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Court of Appeal of New Zealand |
Last Updated: 23 September 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
1 September 2014 |
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Court: |
Wild, MacKenzie and Andrews JJ |
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Counsel: |
L Ord for Appellant
H W Ebersohn for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal, which is against conviction only, is dismissed.
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REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Archibald filed his notice of appeal on 25 October 2013, some eight months out of time. Mr Archibald has never satisfactorily explained that delay. Further, Mr Archibald has not prosecuted his appeal with diligence. The Court has had to give timetabling and other directions on several occasions. Despite those shortcomings, we have decided to grant Mr Archibald an extension of time for his appeal, and to deal with it on its merits.
[2] The point taken on the appeal is that the absence of a direction by the trial Judge under s 122 of the Evidence Act 2006 resulted in a miscarriage of justice.
Facts
[3] Mr Archibald was one of four accused tried before Judge Mill and a jury in the Wellington District Court in November 2012. He and two others were convicted of aggravated robbery. Three of the accused, excluding Mr Archibald, were also convicted of wounding a Mr Andrew Howes[1] with intent to cause him grievous bodily harm following the robbery. Mr Howes had also been involved in the robbery, but had earlier pleaded guilty.
[4] On the evening of 26 July 2011 a number of men associated with the Nomads gang were at a gathering at Mr Howes’ home in Colombo Rd, Masterton. During the evening Messrs Howes, Namana and Thompson left the house in a car and went and robbed a “tinnie house” on Church St in Masterton.
[5] The Crown alleged Mr Archibald was a party to that robbery because he had taken a sawn off .22 calibre rifle out of the fireplace in the Colombo Rd house and passed it out the window to Mr Namana, shortly before the three robbers left armed with the rifle. The only evidence against Mr Archibald came from Mr Tyler Hodsen.[2] Mr Hodsen, 17 at the time, is Mr Howes’ son.
[6] Mr Howes gave evidence for the Crown at the trial. He said the robbery was his idea and that he was the ringleader. He identified Messrs Thompson and Namana as the other two robbers and said Mr Thompson had the rifle. He did not implicate Mr Archibald.
[7] We have kept this factual background brief. It is set out in more detail in this Court’s judgment in Namana and Thompson v R,[3] to which we will revert, because the point taken on this appeal was also taken unsuccessfully by Mr Namana.
Appellant’s submissions and our response to them
[8] Ms Ord sought to distinguish Mr Archibald’s position from that of Mr Namana, in terms of the need for a s 122 direction. She did this on two grounds:
- (a) Mr Archibald was only charged as a party to the aggravated robbery; and
- (b) Mr Hodsen’s evidence was the only evidence implicating Mr Archibald in the robbery.
[9] Ms Ord did not develop (a), leaving us unsure how this distinguishing feature assists this appeal. As to (b), Ms Ord directed us to Mr Hodsen’s evidence-in-chief about what he saw Mr Archibald doing:[4]
- So tell me what you see when you’re in – so where are you when you see him getting the gun?
A. I’m in the doorway of the kitchen to the lounge room.
A. Yeah.
Q. Which side is the fireplace?
Q. What do you see Nigel Archibald doing?
Q. Did you say anything to him when you saw that?
A. No, I just kept my mouth closed.
Q. How did he know where the gun was?
A. I dunno, he must have been told, Dad must have told him.
Q. You didn’t?
[10] Ms Ord submitted that was the sum total of the evidence against Mr Archibald. She said there was no other evidence even putting Mr Archibald at the gathering at the Colombo Rd house. In fact, Ms Ord is incorrect. Mr Howes said in his evidence Nigel Archibald was at the Colombo Rd party on the night of the robbery.[5]
[11] Mr Hard represented Mr Archibald in the trial. In cross-examination, Mr Hard made a sustained challenge to Mr Hodsen’s credibility as a witness and on the reliability of his evidence. In relation to his evidence about seeing Mr Archibald passing the rifle out the window, this included:[6]
- And you have claimed that you saw Nigel Archibald uplift that gun from above the grate in the fireplace haven’t you?
A. Yes.
Q. Well that’s just a plain lie isn’t it?
A. No it is not.
And:[7]
A. No I am not.
And:[8]
A. No, I did not.
A. No, it is not.
Q. So who was on the robbery? Yourself, your dad, and who else?
A. No one. It was Paul, Bon –
A. No I have not.
Q. Just to save your own skin?
A. No, ‘cos my skin was already saved. I done it myself.
Q. Your skin was saved by a deal?
A. No it was not.
[12] These attacks on Mr Hodsen’s credibility and reliability were also to the forefront of Mr Hard’s address to the jury. In summary, the thrust of these renewed challenges was:
- (a) Those at the gathering at the Colombo Rd house on the evening of the robbery, including Mr Hodsen, were drinking, smoking cannabis, popping pills and “valium [was] being handed around”.[9]
- (b) Mr Hodsen’s account of seeing Mr Archibald take the rifle from the fireplace and hand it out the window was not corroborated by any other witness “whatsoever” and was “just nonsensical”.[10]
- (c) There were no “forensics” supporting Mr Hodsen’s evidence that Mr Archibald had handled the rifle.[11]
- (d) Mr Hodsen did not voluntarily go to the police, but made a statement about the events of the evening of the aggravated robbery only after he was arrested on 7 September 2011 (about six weeks later) and charged with unrelated serious offences.[12]
- (e) Mr Hodsen said nothing in his 7 September statement implicating Mr Archibald in the robbery. He only did that in a written statement he made eight days later on 15 September 2011.[13]
- (f) Mr Hodsen made that statement implicating Mr Archibald when “he was in deep trouble” and to assist himself in the face of the serious charges he faced. The consequence was:[14]
... when he finally gets sentenced on the 18th of November, of the same year, some of the serious charges have been removed and he’s sentenced on less serious matters.
So Mr Hodsen got a “sweetheart deal” and “did very well in the end”.[15]
(g) Mr Hodsen admitted “he fingered people he didn’t have a very close association with, these guys [Mr Hard obviously indicated the accused in the dock including Mr Archibald]. These weren’t his mates”.[16]
(h) Mr Hodsen had a motive to lie:[17]
You’ve got self confessed criminals with plenty to gain. Fingering the people they don’t particularly like you might think but leaving their mates right out of the mix.
[13] In summing up the case for the jury, Judge Mill said this:[18]
[39] Now the Crown, of course, going back to your document, rely on the evidence of Andrew Howes and Tyler Hodsen to say Mr Thompson was there and also there is evidence of his car being at that address of 185 Colombo Street that night. Now a lot has been said about Andrew Howes and Tyler Hodsen’s evidence and you will recall what has been said by counsel.
[40] Now it is important, it is important when you look at their evidence, that you consider whether they both or either of them have a motive to lie. The question is, is their evidence reliable? In this respect I have to say this, the evidence of Andrew Howes and Tyler Hodsen is critical to the cases against all of the accused and you have to accept their evidence to find them guilty and their evidence was strongly challenged in cross-examination by all of the lawyers for the accused and essentially they were both accused of falsely implicating the accused men for various reasons, for example to gain a discount on sentence or a lighter sentence, to have charges reduced in seriousness or perhaps to save their friends from suspicion or being charged. As I recall they were the main criticisms, there may have been others.
[41] Now what you make of their evidence is entirely a matter for you but you must consider these criticisms and whether these people had motives to lie about what happened when you are deciding to accept their evidence as reliable and truthful. In the end it is for you to decide but also you will need to consider whether Mr Howes’ evidence that it was Mr Namana and not Mr Matiaha who was with him at 170 Church Street ...
...
[44] Now the defence challenge to Mr Hodsen’s evidence is essentially that he is not telling the truth and I talked about that just a moment ago. But I just want to talk about one other possibility which Mr Nisbet, in fact raised in his address to you. Tyler Hodsen gave evidence that he identified Mr Namana and indeed Mr Thompson as standing outside the window when the rifle was allegedly handed out. And he also identified them later in the driveway, when he says his father was being seriously assaulted.
[45] As I said before, the challenge essentially to his evidence is that he is lying. But if you consider that he is not lying about that, he is an honest witness about that and he is saying what he believes he saw, then I just have to caution you about that in this way. An honest witness who identifies something they see or someone they see, can be a mistaken witness. And a mistaken identification, of course, can result in a serious miscarriage of justice and a mistaken witness can be a convincing witness. So caution is required.
[14] Ms Ord made no criticism of these parts of the Judge’s summing-up.
[15] A little later in the summing-up the Judge said this:
[50] I just want to say one or two things about Mr Archibald. Mr Archibald, when he was interviewed in his video interview, had quite a lot to say about how much he had had to drink and how intoxicated he was that night and you will recall that essentially what he was saying, that his previous statement, that he was at home that night, was something that he is still staying. But that he was so drunk or intoxicated, that he didn’t know everything but he stuck to his story essentially, that he was at home and he had no recall of being at 185 Colombo Road or doing what he was said to have done, taken the gun out of the fireplace, handing it over. And this may be relevant to the issue of, if you find he was there and if you find that he took the firearm out of the fireplace, and handed it to Mr Namana, what did he intend when he did that, given that he had been drinking?
[51] Now a drunken intent is still intent. You may do something when you are drunk, that you wouldn’t do when you are sober. Now some of you may know what I am talking about, others may not. But you still intend to do it. But in this case if you find that he was at 185 Colombo Road and he did retrieve the gun and hand it to Mr Namana, the statement to the officer in charge was essentially, if he was there and did have that, he has no recollection of it. And so what he intended essentially could be a number of things. And when you are considering what his intent was, you need to take into account his state of mind.
[16] Ms Ord submitted that the Judge needed, at that point, again to caution the jury about relying on Mr Hodsen’s evidence and to repeat that his was the only evidence against Mr Archibald.
[17] Later, when he came to sum up Mr Archibald’s defence, the Judge said this to the jury:[19]
[76] Mr Hard, for Mr Archibald, said that this is a case where there is plenty of doubt, self serving evidence and sweetheart deals he said. There was plenty going on at 185 Colombo Road, given the booze and the pills and the cannabis that was being used, people coming and going. People being intoxicated or stoned, all sorts of conversations and groups forming. There is no evidence, he says, that Mr Archibald knew about the planned robbery, so how can you be sure he knew what was to go down. There is no evidence that Mr Archibald put the gun in the first car and he says that probably Tyler put it there, knowing where it was stashed, that’s what his father said, he would have known. And what evidence is there that Mr Archibald would have known that Tyler and his father went out, on what he called a criminal mission earlier on and why would they re-stash the gun. He talks about the credibility of the witnesses which has already been referred to and he says that the gun was likely kept by Mr Howes or stayed in the car. And that Mr Archibald wouldn't have known where it was, but Tyler would have known. And so he has given this evidence for the purpose of getting the gun out of one car into the hands of Mr Namana and Mr Thompson and it is simply not true.
[77] There is no link between the gun and Mr Archibald through any forensic evidence and the evidence against him is inherently unreliable, a changing story to the police and Tyler’s evidence, coincidentally changed after he faced serious charges and he had plenty to gain in giving a statement to the police. You can’t even eliminate Tyler and his mates Ashley and Debo from being part of the aggravated robbery so you can't be sure of very much at all.
[18] Ms Ord’s submission about these paragraphs was the same. She argued the Judge needed again to caution the jury that Mr Archibald had only been implicated by one witness. And that witness was unreliable and had a motive to lie.
[19] In dismissing Mr Namana’s appeal in the judgment mentioned in [7] above, this Court set out the relevant passages of the Judge’s summing-up. It held: “Assuming s 122(2)(c) applied, we are satisfied that Judge Mill adequately directed the jury in terms of s 12[20]1)”.20
[20] We are similarly satisfied in respect of Mr Archibald. We add two observations. First, a trial Judge should “tread cautiously in determining whether to give a reliability warning” in terms of s 122.[21] Those are the words this Court used in its judgment in Taylor v R where it offered this guidance to trial Judges:[22]
... A specific warning about the reliability of particular evidence has the potential to influence the jury’s deliberations, one way or the other. The Court must always bear in mind that the constitutional function of determining guilt rests with the jury, whose collective task is to evaluate all relevant evidence. If a warning was given, it should be expressed as neutrally as circumstances permit.
[21] In Taylor v R, this Court referred to its decision in R v Harawira where the Court pointed out the need for a reliability warning “will tend to arise where the potential unreliability of the witness is not obvious for the jury to see”.[23] As Mr Ebersohn submitted, one example of a case where the potential unreliability of a witness may not be obvious to a jury is evidence from one prison inmate about what another prison inmate said to him (or her) while they were sharing a prison cell.
[22] This is not such a case. Here, given Mr Hard’s cross-examination of Mr Hodsen, his closing address to the jury, and given also the way in which Judge Mill summed the case up for the jury, there is no room for Ms Ord’s submission that the potential unreliability of Mr Hodsen as a witness may not have been obvious to the jury. Significantly, Mr Hard did not ask the Judge to give a s 122 direction.
[23] That leads neatly into our second, related observation. Even had Mr Hard, pursuant to s 122(3), requested an unreliability direction, Judge Mill did not need to give one. We consider that what this Court said in HP v R applies exactly to this case (and we have adapted this passage to apply here):[24]
... In fact, we consider that had an explicit warning under s 122 been added to everything that had been said on the subject of [Mr Hodsen’s] potential unreliability, the result would have been to over-emphasise that evidence contrary to the intent of s 122(3)(a) of the Act. The jury could well have regarded the warning as tantamount to a judicial invitation to reject [Mr Hodsen’s] evidence.
[24] We reject Ms Ord’s submission that the Judge ought to have given the jury any further direction about the unreliability of Mr Hodsen’s evidence, and with it her submission that justice miscarried in Mr Archibald’s trial.
[25] Mr Archibald initially advanced a second ground of appeal. It was a complaint that Mr Hard had failed to call Mr Archibald’s partner and another, unidentified person who could give evidence supporting his defence that he was “at home with family and friends that night”.[25] Despite directions from this Court, the affidavits necessary to advance that ground were never filed. Ms Ord accepted Mr Archibald had not taken the generous opportunity afforded to him to advance that ground of appeal, with the result that it too must be dismissed.
Result
[26] The application for an extension of time to appeal is granted.
[27] The appeal, which is against conviction only, is dismissed.
Solicitors:
Ord Legal, Wellington for
Appellant
Crown Law Office, Wellington for Respondent
[1] Also known by the surname Howse. But we will use the name Howes.
[2] Mr Hodsen also uses the surname Howse. But we will stick to Hodsen.
[3] Namana and Thompson v R [2013] NZCA 640 at [8]–[21].
[4] Notes of evidence at 160/1–16.
[5] Notes of evidence at 82/29–83/11.
[6] Notes of evidence at 227/15–19.
[7] Notes of evidence at 228/17–19.
[8] Notes of evidence at 231/23–232/8.
[9] Transcript of Mr Hard’s address at 2/1–7.
[10] At 4/28–30 and 5/4.
[11] At 5/5–10.
[12] At 5/24–28.
[13] At 5/30–31.
[14] At 6/10–12.
[15] At 6/22–23.
[16] At 6/27–28.
[17] At 7/11–13.
[18] R v Archibald DC Wellington CRI-2011-035-1537, 23 November 2012. Mr Ebersohn placed this emphasis when setting out these passages in his submissions for the Crown.
[19] Again, Mr Ebersohn’s emphasis.
[20] Namana and Thompson v R, above n 3, at [24].
[21] Taylor v R [2010] NZCA 69 at [64].
[22] At [64].
[23] R v Harawira [1989] NZCA 107; [1989] 2 NZLR 714 (CA) at 726.
[24] HP v R [2010] NZCA 617 at [48].
[25] Taken from the grounds of appeal set out in Mr Archibald’s Notice of Appeal.
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