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Burgess v R [2011] NZCA 600 (30 November 2011)

Last Updated: 7 December 2011


IN THE COURT OF APPEAL OF NEW ZEALAND
CA487/2011
[2011] NZCA 600

BETWEEN KARL GEORGE BURGESS
Appellant

AND THE QUEEN
Respondent

Hearing: 1 November 2011

Court: O'Regan P, Chisholm and Potter JJ

Counsel: C W J Stevenson for Appellant
M E Ball for Respondent

Judgment: 30 November 2011 at 11.30 am

JUDGMENT OF THE COURT


The appeal against conviction is dismissed.

____________________________________________________________________


REASONS OF THE COURT

(Given by Chisholm J)

[1] Following trial before Judge Atkins QC and a jury in the District Court at Palmerston North, Mr Burgess was found guilty on one count of attempting to pervert the course of justice by having his employee swear a false affidavit. This appeal against conviction is on the ground that the jury’s verdict was unreasonable in terms of s 385(1)(a) of the Crimes Act 1961.

Background

[2] At approximately 8.45 pm on 2 August 2009 a patrol car occupied by two police officers was stationary at an intersection on the outskirts of Palmerston North. A Ford Falcon motor vehicle with a distinctive number plate “BURGA1” drove past. One of the officers, Constable Ashford, claims to have recognised Mr Burgess as the driver of the vehicle. The constable gave evidence that he had previously met Mr Burgess on two occasions, once in a professional capacity and once in a non-professional capacity.
[3] Constable Ashford instructed the other police officer, who was driving the patrol car, to follow the Ford Falcon. After following the vehicle for a time the officers observed that it was weaving slightly on its own side of the road. The red and blue lights of the patrol car were activated and the Falcon was required to pull over to the side of the road.
[4] When the Falcon stopped the patrol car pulled up behind it and two spotlights on the patrol car were activated. Having left the patrol car with the intention of speaking to the driver of the Falcon, Constable Ashford noted that there were three people in the Falcon, including the driver. He claims that as he was approaching the driver’s door of the Falcon he saw Mr Burgess’ face in the wing mirror on the driver’s side of that vehicle.
[5] Before Constable Ashford was able to speak to the driver, the Ford Falcon took off at speed. Although the police officers set off in pursuit, this pursuit was abandoned within a short time for safety reasons. However, the police officers were able to observe from the tail lights of the fleeing vehicle that it had come to a stop at an intersection further along the road.
[6] When they reached the intersection the police officers saw that the Falcon had failed to negotiate a right hand turn, crashed through a closed farm gate, and ended up inside a paddock. Three males, of whom one was Mr Burgess, had all alighted from the vehicle and were located in the paddock. Constable Ashford said that Mr Burgess was the person that he had earlier seen in the driver’s mirror.
[7] Mr Burgess was arrested for failing to remain stopped, failing to stop, and dangerous driving. He denied that he was the driver. According to Constable Ashford, Mr Burgess’s response to the constable’s enquiry about who was driving, was “the other guy, did you get him?” The constable said that Mr Burgess declined to name the driver. Evidential breath testing indicated that Mr Burgess had 975 micrograms of alcohol per litre of breath.
[8] It was the Crown’s case at trial that the following day Mr Burgess contacted his employee, Mr Buhck, and asked him to “take the rap”. The arrangement was that once Mr Buhck had been charged and had gone to Court he would be paid money. Mr Burgess explained the events of the previous evening to Mr Buhck, took him to the scene, and told him what to say. Mr Buhck “decided to go through with it”.
[9] An affidavit was sworn by Mr Buhck on 18 August 2009 and a copy of that affidavit was provided to the police. In this affidavit Mr Buhck stated that he was the driver on the night in question; Mr Burgess was in the back seat; two other people, who he named,[1] were in the car; after the car was pulled over by the police it was his decision to speed away; ultimately the car left the road because he was going too fast; and as soon as the car stopped he jumped out and “bolted”.
[10] Subsequently Constable Ashford spoke on two occasions to Mr Buhck about his affidavit. On each occasion, the constable had randomly stopped a vehicle in which Mr Buhck was a passenger. The thrust of these discussions was that the constable believed that Mr Buhck’s affidavit was false because he had seen Mr Burgess driving the vehicle. On neither occasion were notes taken by the constable. On 31 October 2009 Mr Buhck made a statement to the police indicating that his affidavit was false.
[11] A charge of attempting to pervert the course of justice was then laid against Mr Burgess and the trial commenced on 10 May 2011. Evidence for the prosecution was given by the two police officers who had been in the patrol car; Mr Buhck; the Justice of the Peace before whom the affidavit had been sworn; two witnesses who maintained that Mr Buhck was at their place when he was supposed to have been driving the vehicle; and the detective in charge of the case.
[12] The defence case was that Mr Burgess was not the driver of the Ford Falcon on the night in question and that the purported identification of him as the driver was wrong. It was contended that Mr Buhck’s affidavit correctly acknowledged that he was the driver and that he had not been located after the Falcon left the road because he had fled. The defence claimed that the police had brought pressure to bear on Mr Buhck and that this explained, at least in part, why he had changed his account.
[13] Evidence for the defence was given by Mr Burgess and seven other witnesses. Several witnesses gave evidence that Mr Buhck had admitted to them that he was the driver of the Ford Falcon on the night in question. Another witness gave evidence that he had dropped Mr Buhck off in Palmerston North at about 8 pm so that he could drive Mr Burgess and his friends home. There was also evidence challenging the ability of the police officers to determine the number of people in the Falcon and to identify the driver on the night in question.

This appeal

[14] Underlying the appellant’s submission that the jury’s verdict was unreasonable are the following points:

Each of these points was developed in detail by Mr Stevenson. At the very least, he submitted, his analysis demonstrated that there was a reasonable doubt and this was a clear case for the safety net provided by s 385(1)(a) of the Crimes Act 1961 to be utilised.

Crown’s response

[15] Ms Ball’s response on behalf of the Crown was that this is a “classic jury case”. Noting that evidence had been called on both sides, she submitted that the jury’s assessment of credibility and reliability of those witnesses was central to the outcome. She reminded the Court that it was not its role to substitute its own view of the facts, particularly where assessments of honesty and reliability of witnesses are involved.
[16] Ms Ball observed that at trial the Crown relied on the following factors to prove the charge:

She submitted that while the defence called competing evidence to emphasise difficulties with Constable Ashford’s identification and other matters, it was for the jury to assess the competing versions.

The test

[17] With reference to the unreasonable verdict ground in s 385(1)(a) of the Crimes Act, the Supreme Court observed in Owen v R:[2]

[17] ... 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 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.

[18] Earlier the Supreme Court had endorsed various aspects of this Court’s decision in R v Munro.[3]
[19] The following statements in Munro were endorsed by the Supreme Court:[4]

Discussion

[20] It is convenient to address the issues raised in this appeal by reference to the four primary submissions advanced by Mr Stevenson on behalf of the appellant.[5]

Identification evidence of Constable Ashford

[21] If Constable Ashford’s initial identification of Mr Burgess as the driver of the Ford Falcon had been the only evidence that Mr Burgess was the driver, this appeal might have rested on strong grounds. This reflects a number of matters that could have compromised the accuracy of the constable’s identification: it was dark; the opportunity for identification was brief; the car had tinted windows; and the other constable in the patrol car did not make any identification.
[22] Equally importantly the evidence established that the Falcon was very distinctive and it also carried a distinctive number plate. Under cross-examination Constable Ashford acknowledged that he had looked at the number plate before looking at the driver. Given that the constable had met Mr Burgess before (and, judging from voir dire evidence, did not have a very high opinion of him), it is possible that the constable recognised the car and then jumped to the conclusion that Mr Burgess was the driver.
[23] But the evidence went much further than the initial identification. Within a short time the Ford Falcon had been pulled over to the side of the road by the police officers. The driver of the patrol car, Constable Dreliozis, gave evidence that the patrol car stopped about half a car length behind the Falcon and that the lights of the patrol car were on full beam. He also said that he activated the high intensity halogen lights that are fitted to the front of the bar on which the red and blue lights are mounted.
[24] Constable Ashford gave evidence that after he had left the patrol car he could see inside the Falcon and that there were three people in the car, including the driver. He said that as he was walking towards the driver’s door of the Falcon:

I observed the accused looking, slightly leaning forward, looking into his wing mirror watching my approach along the side of the vehicle.

Under cross-examination the constable acknowledged that there was no light shining onto the face of the driver and that he had not recorded in his brief that he was able to identify the accused in the driver’s mirror. But he said “His [the accused’s] face was very clear when I looked at it”.

[25] Constable Dreliozis also gave evidence about the occupants of the Falcon:

I saw three occupants inside the car, um I saw a driver, a front seat passenger on the front left seat and one other passenger in the back of the car.

...

I observed the driver, um, I looked at the driver and I observed that he was holding the steering wheel still. He had his hands on the steering wheel, um, I observed that he was looking in the mirror towards, um, looking back towards us in the mirror and I also observed that he was wearing a jacket with black sleeves...

He said that from where he was seated he was not able to make any identification of the driver. Nevertheless, his evidence supports Constable Ashford’s evidence about the number of people in the Falcon and that the driver’s face could be seen in the mirror.

[26] As to whether the constables were able to see the driver in the mirror, it is significant that Mr Buhck deposed in his affidavit:
  1. THAT I had pulled over and actually stopped, when I looked in my side mirror and saw the cop was walking just in front of his car.

Whether Mr Burgess had given this information to Mr Buhck (the Crown’s case) or it was known to Mr Buhck because he was the driver (the defence case), the jury was entitled to take the view that this paragraph of the affidavit supported the evidence of the constables that they were able to see the driver’s image in the mirror.

[27] Finally, we note that there was unchallenged evidence before the jury that only three people, including Mr Burgess, were located by the police after the Falcon had crashed. Those people did not include Mr Buhck.
[28] Given those matters we have not been persuaded that there is any sound basis for disregarding Constable Ashford’s identification evidence (as suggested by Mr Stevenson). The constable’s evidence was properly before the jury and it was for them to give it such weight as they saw fit. When reaching that conclusion we have also taken into account that the Judge’s directions concerning identification evidence have not been challenged. Those directions related specifically to the identification evidence of Constable Ashford.

Mr Buhck’s statements that he was the driver

[29] In addition to swearing the affidavit on 18 August 2009, Mr Buhck made various statements to others that he was the driver. Evidence about these statements comes primarily from the cross-examination of Mr Buhck and the evidence of three defence witnesses: Mr Bass, Mr Mutch and Mr Shorthall. The crux of this ground of appeal is that in all the circumstances the jury could not reasonably have accepted Mr Buhck’s evidence at trial that he was not the driver.
[30] When considering this ground it is important to place the various statements relied on by the appellant in context. Mr Buhck said that he was asked by Mr Burgess to “take the rap” the morning after Mr Burgess’ car had crashed. That would have been on 3 August 2009. After that Mr Buhck seems to have maintained the stance that he was the driver until he recanted. At least in a formal sense the recantation occurred when he made a statement to the police on 31 October 2009. With those time frames in mind we now consider the various statements relied on by the appellant.
[31] According to Mr Mutch, Mr Buhck told him that he was “freaking out” because he had crashed Mr Burgess’ car “a couple of days ago” when he had been driving Mr Burgess and his mates home after they had been drinking. Given its timing, this statement could have been regarded by the jury as entirely consistent with Mr Buhck’s evidence at trial that he had been approached to “take the rap” for Mr Burgess the day after the accident.
[32] In time sequence, the next statements were to Mr Bass, a private investigator. Mr Bass interviewed Mr Buhck and subsequently prepared the affidavit that was ultimately sworn by Mr Buhck on 18 August 2009. There is no suggestion that Mr Bass had any further involvement with Mr Buhck after the affidavit had been sworn. Again, it was open to the jury to construe these statements as part of the charade that Mr Buhck was running at the time, and thereby consistent with his evidence at trial.
[33] Mr Shorthall gave evidence that in “late September, early October” Mr Buhck told him that he (Mr Buhck) had crashed a “flash Falcon” worth about $90,000. Mr Shorthall said that he and the others listening didn’t believe Mr Buhck and when this was conveyed to Mr Buhck he “just sort of said, ‘Nah, I’m being serious’”. Given that this admission was before Mr Buhck recanted it could have been construed by the jury as a continuation of the charade.
[34] The final statements relied on by the defence came after Mr Buhck had recanted. Mr Mutch gave evidence that Mr Buhck:

...told me he [Mr Burgess] was locked up and I [asked] “Why’s that?”, and he said “I went in and I’ve changed my statement”, and then he just got more into it and told me that the police were on his back threatening him with, um, you know we’re gonna do this to you, we’re going do that. Just putting the hard word on him saying they’re gonna get him, threatening him, tryna break his story, telling him that we want Burga, we know its him, and wanna get him done...

He said he was gonna say he was staying at David’s, David’s house, his friends, with his, um, with David’s mum. They said they will say that he was staying there.

Once again the jury could have concluded that this evidence was entirely compatible with the evidence that Mr Buhck had given at trial.

[35] Having completed that analysis we come back to the appellant’s proposition that the jury could not have reasonably accepted Mr Buhck’s evidence at trial. We do not accept that proposition. It was for the jury to assess Mr Buhck’s evidence alongside all the other evidence and to decide whether Mr Buhck’s evidence at trial was truthful. When undertaking that task the jury had the benefit of directions from the Judge about the two “diametrically opposed accounts” from Mr Buhck and the need for caution when deciding whether to accept his evidence.[6]

Mr Burgess’ denial that he was the driver and the supporting evidence of his farm manager

[36] When he was arrested after the accident Mr Burgess immediately denied that he was the driver. He also gave evidence at trial confirming that denial. His evidence was supported by his farm manager who said that he had taken Mr Buhck to Palmerston North so that Mr Buhck could drive Mr Burgess and his friends home.
[37] Judge Atkins gave the standard tri-partite direction to the jury concerning evidence given and called by Mr Burgess.[7] It was for the jury to assess that evidence in accordance with those directions. We do not see anything in this point.

Evidence that Mr Buhck was elsewhere

[38] Mr Barnes and his mother were called by the Crown to show that Mr Buhck was at the Barnes’s household on the night in question. With reference to the evidence given by Mr Mutch and the serious flaws exposed during cross-examination, the appellant contends that the evidence from Mr Barnes and his mother was fabricated and hopelessly unreliable.
[39] The jury had the advantage of seeing and hearing these witnesses and making its own assessment. More importantly, however, their evidence was not pivotal to the Crown case. Even if it was rejected there were a number of strands to the Crown case and there was still sufficient evidence to support the conviction. Again we do not find any merit in this point.

Conclusion

[40] Whether the four points raised by Mr Burgess are considered individually or in combination, we have not been persuaded that the jury’s verdict was unreasonable in terms of s 385(1)(a) of the Crimes Act.

Result

[41] The appeal against conviction is dismissed.

Solicitors:
Crown Law, Wellington for Respondent


[1] These people did not give evidence for the prosecution or defence.
[2] Owen v R [2008] 2 NZLR 37.
[3] R v Munro [2008] 2 NZLR 87.
[4] At [13].
[5] See above at [14].
[6] At [19] and [20] of the Judge’s summing up.
[7] At [9]–[12] of the Judge’s summing up.

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