Bullock v R [2013] NZCA 307 (19 July 2013)

Last Updated: 25 July 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA741/2012 [2013] NZCA 307
BETWEEN	SHANE PATRICK BULLOCK Appellant
AND	THE QUEEN Respondent
CA742/2012
AND BETWEEN	ROBERT WILLIAM JOHN BRITTON Appellant
AND	THE QUEEN Respondent

Hearing:	13 June 2013
Court:	O’Regan P, MacKenzie and Miller JJ
Counsel:	B J Hunt for Mr Bullock No appearance for Mr Britton M E Ball for Respondent
Judgment:	19 July 2013 at 11 am

JUDGMENT OF THE COURT

The appeals are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] Shane Bullock and Robert Britton appeal against their convictions on one count each of attempting by threats to dissuade a witness, Gary Britton, from giving evidence at the trial of Wayne Tweedale.
[2] There are two grounds of appeal.^[1] The first is that the indictment was amended twice during the trial and the materials before the jury were apt to confuse them about a particular of the charge, namely the making of threats. The second is that Gary Britton, who was called by the Crown, gave evidence about a meeting with counsel who appeared for the appellant Shane Bullock at trial, resulting in a possible miscarriage of justice through counsel’s unavailability as a witness.
[3] Ms Hunt appeared for Mr Bullock in this Court, but she advised that Robert Britton, who was evidently unable to secure legal aid, adopted her submissions and sought leave not to appear in person. We have proceeded accordingly.

The narrative

[4] Gary Britton and Wayne Tweedale fell out over a land transaction. Conflict between them led to Mr Tweedale being committed to appear at trial in the District Court at Wanganui on 4 October 2010, facing charges of theft and assault. Gary Britton was to give evidence.
[5] Robert Britton is the son of Gary Britton, but it seems there is little love lost between them. Mr Bullock is an associate of Mr Tweedale’s.
[6] On Sunday 3 October 2010 Mr Bullock, Robert Britton and Robert’s brother Shannon Britton arrived at Gary Britton’s house. The Crown alleged that Mr Bullock engaged in heated discussion with Gary Britton, trying by threats to dissuade him from giving evidence. Robert Britton was said to have assisted by standing by and offering support.
[7] This incident led to the appellants and Shannon Britton facing charges under s 117(e) of the Crimes Act 1961, which creates the offence of wilfully attempting to obstruct, prevent, pervert, or defeat the course of justice “in any other way”. The quoted phrase is explained by the preceding subsections, each of which creates a specific offence. Notably, under s 117(a) it is an offence to attempt to dissuade a person by threats from giving evidence. The Crown had initially relied upon s 117(a), but the charge had been amended after some pre-trial skirmishing about whether the committal statements disclosed a threat.
[8] The indictment upon which the three accused were arraigned for trial at Wanganui before Judge Rea and a jury on 9 July 2012 accordingly invoked s 117(e), alleging that they had attempted by words or conduct to dissuade Gary Britton from giving evidence. The Judge delivered opening remarks to the jury in which he referred to the charge in general terms as wilfully attempting to pervert the course of justice.
[9] No sooner had those remarks been delivered than the indictment was amended at the instance of Mr Brosnahan, counsel for Robert Britton, to allege an offence under s 117(a). His evident purpose was to confine the Crown to an allegation that the attempt had been made by threats alone.
[10] Crown counsel, Mr Mallalieu, accordingly opened the Crown case on the basis that the appellants had sought to dissuade Gary Britton from giving evidence by threats, implied or otherwise. Both defence counsel also referred in opening to the need to prove threats. It appears from Mr Mallalieu’s opening address that because of the amendment the jury materials that had been prepared for trial were not given to the jury; he told them that they would be given materials the following day.
[11] During his evidence in chief Gary Britton volunteered the following account:

1. ... next thing that white car pulled up. It was, um, Shannon, Robert and Shane pulled up in the driveway, and they all got out. And Shane had his kids and they all got out, and they come round to the house and said, “Do you wanna” – wanted to talk. And I moved out to the corner of the house and was talking there, and Shane said to me, “Do you want to go up the road and talk, or down the road?” And I said, “Oh, well go and talk out here,” moving round to where the truck was parked in front of the house and the carport. And he’s going on about, “Wayne Tweeddale took a bullet in the back for me,” and, “Wayne’s my brother.” And then he said, um, “Just been out at Roger Crowley’s,” and he said, “If you don’t turn up the Court tomorrow, Roger’ll give him off.” And I told him I wasn’t going to do that. And um, when he said that, which had brought back memories from years ago –

Q. Sorry, just tell us what he said to you.

...

1. He said, “Roger Crowley’ll get him off,” and I said, “I wasn’t going to turn up in Court or drop the charges,” and he just kept on going on about it, going on about it. And I said I wasan’t going to drop the charges, and he just kept going over the same ground. Then he said, um “You got family, Shannon and Norma,” and called me a nark. And that was the last thing before he left, then the last thing was said where Robert said to me when I saw – when he was leaving is, “Me and Tweed’ll be back to sort yous out.”

(emphasis added.)

It will be seen that Mr Bullock is said to have sought to convey the impression that Mr Crowley, his own counsel, had said that if Gary Britton did not turn up to Court the next day, then Mr Crowley would get Mr Tweedale off.

[12] This allegation came as a surprise to Mr Crowley. He knew that on 26 October 2010 Gary Britton had made a statement, in which he said that Mr Bullock had claimed that he met Mr Crowley on Saturday 2 October 2010. However, that statement did not refer to anything said at the meeting, so counsel had attached no significance to it. Mr Crowley read the statement into the record when cross-examining Gary Britton.
[13] Mr Bullock instructed Mr Crowley that he wanted to press on with the trial. Giving evidence in his own defence, he denied that he had visited Mr Crowley or made any such statement to Gary Britton.
[14] At the end of the first day there was a discussion in chambers as a result of which the indictment was further amended. It again alleged an offence under s 117(e), but it now specified that the attempt had been made by threats. Mr Mallalieu drafted it overnight and emailed it to the Registrar of the District Court at New Plymouth, where the trial was being held.
[15] The evidence concluded on the second day and counsel addressed the jury that day. All focused on whether any threats had been made.
[16] The Judge summed up on the morning of the third day, 11 July 2012. The Court records show that the jury were provided with copies of the further amended indictment, and the summing up tends to confirm that; the Judge read the indictment to them when summing up, saying that it was “the first time, really, you have encountered it”:

[19] It says the Crown solicitor at Wanganui charges that Shane Patrick Bullock, Robert William John Britton, and Shannon Luke Britton, at Kauarapaoa, Wanganui, on 3 October 2010 attempted to dissuade a person, namely Gary Robert Britton, by threats, from giving evidence in any cause or matter, namely the trial of Wayne Paul Tweedale.

[17] The Judge instructed the jury on the elements of the offence as follows:

[26] So those are the three things that the Crown has to prove. One, that Shane tried to persuade him not to give evidence at the trial, that he did so by the use of threats both directly and indirectly, by spoken and the way he behaved, and lastly that Gary was to be a witness and, as I said, that is accepted.

[27] So the issues here really are, were there threats, and if there were, has the Crown proved that they were threats of a type intended to dissuade Gary from being a witness.

[18] Notwithstanding this narrative, the Case on Appeal for this appeal included the original indictment on which the appellants had been arraigned at the beginning of the trial and the associated jury materials, in which the jury were to be told that the Crown must prove that the accused used words or conduct intended to dissuade Gary Britton from giving evidence. That allegation was not confined to threats. Ms Hunt argued that the jury may have been given the original set of materials by mistake. We accordingly asked the trial Judge for a report. The Judge advised that he has no independent recollection of what went to the jury but the trial record indicates that they received a new set. We agree. The obvious explanation for the original set appearing in the Case on Appeal is that the registry officer who collated the record copied that set by mistake. In the result, we are not persuaded that the jury received the wrong set of materials.
[19] During their deliberations the jury asked the following question, referring to the evidence quoted at [11] above:

Can Mr Crowley confirm or deny that Shane went to see him two days before the trial?

[20] The Judge saw counsel in chambers, where Mr Crowley, who had checked his file and his diary, assured him that there had been no such meeting. The Judge accepted counsel’s assurance. He then directed the jury that Mr Crowley could neither confirm nor deny the meeting, for he was not a witness and could not be made one at that late stage. The evidence must remain exactly as it was.
[21] In due course the jury returned guilty verdicts against the appellants. Shannon Britton was acquitted.

Mr Crowley’s affidavit

[22] Mr Crowley has since sworn an affidavit in which he confirms that he had no such discussion with Mr Bullock and held no meeting on Saturday 2 October 2010.

Does the new evidence justify a retrial?

[23] Ms Hunt submitted that Mr Crowley’s evidence may well have affected the jury verdicts, by confirming that there had been no meeting with counsel and no advice that Mr Tweedale would get off if Gary Britton did not turn up to Court. That being so, she argued, the evidence affected the credibility of Gary Britton, which mattered in a case in which the issue was whether threats were made.
[24] We are prepared to accept that the relevance of Mr Crowley’s knowledge could not have been foreseen until Gary Britton gave his evidence in chief. Ms Ball did not take the point that no application was made to abort the trial so that counsel could give evidence, Mr Bullock preferring to press on. In any event Mr Bullock’s decision to do so could not bind Robert Britton. In the circumstances, we will treat the evidence as fresh.^[2]
[25] We also recognise that Gary Britton’s claim that Mr Crowley had given such advice was in evidence, as was his earlier statement, and Mr Bullock had denied saying any such thing. We assume too that the jury would have accepted Mr Crowley’s evidence.
[26] However, we are not persuaded that the evidence might have led the jury, acting reasonably, to acquit the appellants.^[3] That is so because there is no logical reason to suppose that Mr Crowley’s account would lead the jury to conclude that it was Gary Britton, rather than Mr Bullock, who was lying about their conversation. Either man might have invented a detail, in Mr Bullock’s case to lend credibility to his threat and in Gary Britton’s to enhance his complaint that he had been threatened. It is if anything more plausible that Mr Bullock invented this particular detail, since Gary Britton would likely accept that he knew something of Mr Tweedale’s defence strategy.
[27] Of course the jury did seek confirmation from Mr Crowley. But it is not uncommon for juries to inquire about evidence that might have been led. Such inquiry need not signify that the evidence will alter their verdicts. The appellate question remains whether the evidence might have led the jury, acting reasonably, to acquit. We have held that it would not have done so.
[28] The Judge handled the jury question in an orthodox manner, by telling the jury that they must decide the case on the evidence they had. It followed from his earlier directions that if the evidence left them unsure, they must acquit.

Decision

[29] The appeals are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Ms Hunt accepted in argument that a third ground, unreasonable verdicts, rested on the second ground so added nothing to the appeals.

^[2] Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [33].

^[3] Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [103].