accepts that the Judge complied with the express requirements of s 126 of the Evidence Act. He complains, however, that the Judge devoted a comparatively large part of his direction to the Crown case on identification, followed by a brief collective reference to the defence case.
[35] To be meaningful, Mr Fairbrother submits, the summing up should have specifically identified the weaknesses in Mr Najim’s identification evidence. That was because the identification process was beset by uncertainty: there was a quick glance in a fraught circumstance, the attacker was a stranger, Mr Najim expressed initial uncertainty to Mr Howard, he was shown an enlarged photograph, and the montage ran the risk of reinforcing an earlier mistake. Mr Fairbrother says the summing up should have included a direction that rejection of the alibi evidence did not strengthen Mr Najim’s identification of Mr Collier; that there was no corroborative evidence supporting that identification; and that acceptance of Mr Phillips’ identification did not automatically necessitate acceptance of Mr Collier’s identification.
[36] MacKenzie J’s summing up highlighted what the Crown suggested were the only real issues – namely, whether it was Mr Collier who applied the headlock to Mr Najim and whether it was Mr Phillips who cut his throat. The Judge followed by noting two important issues. One was the importance of deciding the offences free of prejudice (see at [22] above). The other was this:

The next warning that I must give you relates to the identification of the attackers. I am required to, and I do, warn you that there is a special need for caution before finding either of the accused guilty on the basis of visual identification evidence. The reason for this warning is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. If such a mistake is acted on, miscarriages of justice can, and have, occurred. Remember that a mistaken witness may be convincing. So you must carefully consider the evidence as to Mr Najim’s identification of his attackers. You must assess both its credibility, and its reliability. Having given it that careful consideration, it is for you to assess whether you accept it or not.

[37] The Judge then summarised the competing cases on identification. But first he said this:

... First, I deal with what they say about the reliability of Mr Najim’s identification. You must bear in mind the warning that I have just given you. The Crown says that if you do exercise caution, and consider the evidence carefully, you will find that you can rely upon his identification. ...

[38] The Judge followed with this reference to the defence case:

... The defence says that you cannot accept Mr Najim as a credible witness. It also says that his identification cannot be regarded by you as reliable. It says that Mr Najim saw his attackers only for a very brief period of time. ...

[39] At the conclusion of MacKenzie J’s summing up, both Mr Snell and Mr Fairbrother raised a number of issues with him. Counsel complained about the adequacy of the Judge’s identification directions. After hearing from Mr Collins, MacKenzie J decided that the primary question was whether he should accede to the defence submission about balance on the identification evidence. He proposed recalling the jury and amplifying his direction by repeating what he had said about the Crown case and adding further to the defence case. Both Messrs Snell and Fairbrother took instructions before advising that they did not pursue the request.
[40] On analysis, the defence complaint at trial, as it is on appeal, is not so much about the adequacy of the Judge’s warning on identification as it is about balance in summarising the respective cases. While it was economical, the Judge’s legal direction on identification satisfied the statutory criteria. Mr Fairbrother would be on firmer ground about imbalance if the Judge had gone no further than his initial summary of Mr Collier’s defence (see above at [38]). However, the Judge did go further when in the context of directing on the alibi evidence he encapsulated what appeared to be the real thrust of Mr Collier’s defence in these words:

Mr Fairbrother submits that Mr Collier cannot have been involved because he was with Mr Damklof by cell 2 when these events happened. You will need to assess Mr Damklof’s evidence and Mr Collier’s evidence, and take into account what Mr Collins and Mr Fairbrother have said about that. You will need to consider whether, if you accept Mr Damklof’s evidence, that that does mean that Mr Collier could not have been in Mr Najim’s cell when [these] events happened. If you consider that there is a reasonable possibility that Mr Collier was with Mr Damklof, at the exact time of the incident, that would raise a reasonable doubt, and you must acquit Mr Collier. One the other hand if you reject the alibi evidence, it does not follow that you must convict. You must decide, on the evidence you do accept, whether the Crown has provided its case beyond reasonable doubt.

[41] In our judgment, this passage answers Mr Fairbrother’s criticisms. It may have been preferable if MacKenzie J had repeated the essence of Mr Fairbrother’s criticisms about the particular factual circumstances which might cast doubt on Mr Najim’s identification. However, in the passage cited (see [36] above) the Judge related his identification warning specifically to the risk that Mr Najim may have been mistaken. The jury would have been well aware of the facts relevant to that warning. It had just heard Mr Fairbrother’s closing address. The issue had been well ventilated in evidence. And the Judge had emphasised that the Crown case stood or fell on the credibility or reliability of Mr Najim’s evidence.
[42] On balance, we are not satisfied that MacKenzie J’s identification directions were inadequate or that he failed to put the essence of Mr Collier’s defence to the jury. He had identified the fundamental facts in issue and the competing contentions. He was not bound, however, to strive for an artificial balance between the cases[13] given our satisfaction that, as Mr La Hood submits, the Crown’s case against both defendants was very strong, if not overwhelming, for these reasons:

• (a) Mr Najim had no animosity towards or prior dealing with either Mr Phillips or Mr Collier. He had never before spoken to them. He had no more reason to wrongfully accuse them than any other inmate in unit 4A.
• (b) Mr Najim was reluctant to identify his attackers at all. It was only when pressed by Mr Howard with the possibility of dying that Mr Najim revealed the description of the tattoos.
• (c) At a time when he believed he may be dying, Mr Najim was able to identify the identity of each attacker from muster board photographs which he later verified by way of a formal identification procedure.
• (d) The discovery of the broken razor in Mr Phillips’ cell coupled with the burn marks on the shelf were compelling evidence that he had created the improvised weapon in his cell.
• (e) The reference, immediately before the attack, to Mr Najim being “Gary’s mate” linked directly to Mr Phillips’ admission to his belief that his girlfriend had been unfaithful with a person named Gary Karangaroa, providing powerful circumstantial evidence.

[43] Mr Najim identified his attackers by unequivocal descriptions of physical characteristics. Each description was based upon a unique identifying factor. One was a word tattooed across a face. The other was a swastika tattooed on a cheek. Each defining tattoo was accompanied with other distinctive facial tattoos. It transpired that only four of the 40 inmates at unit 4A bore facial tattoos, and only Messrs Phillips and Collier bore the tattoos identified. The photograph of each man undeniably matches Mr Najim’s description.
[44] Mr Najim’s evidence was precise and compelling. There were only two possibilities for the defence. One was that Mr Najim was confused by a previous encounter; the other was that he was lying. In this respect, the Judge directed the jury properly and adequately about the process and importance of evaluating reliability and crediblity. The jury’s verdict reflects its acceptance of Mr Najim’s evidence as credible and reliable.

(b) The failure to distinguish different defences

[45] Secondly, Mr Fairbrother submits that MacKenzie J failed in his summing up to differentiate between the two separate defence cases. Mr Fairbrother emphasises that Mr Collier relied upon his alibi evidence to corroborate his own evidence and challenge the visual identification; that Mr Collier was unknown to Mr Najim until an hour before the attack, whereas Mr Phillips was already known to him; that Mr Najim was less certain about one of his initial identifications of Mr Collier; that the photographic evidence was a departure from the format envisaged by s 45 of the Evidence Act; and that, while Mr Najim’s visual identification of Mr Phillips may have been corroborated by the items found in and around his cell, there was no such linkage to Mr Collier.
[46] We can deal with two of Mr Fairbrother’s complaints in short order. As just noted, the Judge did direct the jury fully on the alibi evidence given by Mr Damklof for Mr Collier. He did not say anything about the absence of corroborative evidence of Mr Collier’s offending because that was self evident; it was never part of the Crown case that the additional evidence specifically available against Mr Phillips was also available against Mr Collier. The Judge also dealt with two other points made by Mr Fairbrother – that is an alleged inconsistency between Mr Najim’s evidence at trial and in an earlier statement, and the absence of a film of CCTV coverage.
[47] Mr Fairbrother is strictly correct. The Judge should have addressed each defendant’s position separately. They joined primary cause in a concerted attack on the identification evidence. Nevertheless, there were differences, and it would have been preferable for the Judge to separately summarise each defence.
[48] However, we are not satisfied that the Judge’s omission gave rise to a miscarriage of justice. He structured his summing up by reference to the competing contentions of the Crown and the defence collectively in the critical areas. As we have noted, he did isolate the primary element of Mr Collier’s discrete line of defence based upon Mr Damklof’s evidence, emphasising that it was given to corroborate Mr Collier’s denial of participation. Ultimately each defence was sufficiently before the jury, albeit in a loosely structured way.

(c) Murderous intent

[49] Thirdly, Mr Fairbrother says that MacKenzie J failed in his obligation to direct the jury on each defence available to each of Messrs Collier and Phillips on the primary element of the charge of murderous intent. In closing Mr Snell had addressed the jury first. He devoted considerable time to this element of the charge. He examined the evidence carefully. His proposition was that the jury could not infer from the circumstances of the attack that the two assailants intended to kill Mr Najim.
[50] Mr Fairbrother, on the other hand, made a tactical decision in a relatively shorter address to concentrate on identity and other issues. He said nothing about the legal elements of the charge of attempted murder by reference to Mr Collier’s alleged participation. He was apparently content to leave this aspect to Mr Snell.
[51] After summarising the competing contentions on murderous intent advanced by Messrs Collins and Snell, MacKenzie J said this:

... On this aspect of the case, the ultimate question is whether you are satisfied beyond reasonable doubt that, based on the severity of Mr Najim’s injuries and other relevant evidence, the persons who attacked Mr Najim did so intending to kill him. That is for you to decide. I suggest that you may have little difficulty, if you do reach that conclusion, that both of the persons who did this did each commit an act to achieve that purpose, one by putting Mr Najim in a headlock and the other by cutting his throat.

[52] Significantly, Mr Fairbrother does not challenge the Judge’s expression of an opinion on this issue in the passage just cited. Instead, he says the Judge should have drawn additionally to the jury’s attention that the person who cut Mr Najim’s throat, said to be Mr Phillips, had reached into his pants, grabbed something and then started slashing him. He says there is no evidence that the attacker who held Mr Najim knew that the other one had a cutting instrument.
[53] We must record that Mr Fairbrother’s argument suffers from a degree of disingenuity. He made a tactical decision to run Mr Collier’s defence on a denial of participation. It was an all or nothing approach. Mr Fairbrother must have assessed the risk that its success may be compromised by addressing alternatively on the elements of the offending. That course would have implied an acceptance of a default position – that is, “it was not me but if it was I did not act with a murderous intent ...”. He now complains that the Judge nevertheless should have directed the jury on an issue he sought to avoid because he regarded it as contrary to Mr Collier’s interests.
[54] The relevant legal principles are succinctly summarised in this Court’s decision in R v Somerfield:[14]

[17] The trial Judge is obliged to put a defence to the jury when it is reasonably available to the jury on the evidence: R v Keremete CA247/03, 23 October 2003 at [12]. That is so even if defence counsel has not addressed it: R v Tavete [1988] 1 NZLR 428 (CA). Accordingly, it may be necessary to leave consent to the jury in a case in which the only defence was that no sexual activity occurred: R v Williams CA448/02, 12 June 2003 at [27]; R v Gaelic CA56/03, 4 December 2003.

[18] However, there will be no miscarriage of justice unless the evidence could support a defence founded on consent: Keremete; R v Allison CA489/95, 21 February 1996. Further, the Judge need not emphasise consent if the defence is that no sexual activity occurred: Williams. To do so may be to distract attention from the defence advanced.

[55] We are not satisfied that MacKenzie J was obliged to direct on this element of the charge because it was not a defence reasonably available to Mr Collier. Alternatively, if the Judge was so obliged, his omission did not raise a risk of a miscarriage of justice. Mr Fairbrother candidly acknowledges that he did not regard the Judge’s omission as material at the time. The point only occurred to him when preparing for this appeal. While Mr Fairbrother cannot waive a judicial error, an experienced counsel’s failure to object is significant when considering whether there was a risk of miscarriage of justice.
[56] The circumstances of the joint nature of the attack gave rise to only one inference. The two men acted in concert, aiding and assisting each other to achieve an agreed purpose. Each was to play a predetermined role. One was to immobilise Mr Najim, placing him in a position where he would be unable to resist a physical attack. The other was to slit his throat.
[57] It is inconceivable that the man who immobilised Mr Najim with the application of such force that he rendered him briefly unconscious did not know that the other was armed with a weapon and intended to use it in the way he did. Using a weapon to slit a man’s throat from ear to ear is designed to kill him. Mr Collier’s presence throughout the attack verifies his intention. And the nature and severity of Mr Najim’s injuries provide graphic confirmation of his assailants’ common intentions.

(d) Alibi

[58] Fourthly, Mr Fairbrother says that the Judge’s direction on alibi evidence effectively reversed the onus, placing responsibility on Mr Collier to establish a reasonable possibility that Mr Damklof’s explanation exonerated him.
[59] We do not accept Mr Fairbrother’s construction of the Judge’s direction (see above at [40]). It was a clear statement that, for example, if the jury accepted Messrs Collier and Damklof were together at the time of the attack, that would raise a reasonable doubt. As Mr Fairbrother acknowledged, it was consistent with the Judge’s earlier, orthodox directions on the standard and burden of proof.
[60] All four of Mr Collier’s grounds of appeal must fail.

Mr Collier’s sentence appeal

[61] MacKenzie J sentenced each man to a term of eight years imprisonment cumulative upon existing sentences. He also sentenced Mr Collier to serve a minimum period of five years. On its face, this difference seems disparate and unfair, as Mr Fairbrother submits. He says that minimum periods of imprisonment are intended to reflect the criminality of the offence and that an anticipated projection of a decision by the parole board relating to other sentences is beyond the provisions of s 86(1) of the Sentencing Act 2002.
[62] However, on analysis, we are in no doubt that the Judge was correct. The Judge correctly observed that he was required to:

... stand back and look at the totality of the criminal behaviour, the conduct leading to your existing sentences as well as present conduct, and the total resulting penalty.

[63] At the time of the offending Mr Phillips had served three years of a notional single sentence of eight years imprisonment. Imposition of a cumulative term of eight years imprisonment, leading to a notional single sentence of 16 years, means that Mr Phillips is not eligible to apply for parole until November 2013.
[64] On the other hand, Mr Collier had at the time of offence served eight years of a notional single sentence of ten and a half years imprisonment. Imposition of a cumulative term of eight years imprisonment would have resulted in a notional single sentence of 18 years and six months. Critically, he would have been eligible to apply for parole in June 2009. In other words, there was a possibility that he would not have effectively served any further time for committing this serious crime. And, as Mr La Hood submits, if Mr Collier had committed this offence while in the community and received the same sentence he would not have been eligible for parole until November 2015.
[65] Contrary to Mr Fairbrother’s submission, the circumstances of this offending plainly justified a minimum period of imprisonment for each offender in terms of s 86(2) of the Sentencing Act. MacKenzie J, however, made a specific exception for Mr Phillips because of the stage of his existing sentence. Mr Collier has no grounds for complaint that the same exception should have been made for him. We are not satisfied that the Judge erred.

Result

[66] Mr Phillips’ appeal against conviction is dismissed.
[67] Mr Collier’s appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v Phillips HC Napier CRI-2009-020-4936, 26 November 2010.
[2] Criminal Disclosure Act 2008, s 13(2)(a) and s 15(1).
[3] R v Phillips HC Napier CRI-2009-020-4936, 6 October 2010.
[4] Evidence Act 2006, s 43.
[5] R v Phillips HC Wellington CRI-2009-020-4936, 27 August 2010.

[6] We note that Ms Fairbrother, who appeared for Mr Collier at the pretrial hearing, did not object the admission of the muster board evidence: at [37].

[7] At [40]. Given Mr Snell’s concession, Mallon J’s analysis is not affected by the Supreme Court’s recent decision on s 45 in Harney v Police [2011] NZSC 107.
[8] At [36].
[9] At [41].
[10] R v Tamihere [1991] 1 NZLR 195 (CA).
[11] At [22].
[12] At [30]–[33].
[13] See R v Keremete CA247/03, 23 October 2003 at [18] and [19].
[14] R v Somerfield [2009] NZCA 231.