Knight v R [2018] NZCA 350 (6 September 2018)

Last Updated: 10 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA18/2017 [2018] NZCA 350

	BETWEEN	ALASTAIR SCOTT KNIGHT Appellant
	AND	THE QUEEN Respondent

Hearing:	16 August 2018
Court:	Kós P, French and Miller JJ
Counsel:	C M Ruane for Appellant R K Thomson and M J Lillico for Respondent
Judgment:	6 September 2018 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Knight was convicted at trial of burglary and receiving charges.^[1]
[2] He now appeals some of the convictions on the grounds that propensity evidence was wrongly admitted and that the jury’s verdicts were unreasonable being almost entirely based, as he says they must have been, on the unreliable evidence of a co-offender.

Background

[3] Mr Knight stood trial on 12 charges relating to a spate of burglaries in the Christchurch area. His partner Ms Blackburn, who was also charged as a co-offender, is the focus of this appeal.
[4] The charges and the trial outcomes can be summarised in table form as follows.

Charge	Offence	Particulars	Outcome	Appeal status	Outcome for Ms Blackburn
1	Receiving over $1,000	Chainsaw	Discharged at close of Crown case
2	Burglary	2 March 2015, Derby Street	Guilty	Appealed	Pleaded to burglary
3	Receiving $500 or less	Lawn mower	Guilty	Not appealed
4	Burglary	23 March 2015, Brigham Drive	Guilty	Appealed	Pleaded to burglary
5	Possession of instruments for burglary	27 March 2015	Guilty	Appealed	Pleaded to possession of instruments
6	Possession of methamphetamine pipe	27 March 2015	Not Guilty
7	Receiving over $1,000	Trumpet stolen from Mistral Street	Discharged at close of Crown case		Pleaded to receiving trumpet
8	Burglary	28 April 2015, Old West Coast Road	Guilty	Appealed	Pleaded to burglary
9	Burglary	29 April 2015, Finlays Road	Guilty	Appealed	Pleaded guilty to burglary

10	Burglary	30 April 2015, Lower Styx Road	Guilty	Appealed	Pleaded to receiving
11	Burglary	4 May 2015, Old West Coast Road	Guilty	Not appealed	Pleaded to burglary
12	Possession of instruments for burglary	4 May 2015	Not Guilty		Pleaded to burglary

[5] As noted in the table Mr Knight does not appeal charge 11. Mr Knight and Ms Blackburn were observed entering the property which was the subject of that burglary and arrested at a petrol station immediately afterwards.
[6] The charges which are the subject of the appeal are burglary charges two, four, eight, nine and 10 and the charge of possession of burglary instruments.

The evidence of Ms Blackburn

[7] Ms Blackburn pleaded guilty and made two statements to police. In those statements she said relevantly that she and Mr Knight had burgled the Brigham Drive property (charge four) and that Mr Knight had burgled the properties that were the subject of charges eight, nine, and 10 without her.^[2]
[8] Ms Blackburn received a discounted sentence for cooperating with the police and her stated willingness to give evidence against Mr Knight. She was liable to be disadvantageously resentenced if she did not give evidence in accordance with her statements.
[9] At trial, the Crown called Ms Blackburn as a witness. Contrary to the statements she made to police, the thrust of her evidence was Mr Knight had not burgled any of the properties and was at most a receiver. The Judge granted an application for Ms Blackburn to be declared hostile. When her previous statements were put to her, she claimed they were untrue and refused to answer further questions.
[10] Her statements were then put into evidence.
[11] On appeal, Mr Ruane submits on behalf of Mr Knight that apart from Ms Blackburn’s statements, the only other evidence linking Mr Knight to the burglaries was his possession of items stolen from the burglaries. That meant that in order to find him guilty of burglary — as distinct from receiving — the jury needed to be sure Ms Blackburn’s statements to the police were true. And that, in Mr Ruane’s submission, was not something a reasonable jury could do having regard to the direct contradiction between the statements and her testimony and other evidence pointing to her being involved in all the burglaries. The evidence of Ms Blackburn was, he argued, so unreliable, no jury no matter how well directed could properly rely on it.
[12] We do not accept those submissions.
[13] As Mr Ruane acknowledged, both Ms Blackburn’s evidence at trial and her police statements were admissible and properly before the jury. As Mr Ruane also acknowledged, the trial Judge, Judge Neave, gave a strong direction about the need for the jury to exercise caution when considering Ms Blackburn’s evidence. Ultimately however it was for the jury to decide which (if any) of her versions of events to accept and what weight to attach to each item of evidence.
[14] Further, in addition to Ms Blackburn’s statements, there was the following evidence (excluding, at this juncture, the impugned propensity evidence).
[15] In relation to charge two, a neighbour saw someone, whose appearance was consistent with Mr Knight’s appearance, sitting in a car which Mr Knight himself told police only he drove. Forty five minutes after the burglary, Mr Knight was pawning property stolen from the burgled property, it being contended this was too short a time frame for him to have received the items from the burglary.
[16] In relation to charge four, a neighbour saw a man and a woman walking out of the burgled property carrying an orange bag. Although Mr Knight has grey hair and the neighbour described the man she saw as having dark hair, her description of the car was consistent with a vehicle driven by Mr Knight. His vehicle matching the description was located and an orange bag located inside it. Again, Mr Knight pawned property stolen from the burglary within a relatively short time frame of the burglary taking place.
[17] As regards charge eight, in addition to Ms Blackburn’s statements, there was evidence given by an associate that three days prior to the burglary, he had loaned a car to Mr Knight and Ms Blackburn in which property stolen from the burglary was subsequently found.
[18] In relation to charge nine, an associate gave evidence that he took Mr Knight and Ms Blackburn to the area in question and saw Mr Knight entering a house and returning holding something which by implication he was not holding when he entered. Mr Knight was wearing a jacket taken from the property when he was arrested, and other items taken were also found in his car.
[19] Charge 10 was a burglary that occurred on 30 April 2015. There was evidence that the very next morning, Mr Knight was present when Ms Blackburn gave an associate a jeweller’s docket to redeem at a local store. The householder had put some rings in for resizing and been given a docket which she had placed in the pocket of jeans taken by the burglar. Later the same day, other property taken from the burglary was found in a vehicle which had been loaned to Mr Knight.
[20] Finally, as regards the charge of possession of burglary instruments, there was evidence that when police arrested Mr Knight on 27 March 2015 at a pawn shop, they searched his vehicle and found a broken handled screwdriver, crow bar and gloves. As submitted by Ms Thomson for the Crown, given the jury’s verdicts on the burglary charges, their verdict on whether he was in possession of these items and what he intended to do with them would not have been a difficult one to reach.
[21] We conclude the jury was entitled to rely on the evidence of Ms Blackburn and that having regard to all the evidence, the jury could be satisfied to the requisite standard that Mr Knight was guilty in respect of the charges at issue.
[22] We turn now to the propensity evidence.

Propensity evidence

The trial

[23] The issue about propensity only arises in relation to the four burglaries committed last in time, that is on 28 April, 29 April, 30 April and 4 May 2015 being charges eight to 11. There had been no application for severance.
[24] The prosecutor submitted to the jury that the similarities between the four burglaries suggested they were the handiwork of the same person. She emphasised the strength of the evidence in relation to charge 11 (police officer observed Mr Knight entering the property) and invited the jury, once it had found Mr Knight guilty of that burglary, to add it to the case against him in respect of the other charges.
[25] The jury handout helpfully summarised the Crown case against Mr Knight in respect of each charge, using boxes for each.
[26] In his summing up, the Judge directed the jury to consider each charge separately as if 10 different trials were being undertaken and that only evidence in the box for one charge could be used in relation to that charge. He then went on to say that on the Crown’s case there was an exception in so far as the last four charges were concerned. He explained the Crown was contending that similarities between the burglaries suggested there was one hand at work or one group of hands at work. The Judge further explained the Crown was arguing that once the jury was satisfied beyond reasonable doubt one or more of the burglaries was sheeted home to Mr Knight, that was a circumstance the jury could use to determine whether the other charges were proven.
[27] The Judge identified the similarities relied upon by the Crown between the four burglaries as being:

• all the properties were lifestyle blocks;
• the mode of entry was the same — use of a jemmy to force a window or door;
• they all occurred in daylight;
• two had alarms which did not deter;
• similar items were taken;
• all ransacked in similar fashion;
• three properties were close to Mr Knight’s residence; and
• shortly after each burglary, property taken was found in Mr Knight’s possession.

[28] The Judge stressed it was for the jury to decide whether there were sufficient similarities and he outlined the competing contentions on that issue. He told them that if they were not satisfied there were sufficient similarities, then they must put that factor to one side and not put it into the box. He also emphasised that even if the jury was satisfied there were sufficient similarities, it was not determinative but only one item of evidence to be added to the mix. Finally, he cautioned the jury in very strong terms against reasoning processes which carried the risk of unfair prejudice.

On appeal

[29] On appeal, Mr Ruane accepted the direction was a conventional propensity direction and in one respect more favourable to the defence than it needed to have been.^[3] However, he submitted the jury should not have been invited to even consider propensity reasoning in the first place. In his submission, correctly analysed under s 43 of the Evidence Act 2006, the evidence was not admissible for that purpose.
[30] Mr Ruane’s argument was first that the factors relied upon are common to all or most burglaries and therefore could not be probative of the identity of the burglar. That would have required some unusual modus operandi evident in all four burglaries. He argued that reduced to its elements the Crown’s argument was essentially “these are domestic burglaries, the defendant clearly burgled one house, therefore he must have burgled the others”. And that, Mr Ruane contended, was impermissible reasoning.
[31] When it was put to him that the close proximity in time of the burglaries and the fact that spree burglaries are a common phenomenon meant the evidence was capable of bearing on identity, Mr Ruane accepted this might be so but contended that on the evidence the only common thread was Ms Blackburn, not Mr Knight.
[32] However, in our view that was for the jury to decide.
[33] In the absence of severance, all four charges were properly before the jury and, in our view, were cross-admissible as evidence in relation to each other. The Judge’s direction was thorough and appropriate.
[34] We are satisfied this ground of appeal also lacks merit and the appeal is accordingly dismissed.

Result

[35] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] He was sentenced to four years six months’ imprisonment: R v Knight [2016] NZDC 25871.

^[2] Ms Blackburn accepted that she was present for some of these other burglaries but denied entering the houses.

^[3] It is well established that as a strand supporting a circumstantial case, propensity evidence need not be proven beyond reasonable doubt before it may be used by the jury: R v Gan [2016] NZCA 354 at [19].