Thornton v R [2017] NZCA 256 (16 June 2017)

Last Updated: 21 June 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA643/2016 [2017] NZCA 256
BETWEEN	CORNELIA GEERTRUDA ADRIANA THORNTON Appellant
AND	THE QUEEN Respondent

Hearing:	23 May 2017
Court:	Asher, Venning and Ellis JJ
Counsel:	R J Stevens and K Hadaway for Appellant J E L Carruthers for Respondent
Judgment:	16 June 2017 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

[1] In November 2015 the complainant, following her choir practice, got into her car to drive home. After she had got into her car a person opened a rear door and climbed into the back seat, grabbed her by the hair and pulled her back violently, telling her to “shut up and drive”. The assailant put a hand around the complainant’s face and pulled her back into the gap between the front seats. The force used caused a cut to the complainant’s lip. The assailant looked the complainant in the eyes and asked her whether she wanted to “die now or later”. The complainant struggled and managed to break free. She got out of the front door and yelled for help and the police became involved.
[2] The police formed the view that the appellant Cornelia Thornton was the assailant and charged her with breach of a protection order, threatening to kill and attempted kidnapping. At the time of the incident the complainant was the partner of Ms Thornton’s former husband. After he and Ms Thornton separated the husband had moved in with the complainant in a house that she owned. There was then a history of Ms Thornton antagonising her former husband which led to a number of convictions. The former husband had obtained a protection order against Ms Thornton. The order was made permanent in January 2015, and the complainant was added as a protected person in April of that year, some seven months prior to the attempted kidnapping.
[3] In essence Ms Thornton’s defence at the trial was that the Crown had failed to prove that she was the assailant. After a trial in the District Court at Tauranga, Ms Thornton was found guilty by a jury and convicted. She was sentenced to two years and 10 and a half months’ imprisonment.^[1] She appeals against conviction.
[4] Mr Stevens, counsel for Ms Thornton, raises four alleged errors by the Judge.

Wrongful admission of propensity evidence

[5] Ms Thornton had seven prior convictions that were the subject of a propensity decision by Judge Mabey QC.^[2] Details of the seven incidents showing the date, the nature of the offence and the basic facts were summarised by the Judge in his decision and we set out that summary in an appendix to this judgment.^[3]
[6] The Crown sought to admit evidence of these prior convictions as establishing a propensity on the part of Ms Thornton to target the complainant and Ms Thornton’s former husband, and to be actively hostile towards them. The Crown also said that the convictions showed a tendency to breach protection orders.
[7] As we have said, the central issue in the trial was whether Ms Thornton was the assailant, or whether it was somebody else. It was not suggested that the complainant had made up her account of being attacked.
[8] Mr Stevens argued that the decision to allow the propensity evidence to be admitted was an error because the actions that were the subject of the previous convictions were directed against the former husband and not the complainant. Even though the complainant was ultimately a protected person to whom the protection order related, the charges that Ms Thornton was convicted of named the former husband as the person who had been offended against. Mr Stevens argued that the propensity evidence did not relate directly to actions against the complainant and had no relevance to the charges involving her.
[9] He also submitted that the propensity evidence did not show a tendency on the part of Ms Thornton to act in a particular way or to have a particular state of mind in relation to the complainant. He submitted that the previous offending was of nuisance value only, and was far less serious than the violent offending that gave rise to the present charges. There was a real risk of unfair prejudice in that the jury would reason that because Ms Thornton had offended on numerous occasions in the past against her former husband she must have been the person involved in the attempted kidnapping. He submitted that the consequence was to unfairly predispose the jury against Ms Thornton.
[10] We consider that the evidence that Ms Thornton had an extreme interest in her former husband and his living conditions, which would evince itself in unlawful behaviour, was highly relevant propensity evidence. Ms Thornton knew the complainant and indeed had written a letter to the complainant. The complainant was involved in some of the harassment incidents. Ms Thornton’s history of harassment of her former husband, and her proven pre-occupation with his new living circumstances with the complainant, made it more likely that it was Ms Thornton rather than some other random violent member of the public who climbed into the back seat and carried out the attempted kidnapping. Given Ms Thornton’s anger against her former husband, she had a reason to be angry and hostile to his new partner, the complainant. The evidence was highly probative for that reason.
[11] We reject Mr Stevens’ submission that the previous convictions only demonstrate a propensity to commit nuisance value offences against the former husband and therefore have no real probative value. Her conduct showed that she was prepared to forcefully try and enter premises where the complainant and her former husband lived, and to act violently, slashing fabric with a knife, throwing rubbish over a fence and generally acting in defiance of what is regarded as normal conduct. She had not previously assaulted her former husband, or the complainant. But she had entered premises without permission and appeared to stalk her former husband at the complainant’s home. This tendency to be obsessive about her former husband to the extent of acting unlawfully and with force made her more likely than an ordinary member of the public to be the assailant.
[12] Thus, this evidence was highly relevant. As Judge Mabey said in his decision:^[4]

If the defendant is motivated to harm, cause damage to or annoy her exhusband one way of achieving that would be to attack his current partner.

Separately it could be said that the fact that [the complainant] is now in a relationship with the defendant’s ex-husband, to whom she carries ill-will and animus, that ill-will and animus is transferred to [the complainant].

[13] The evidence of her prior actions is highly prejudicial to Ms Thornton, but this is legitimate prejudice. It would have been entirely artificial to have conducted the trial while excluding the evidence of Ms Thornton’s history of anger and hostility to her former husband, and her knowledge of the complainant’s relationship with him.
[14] The probative value of the evidence outweighed any risk of an unfairly prejudicial effect on Ms Thornton. The evidence was clearly admissible under s 43 of the Evidence Act 2006. This ground of appeal fails.

Statement to the sergeant

[15] On the night of the attempted kidnapping, Sergeant Allison, who had prior contact with Ms Thornton over her conduct towards the former husband, was informed of the alleged offending by a police radio communication. He was also told that it was possible Ms Thornton had been involved. He went to Ms Thornton’s address to check whether she was home. He knocked on the front door and Ms Thornton answered, dressed in a nightgown. It was 9.55 pm. The officer gave evidence that he introduced himself. He began to explain why he was there when Ms Thornton said, spontaneously and without any question, that she had been at home since 5.30 pm. Satisfied with that explanation Sergeant Allison left. When he returned to his vehicle he made a note in his notebook of what Ms Thornton had said. He did not ask her to read or sign the note either at that point, or later in the evening when he saw her again.
[16] Ms Thornton gave a different account of what happened. She said that when the sergeant came to her door she told him that she was no longer subject to a curfew. The sergeant said he did not wish to speak to her about that and asked whether she knew the complainant. She said that she did not know the complainant personally, and that is where the conversation ended. She denied saying that she had been home since 5.30 pm.
[17] Mr Stevens challenged the admissibility of her comment on the grounds that it had been obtained in breach of the Chief Justice’s Practice Note on Police Questioning.^[5] It was argued that the sergeant should have cautioned Ms Thornton before she spoke as required by r 2 of the Practice Note, because he had good cause to suspect that she had offended against the complainant. It was submitted that he should have also given her the opportunity to read and dispute the note as required by r 5.
[18] Rule 2 of the Practice Note reads in part:

Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions.

[19] Judge Mabey found that at the time when he went to Ms Thornton’s front door Sergeant Allison did not have, on an objective assessment, “good cause to suspect” that Ms Thornton was the assailant “such that a caution should have been administered”.^[6] The sergeant was satisfied with Ms Thornton’s explanation and left at that point. Because the sergeant did not have good cause to suspect, the Judge found there was no breach of the obligation to give a warning in accordance with the New Zealand Bill of Rights Act 1990 as the Practice Note did not apply. We agree with this assessment.
[20] We accept Judge Mabey’s decision that the sergeant did not have good cause to suspect when he went to Ms Thornton’s home; to put it in the words of r 2, he did not have sufficient evidence to charge her. The investigation at this stage was entirely preliminary and the sergeant was trying to eliminate possibilities. Plainly, on the strength of one nondefinitive telephone call from another officer, he did not have sufficient evidence to charge Ms Thornton. That is why he accepted Ms Thornton’s explanation immediately and left. The Judge as a matter of fact found the sergeant’s evidence credible. He was satisfied with the sergeant’s explanation as to why he went to the door without any intention of arresting Ms Thornton, and why, at a later time that evening when he did have further information, he returned to arrest her. We see no error in the Judge’s assessment.
[21] The Judge did however find there to have been a technical breach of r 5 of the Practice Note. That rule reads:

Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording, unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

[22] For the same reason we do not consider that r 2 of the Practice Note applies, we reject the argument based on a breach of r 5. Rule 5 applies where a person is in custody or “in respect of whom there is sufficient evidence to charge”. We have concluded that there was not sufficient evidence to charge Ms Thornton when the sergeant recorded her initial statement. From the sergeant’s perspective, at that stage he was acting on a phone call and an un-checked suspicion. In this respect we disagree with Judge Mabey’s conclusion that there was a technical breach of r 5 of the Practice Note.
[23] The Judge expressed his view that if the evidence was unfairly obtained, it should not be excluded under s 30 of the Evidence Act. We consider that if there was to be a s 30 balancing assessment, the Judge was correct. The evidence was relevant and did not necessarily damage Ms Thornton’s case. It put her in a place other than the scene of the alleged assault if it was true. If it was not true it was probative of a lack of credibility on her part, and legitimately so. In any event the failure of the sergeant to give Ms Thornton an opportunity to read his record was significantly mitigated by the brevity of the interaction and the fact that the officer at the time did not appear to doubt what Ms Thornton had told him. If there was a breach it was minor. However, this is not part of our reasoning in this appeal, as we have found that the evidence was not unfairly obtained.
[24] This second ground of appeal does not succeed.

Identification evidence

[25] Although Mr Stevens did not develop this in his oral submissions, he argued that there was not “good reason” for not following a formal identification procedure as required by s 45 of the Evidence Act. He argued that the Judge erred in finding that this was a case of recognition where the appearance of the assailant was known to the complainant. Mr Stevens presented detailed written submissions about the limited prior occasions when the complainant had seen Ms Thornton.
[26] We are left unpersuaded by these arguments. The complainant had seen Ms Thornton a number of times over several years. On the first occasion she met Ms Thornton, Ms Thornton was wearing a hood but the complainant was able to see her face as they were standing close to one another. The complainant was in Ms Thornton’s presence for approximately two minutes. The circumstances of the meeting were unusual. Ms Thornton, who was unknown to the complainant at that time, approached the complainant’s home and said that she was looking for a friend. The complainant had a clear view of Ms Thornton’s face and had every reason to remember it given the unusual circumstances.
[27] The complainant on another occasion observed Ms Thornton on CCTV from within her house. Ms Thornton came within three metres of the camera at one point. The complainant would have had good reason to take note of Ms Thornton’s face, given that Ms Thornton had scaled the fence and was lurking in her garden. Although she was again wearing a hood, this was a second view. On another occasion the complainant had driven past Ms Thornton while she was in a convertible car with the top down and saw her face. Later there was a second passing of cars where the complainant said that she got within one and a half metres of Ms Thornton. Finally, when the incident took place, the complainant had a close view of Ms Thornton’s face as her head was pulled backwards and they made eye contact.
[28] We are satisfied there was good reason for not following the identification procedure required by s 45 of the Evidence Act. If the complainant had been asked to identify Ms Thornton from a photo montage, any result would have been valueless because the complainant had already concluded that Ms Thornton’s appearance was familiar to her and that she was the attacker. The complainant would have been certain to identify her because of that opinion, and the evidence could have been prejudicial to Ms Thornton. The Judge’s decision on this was clearly correct. We also reject a suggestion that there was some issue about the complainant not wearing her glasses and being short-sighted. There was no evidence of whether the complainant was or was not wearing her glasses at the relevant times.
[29] This ground of appeal fails.

The summing-up

[30] Mr Stevens submitted that the Judge’s summing-up lacked balance and failed to properly put the defence case in a number of material respects. He raised a considerable number of particular points, none of which we consider have any merit. We do not propose going through all these points, but we pick three.
[31] Mr Stevens argued that the Judge did not adequately address Ms Thornton’s evidence in his summing-up. We do not accept this. The Judge referred to the fact that Ms Thornton had given evidence when giving the jury the tripartite direction. He reminded the jury at other points about what she had said on particular issues. He did not give a narrative of Ms Thornton’s evidence, but in the circumstances that was what could have been expected. That narrative had been given already by Ms Thornton and much of it had been picked up in Mr Steven’s closing address. Indeed Mr Steven’s closing address was primarily concerned with picking apart the various threads of the Crown case. We accept the Crown’s submission that the Judge’s summing-up mirrored that approach.

[32] Mr Stevens also argued that the Judge dealt with the defence response to the evidence of Sergeant Allison in a cursory and inadequate manner. In particular he argued that the Judge should have specifically addressed Ms Thornton’s evidence that, contrary to the evidence of the sergeant, she did not tell him that she had been home since 5.30 pm when he visited her home following the attempted kidnapping. We disagree. This point had been canvassed extensively by Mr Stevens during closing and the jury would have been well-aware of it. Moreover, the Judge did in fact draw the jury’s attention to Ms Thornton’s evidence on this point, noting that she stated in her evidence that the sergeant’s record of her statement was wrong. The Judge told the jury that it would be for them to resolve that conflict.

[33] Mr Stevens also argued that the Judge’s summing-up regarding prior inconsistent statements undermined the defence case, which relied heavily on inconsistencies in the complainant’s evidence when inviting the jury to conclude that her evidence could not be accepted or relied upon. The Judge said:

[68] I need to tell you that when there is a criticism of people’s consistency as between what they might say on one occasion and on another, that is relevant when you determine issues of credibility and reliability. If someone had said something on one occasion and then says it differently on another and it is established that there have been those differences then you can take that into account in deciding whether you will accept or reject the evidence that is heard in Court. You give it whatever weight you will, but if you conclude that the criticisms of inconsistency and variations in stories are explicable, understandable in terms of human memory or the effluxion of time, then you may well come to the conclusion that they do not assist you a lot on the key points.

[34] We do not consider that this statement in any way undermined the defence case. The suggestion that the inconsistencies may be explicable by human memory or the effluxion of time is prefaced by a clear direction that the jury may attribute whatever weight to the inconsistencies that they see fit. In addition, shortly after that statement, the Judge reiterated in general terms the defence case that the complainant’s varied descriptions cast doubt on her credibility and reliability:

[70] Mr Stevens said to you that the complainant’s description of what happened in the car as between her statement and in Court cannot be reconciled. He said they are so different that that is a real key to the complainant’s credibility and reliability and he made other criticisms of her evidence ...

[35] A Judge is not obliged to recite every submission made by defence counsel.^[7] The Judge properly advised the jury that they were the sole arbiters of fact and must ignore any view he might appear to indicate. He gave reasonably thorough summaries of the Crown and defence cases, each of which spanned several pages of the transcript. He would make brief reminders when covering one argument about what the other party’s argument was. On an overview we can see no signs of imbalance. In our view the summing-up was sound in law and balanced in its assessment and presentation of the respective arguments. This ground of appeal fails.
[36] We also note that many of the concerns raised by Mr Stevens about the summing-up on appeal were put to the Judge by Mr Stevens immediately following the summing-up. The Judge did not accept Mr Stevens’ objections to the summingup. For the reasons given above we consider that he was right to do so.

Result

[37] The grounds of appeal have not been made out, indeed none of them had any significant merit.
[38] The appeal against conviction is dismissed.

Solicitors:
Public Defence Service, Tauranga for Appellant
Crown Law Office, Wellington for Respondent

APPENDIX

Date	Offence/incident	Summary
30 October 2013	Breach of protection order	On 12 September 2014 a temporary protection order was issued against the defendant in favour of her ex-husband. On 30 October 2014 the ex-husband was in the car when the defendant approached him, attempted to open a front door, before demanding to be let in and pulling forcefully on a partially open window and roof racks. The defendant left when the ex-husband advised her he was calling the police.
16 November 2014	Wilful damage	The defendant went to her ex-husband’s home. Finding nobody she walked through an unlocked gate and set about slashing the fabric on a set of outdoor furniture with a Stanley knife she had brought with her. The defendant also overturned and smashed two pot plants.
11 December 2014	Breach of protection order	The defendant returned to her ex-husband’s address. Her ex-husband was not home but the complainant was at the address. The defendant climbed a fence and entered the yard. She then spent several minutes walking around the address looking in windows, at one point using an outdoor chair to assist in looking into high windows. This incident was filmed in CCTV.
10 March 2015	Breach of protection order	On 27 January 2015 a final protection order was issued against the defendant in favour of the ex-husband. Between 10 March 2015 and 29 March 2015 the defendant made a total of 320 calls to her ex-husband’s mobile.
29 March 2015	Search of defendant’s vehicle	On 29 March 2015 police executed a search warrant at the defendant’s home. During that search the defendant’s car, parked at the entrance to her garage was searched. Under the driver’s sun visor a yellow piece of paper was found. On that paper was written the registration details, and make and model of the defendant’s ex-husband’s vehicle. Recorded on the same piece of paper was the complainant’s registration number. Located in the boot of the vehicle amongst other items was a kitchen knife, a Stanley knife, a sharpened steel shank, disposable gloves, duct tape, a black wig and five copies of two letters typed out on A4 paper purporting to be written by the defendant’s ex-husband. In those letters the ex-husband appears to accept responsibility for the failures in the relationship, with one appearing to be a suicide letter.
15 May 2015	Breach of protection order	On 29 April 2015 the complainant had been added to the defendant’s ex-husband’s protection order against the defendant. On 14 May 2015 the defendant returned to her ex-husband’s address. She rang the visitor’s bell before throwing a large amount of household rubbish over the fence and onto the driveway. Early the next morning the defendant returned to the address and did the same thing. Both incidents were caught on CCTV.
21 May 2015	Breach of protection order	The defendant returned to the address of her ex-husband and the complainant. At the time the address was under police observation. The defendant was quickly arrested as she stood at the fence line of the property. On her person was found a torch, a pair of disposable gloves, and a bag of rubbish. The defendant was dressed in black and wearing a hat and hooded sweatshirt with the hood up. The complainant and the defendant’s ex-husband were at home at the time.

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^[1] R v Thornton [2016] NZDC 25626.

^[2] R v Thornton [2016] NZDC 20203.

^[3] At [4].

^[4] At [30]–[31].

^[5] Practice Note — Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

^[6] R v Thornton [2016] NZDC 21217 at [31].

^[7] Rangihuna v R [2010] NZCA 540 at [23].