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Court of Appeal of New Zealand |
Last Updated: 23 June 2015
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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: |
3 March 2015 (further submissions received 13 May
2015) |
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Court: |
French, Asher and Williams JJ |
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Counsel: |
C W J Stevenson for Appellant
A Markham for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
[1] Following trial in the Wellington District Court before Judge Davidson and a jury, Mr Manoharan was convicted of aggravated robbery with a firearm.
[2] He was tried together with a Mr Gorinksi who was also convicted of the same offence.
[3] Mr Manoharan now appeals his conviction.
[4] The appeal was filed out of time but the delay was not significant and has not prejudiced the Crown. An extension of time is accordingly granted.
Factual background
[5] At approximately 6.00 pm on 19 June 2011, three males disguised and armed with shotguns burst into the Silverstream home of an elderly couple Mr and Mrs Wiffen. The offenders tied Mr and Mrs Wiffen’s hands with black electrical cables and made them lie on the floor with their heads covered.
[6] The intruders demanded cash and gold and forced Mrs Wiffen to open a safe which the couple had in their basement. In total the robbers took between $60,000–$70,000 in cash as well as jewellery and other valuables.
[7] The day after the robbery, a barman at a Palmerston North bar witnessed suspicious behaviour by a group of four male patrons. One of the group had a thick stack of notes, and another wanted to change a large collection of coins, similar to that stolen from the Wiffens. The barman was able to identify Mr Gorinski as being part of the group. The barman also gave a description of an older man sitting in a Ford utility vehicle associated with the group. The description was consistent with Mr Manoharan and it was the Crown case that it was him.
[8] Two days after the robbery (Tuesday 21 June) Mr Manoharan booked rooms for two nights for a group of people at a Lower Hutt motor lodge. He paid $540 in cash. CCTV footage captured Mr Manoharan, Mr Gorinski and several others as well as the same Ford utility and another vehicle, a Mazda which Mr Gorinski had stolen. Mr Manoharan was seen in the Mazda.
[9] During the group’s stay at the motor lodge, Mr Gorinski purchased an Audi motor vehicle for $8,900 in cash.
[10] On Thursday 23 June Mr Gorinski and others stayed at a Lower Hutt Holiday Park. Again the rooms were paid for in cash. Documentation linked to Mr Manoharan was discovered in one of the rooms as well as a receipt dated 21 June for some “Z nails” purchased from a Placemakers store in Levin. Z nails were later found in the Mazda driven by Mr Manoharan. The Crown said this was significant because it put him in the right location and supported their case that he had travelled between Palmerston North and Wellington on 21 June which in turn supported the argument that he was in the Palmerston North bar on 20 June.
[11] On 24 June, the police arrived at the Lower Hutt Holiday Park looking for Mr Gorinski. The stolen Mazda was seen driving off at speed towards Wainuiomata closely followed by a silver Audi driven by Mr Gorinski. There was evidence that it was Mr Manoharan who was driving the Mazda. The cars evaded a police road block, but were eventually tracked to an address where Mr Gorinski, Mr Manoharan and two others were located hiding in a loft space in the garage.
[12] The loft space was in sections divided by rafters. In the section occupied by Mr Manoharan, police found ammunition (stolen in a burglary five days before the robbery) and a broken-down double-barrelled shotgun. A wallet owned by Mr Manoharan was also found stuffed in the roof lining directly above the shotgun.
[13] Property belonging to the Wiffens was found close to Mr Gorinski’s hiding place and in a bag by the Audi parked in the garage. The bag also contained black cable ties.
[14] In evidence Mrs Wiffen said one of the offenders was short, about five foot six inches and that another offender was a good head and shoulders taller than the first. Mr Manohoran is five foot five inches in height. Mr Gorinski is six foot two inches.
[15] Mrs Wiffen also stated that the short offender had a double-barrelled gun about 18 inches long. This matched the description of the gun found in Mr Manoharan’s hiding place. Its length was 19.4 inches.
[16] Mr Wiffen observed one of the offenders wearing well-worn white sport shoes, which he said had a creamy patch with ventilation holes below the laces. When arrested by the police, Mr Manoharan was wearing shoes that matched this description apart from the fact the patch with the holes was grey rather than cream.
[17] The intruders wore gloves and the police were not able to find any fingerprints. Swabs taken from the black cable ties were however subjected to DNA testing. The resulting DNA profile was said in evidence to be 20 times more likely to have resulted from Mr Manoharan than from someone else unrelated to him and selected at random from the general New Zealand population.
[18] At trial, Mr Manoharan’s defence was that he was not one of the three intruders and had had nothing to do with the robbery. Mr Manoharan did not give evidence himself but elected to call evidence that machine-made perforations in shoes are very common, and that the word “tala” was a Samoan word meaning money or dollar. The Wiffens had testified that a word sounding like “tala” or “dala” was spoken by the intruders. Mr Manoharan’s native language is Sri Lankan Tamil and in that language “tala” means head.
Grounds of appeal
[19] Mr Stevenson advanced five grounds of appeal on behalf of Mr Manoharan:
- (a) fresh evidence should be admitted;
- (b) the judge should have given an identification warning;
- (c) late disclosure of DNA evidence;
- (d) DNA evidence was presented unfairly; and
- (e) the verdict was unreasonable.
Fresh evidence
[20] There are two items of what are submitted to be new evidence. The first is an affidavit from the co-accused Mr Gorinski.
[21] In his affidavit, Mr Gorinski admits he took part in the robbery but says that Mr Manoharan was not involved. Mr Gorinski was cross-examined at the appeal hearing.
[22] The Crown was critical of Mr Gorinski not coming forward earlier and allowing a man he now says he knows is innocent to stand trial. We do not place much weight on that argument. In order to be able to exonerate Mr Manoharan, Mr Gorinski would have been forced to admit that he himself was there. Mr Gorinski was entitled to put the Crown to proof.
[23] Regrettably however, we did not find Mr Gorinski a credible witness. He refused to disclose the true identity of the short offender if it was not Mr Manoharan. He prevaricated when asked questions about key aspects of the robbery and at times his evidence was inherently implausible.
[24] He asserted for example that the firearm in the roof space belonged to him and had not been used in the robbery. However, he also claimed not to know where he had got it from and was vague about how long it had been in his possession. When asked why it was in the roof space, he stated that he had taken it out of the Audi car shortly before the police arrived and that the reason it was in the Audi was “because he had been fiddling around with it”. When it was pointed out to him that he had only purchased the Audi two days earlier, he then said the gun had been in the Mazda and that at the time he was in the habit of driving round with firearms and ammunition. It was also important to Mr Gorinski’s claims about this firearm that there was only one used in the robbery. But that was contrary to Mr and Mrs Wiffen’s evidence. They were both clear there were two.
[25] In order to explain why Mr Manoharan was in his company in the days after the robbery, Mr Gorinski stated that almost immediately after the robbery, he phoned Mr Manoharan and asked him if he wanted to drive up with him to Hamilton to purchase some drugs. By his account he issued this invitation to Mr Manoharan despite only knowing the latter for two months and despite Mr Manoharan having no money to purchase drugs. Further, although the journey entailed them driving through the night, Mr Manoharan supposedly never once asked him why he was in such a hurry.
[26] Mr Gorinski was also unable to explain why Mr Manoharan was fleeing the police road block other than to suggest it might have been a “drug fuelled” haze.
[27] We note too that in addition to various lies Mr Gorinski told police about items stolen from the Wiffens that were found in his possession, he also arranged for a false alibi to be given at trial.
[28] We conclude that the evidence of Mr Gorinski is not credible or cogent and does not satisfy the test for admission on appeal.[1] We accordingly dismiss the application to adduce it.
[29] The other item of new evidence consists of evidence from a DNA expert Professor Jamieson. We address that evidence later in the judgment.
Identification warning
[30] Mr Stevenson submitted that Judge Davidson should never have permitted the Crown to rely on the evidence of the Palmerston North barman purporting to identify Mr Manoharan as one of the males handling large sums of cash. Mr Stevenson further submitted that the situation required an identification warning under s 126 of the Evidence Act 2006 and that following Ponga v R the failure to give one rendered the conviction unsafe.[2]
[31] We do not accept that submission. The barman did not identify Mr Manoharan. Rather he described a man sitting in the Ford utility vehicle in terms which allowed the Crown to submit in closing that the description was consistent with Mr Manoharan.
[32] All that the Crown said in closing was “Now it’s a matter for you members of the jury but you might think that is consistent with Mr Manoharan”. The defence made submissions to the contrary in its closing.
[33] In the circumstances, we do not consider the Judge was required to give an identification warning. This was not identification evidence but description evidence of a kind which does not engage s 126. Further, the relevant circumstances were self-evident. The barman expressly stated that he only caught a glimpse, he was not paying too much attention, it was night time and he could not tell exactly how dark the person’s skin was. In closing the Crown reminded the jury he only caught a glimpse and had given a brief description.
[34] We reject this ground of appeal.
The DNA evidence
[35] It is convenient to consider the two grounds of appeal relating to DNA evidence together.
[36] At trial evidence was given about the DNA testing done on swabs taken from one of the black cables used to tie up Mr Wiffen.
[37] The swabs were first subjected to standard DNA testing, but the amount of DNA profiling obtained as a result was extremely limited. They were then subjected to a more sensitive DNA profiling technique known as low copy number (LCN) analysis.
[38] The LCN testing yielded a partial DNA profile, results being obtained from four of the ten DNA sites tested. One of the four DNA components present in the profile corresponded with Mr Wiffen so that single DNA component was subtracted leaving three. This subtraction was done notwithstanding there was no indication of a mixture in the sample, which was to Mr Manoharan’s advantage.
[39] On the further assumption that the remaining components originated from one individual, the key ESR witness for the prosecution, Ms Simon, undertook a statistical analysis. She concluded that the likelihood of obtaining the DNA results that had been obtained was at least 20 times more likely if this DNA originated from Mr Manoharan, who had provided a reference sample, rather than from someone else unrelated to him and selected at random from the general New Zealand population. We refer to this metric as the likelihood ratio. Ms Simon further stated that expressed in words, this likelihood ratio meant that the DNA evidence provided “moderate scientific support” for the proposition that the remainder of the DNA recovered from the cable tie originated from Mr Manoharan.
[40] Mr Stevenson did not receive Ms Simon’s report from ESR until 7 working days before the trial commenced. He was able to consult an expert witness Dr Cropp, but did not have time to brief Professor Jamieson, an eminent expert from the United Kingdom, whom he knew to be a strong critic of the use of LCN evidence in court cases. Mr Stevenson opposed the evidence being admitted. However after conducting a voir dire on the issue, Judge Davidson ruled that the evidence was admissible.[3]
[41] On appeal, Mr Stevenson advanced a number of concerns about the DNA evidence and its use at the trial. In support of his submissions, Mr Stevenson provided us with reports from Professor Jamieson. By way of response evidence, the Crown provided statements from Ms Simon, another ESR scientist Dr Buckleton and a statistician Professor Curran.
[42] There are technical areas of disagreement between the experts, including the propriety of the methodology employed by Ms Simon. However as the hearing evolved and the issues were refined, it became apparent that it was not necessary for us to resolve them.
[43] Mr Stevenson accepted in light of Wallace that LCN evidence is admissible in this country.[4] To the extent that Professor Jamieson’s evidence attempts to relitigate that issue for reasons already rejected by this Court, his evidence does not assist us. There is nothing in Professor Jamieson’s report that persuades us Judge Davidson was wrong in the circumstances of this case to admit the evidence.
[44] Another argument raised by Mr Stevenson as an independent ground of appeal was the lateness of the disclosure of the DNA evidence. It appears the delay was primarily due to obtaining a suspect compulsion order and that the prosecutor provided the information as soon as it became available. Regardless of who was to blame, it is obviously unsatisfactory that it was so late.
[45] However, Mr Stevenson conceded he could have applied for an adjournment of the trial — an application which it is likely would have been granted — but made a tactical decision not to do so. Mr Stevenson decided to use the delay as grounds warranting exclusion of the evidence and is recorded as having told Judge Davidson an adjournment would not be appropriate. When the Judge ruled the evidence was admissible, there was a further opportunity for Mr Stevenson to apply for an adjournment but he did not do so. In those circumstances the lateness of the disclosure is not in our view sustainable as a stand alone ground of appeal although it is still relevant to our overall consideration.
[46] Ultimately the argument distilled to one important point and that was the way the DNA evidence was presented to the jury by Ms Simon.
[47] In cross-examination Ms Simon made appropriate concessions about some of the limitations of LCN testing including its sensitivity, the fact it was not universally accepted by all DNA experts, the fact it was not known when where or how the DNA in this case was deposited, and whether it was from a male or female. She accepted the possibility of transference, the possibility that the DNA was unconnected to the crime and the possibility that it was a mixed sample. She also acknowledged that the likelihood ratio reflected the amount of DNA profiling information obtained and that the sorts of numbers juries normally hear about can be in the tens or hundreds of millions, not 20 as in this case.
[48] What is of concern is the way Ms Simon responded when Mr Stevenson suggested alternative ways of expressing the findings.
[49] As mentioned, Ms Simon expressed her findings in terms of a likelihood ratio, namely that the likelihood of obtaining the DNA results obtained was at least 20 times more likely if this DNA originated from Mr Manoharan rather than from someone else unrelated to him and selected at random from the general New Zealand population. She also stated that the statistic could be expressed in words to mean the DNA evidence provided “moderate scientific support” for the proposition that the remainder of the DNA recovered from the cable originated from Mr Manoharan.
[50] In cross-examination Ms Simon resisted any attempt to express the findings in any other way including resisting endorsing the proposition that many other New Zealanders would contain the same four identified alleles in their DNA profile. Her justification for maintaining such a strong stand was that the likelihood ratio approach is recognised in peer-reviewed literature as being a robust and reliable approach.
[51] We appreciate and respect the need for scientists to be precise. However in the trial context, it is also important that the evidence be presented in a way that is easily understood by laypeople. That is especially so having regard to what is often termed “the CSI effect” of DNA evidence on juries.
[52] In this case the DNA evidence was not strong and there was a real risk that unless it was expressed in a way that made its limitations readily apparent to a layperson, the jury would attribute a weight to it that was not warranted.
[53] In our view, as an expert witness whose role is to assist the court, Ms Simon should have unreservedly assented to the proposition that was put to her. We also know of no reason why the jury could not also have been told that another way of saying essentially the same thing was that it is likely that 200,000 other New Zealanders share the profile found. We agree with Mr Stevenson that laypeople are likely to find that formulation more understandable than a likelihood ratio.[5]
[54] We are however satisfied that any risk of a miscarriage of justice resulting from the presentation of the DNA evidence was sufficiently mitigated by the concessions that had been elicited in cross-examination, the Crown closing, the defence closing and most importantly by the trial Judge’s directions.
[55] In closing address the Crown told the jury that even if they accepted Ms Simon’s evidence, at its highest the statistical ratio was low. It was said that the DNA could clearly be attributed to a large group, it was only one item of evidence that needed to be considered along with all the other evidence and that it “[could] not and should not on its own convict Mr Manoharan.”
[56] In his closing address, Mr Stevenson mounted a very forceful and effective attack on the DNA evidence, making all the salient points he had ably elicited in cross-examination. He reminded the jury of Ms Simon’s resistance to his question about others sharing the same profile but said that the prosecutor had now rightly conceded that many other New Zealanders would share that profile.
[57] He contrasted the low probabilities in this case with likelihood ratios in the hundreds of millions or billions which was the DNA evidence he said juries normally get to hear. He also pointed out that it was not known when the DNA was deposited and that the cable ties would have been handled in the manufacturing process which had occurred overseas, thereby further affecting the statistical analysis. Mr Stevenson also reminded the jury that the analysis had been done on the assumption of a single source.
[58] We accept of course that coming from defence counsel the points are unlikely to have carried the same weight as if they had come from an expert witness such as Professor Jamieson whom Mr Stevenson had not had time to brief.
[59] However the same cannot be said of what the Judge told the jury.
[60] Judge Davidson went to considerable lengths to emphasise to the jury the limitations of the DNA evidence and the danger of being overwhelmed by it just because it was DNA evidence.
[61] First, he gave them a warning before Ms Simon gave her evidence. The warning was sufficiently strong that Mr Stevenson told the jury he could not have put it better himself.
[62] As Mr Stevenson also pointed out to the jury, the warning the Judge gave before the ESR scientists testified was not a standard DNA warning. It was specific to the trial. The Judge told the jury to be “very careful” about the evidence they were about to hear. He told them it was not to be regarded as “a silver bullet” and that in the circumstances of this particular case it could not and they “must not” regard it as in any way conclusive. He specifically mentioned television programmes like CSI where DNA solves a case and said such an approach in the circumstances of the evidence they were about to hear was “all wrong”. He further told them that it was only one part of the evidence and that after hearing it they “might well think” it was of very limited weight in itself. He concluded by saying they were to be on their guard.
[63] Secondly, the Judge returned to the topic again in his summing-up commencing a very strongly-worded and detailed discussion with the observation that the reasons for his earlier warning would now be obvious to the jury. The Judge not only reiterated some of the points made by defence counsel about the DNA evidence, but he personally endorsed the view that it was “fairly weak” DNA evidence. He told them commonly in cases the likelihood ratio is expressed in hundreds or millions but not here and that it was “a very low probability ratio obtained from a very small piece of DNA”. He reminded the jury of the shortcomings of the LCN technique and that the risk of obtaining a mixed DNA profile had not been able to be discounted.
[64] Mr Stevenson was critical of one sentence in the summing-up where the Judge described Ms Simon’s evidence as being that her results were “moderate support for the proposition that it was the accused who had left the DNA on the wrist tie”. We agree that this statement was inaccurate, but it was corrected when the Judge went on to summarise the evidence as being that it was 20 times more likely the DNA originated from Mr Manoharan rather than someone else unrelated to him selected at random from the New Zealand population. Significantly, the Judge further explained that:
... this does not mean Mr Manoharan was 20 times more likely to have committed the crime than anyone else. What [Ms Simon] did was to compare two possibilities. The first that the DNA had come from him, as against the second that it came from some other unrelated person. She concluded that the first possibility was 20 times more likely.
[65] We are satisfied that in the context of the Judge’s warning as a whole that the one offending sentence would not have misled the jury. We are also satisfied that despite Ms Simon’s intransigence in cross-examination the limitations of the evidence and the proper approach to be taken to it were made very clear to the jury. We conclude that no prejudice occasioning a miscarriage of justice resulted from the way the DNA evidence was presented. We therefore reject the grounds of appeal relating to DNA evidence.
[66] In the circumstances we are also satisfied that the fresh evidence from Professor Jamieson does not add appreciably to the trial evidence and is therefore unlikely to have affected the outcome. We dismiss the application to adduce Professor Jamieson’s statement.
The verdict was unreasonable
[67] Before the trial (and before the DNA evidence became available) both Mr Gorinski and Mr Manoharan applied unsuccessfully for a discharge under s 347 of the Crimes Act 1961.[6]
[68] Mr Stevenson argued that at trial the Crown did not persist with all of the evidence that was relied on to defeat the earlier s 347 application. In his submission, the case against Mr Manoharan effectively boiled down to three matters, namely guilt by association after the robbery, non-specific and weak DNA evidence, and his conduct in running away from the police which could be explained by reference to the fact there was a warrant out for his arrest on drug charges. He was never found in possession of any of the stolen property and there were no fingerprints on the gun. In all those circumstances Mr Stevenson said a jury acting reasonably ought therefore to have entertained a reasonable doubt about his guilt.
[69] It is well-established that in considering whether a verdict is unreasonable, an appellate Court is performing a review function and not substituting its own view of the evidence. The threshold for interfering with a guilty verdict on the basis of unreasonable verdict is high.[7]
[70] We agree that the Crown case was not particularly strong. However we also consider that Mr Stevenson’s submissions understate the evidence.
[71] Like any circumstantial case, the prosecution of Mr Manoharan depended on the combined effect of several items of evidence. In such a case, the probative value of the items viewed individually may be weak and inconclusive — the shoes for example are common shoes and there were others in the group with Mr Gorinski — but they derive strength or cogency by being considered together.
[72] In our assessment when one considers the combined effect of the evidence about height, shoes, the DNA, Mr Manoharan’s association with large amounts of cash, and property belonging to the Wiffens in the immediate aftermath of the robbery, his cash payments of the accommodation costs, his conduct in fleeing the police, and the location of the gun matching the description of that used in the robbery, it cannot be said that the verdict was unreasonable. As submitted by Ms Markham for the Crown, to that may also be added the absence of any contrary evidence at trial as to Mr Manoharan’s whereabouts at the time of the robbery, and the source of his cash payments. While silence does not give rise to an inference of guilt, the natural inferences from a Crown case may be more readily accepted if not contradicted by the defendant or other evidence called by the defence.[8]
[73] We conclude that having regard to all the evidence the jury could reasonably have been satisfied beyond reasonable doubt that Mr Manoharan was guilty of the crime charged.
[74] We therefore reject this final ground of appeal.
Result
[75] We grant an extension of time to appeal.
[76] We dismiss the application to adduce fresh evidence from Mr Gorinski and Professor Jamieson.
[77] Having rejected all of the grounds of appeal, we dismiss the appeal against conviction.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
[2] Ponga v R [2014] NZCA 996 at [37]–[40].
[3] R v Manoharan DC Wellington CRI-2011-032-2216, 3 October 2012.
[4] Wallace v R [2010] NZCA 46 at [99]–[100].
[5] See discussion in R v Doheny [1996] EWCA Crim 728, (1997) 1 Cr App R 369 at 372–375 and Aytugrul v R [2010] NSWCCA 272 at [86] and [164]; upheld on appeal in Aytugrul v R [2012] HCA 15, (2012) 247 CLR 170 at [27].
[6] R v Gorinski DC Wellington CRI-2011-032-2155, 2 July 2012.
[7] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
[8] R v McCarthy [1992] 2 NZLR 550 (CA) at 554.
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