Gorrie v R [2021] NZCA 73 (18 March 2021)

Last Updated: 23 March 2021

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

CA426/2020 [2021] NZCA 73

	BETWEEN	TONY ASHLEY GORRIE Appellant
	AND	THE QUEEN Respondent

Court:	Cooper, Wylie and Katz JJ
Counsel:	R M Lithgow QC for Appellant M R L Davie for Respondent
Judgment: (On the papers)	18 March 2021 at 3 pm

JUDGMENT OF THE COURT

The application for leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

• [1] The applicant, Tony Gorrie, has applied for leave to bring a second appeal against conviction and sentence. Following a judge-alone trial in the District Court, he was found guilty of 17 charges.^[1] He pleaded guilty to an additional five charges.
• [2] The charges on which he was found guilty at the trial comprised five charges of burglary; three each of unlawfully taking a motor vehicle, theft and dishonestly using a document; and single charges of failing to stop, reckless driving and driving while disqualified. The guilty pleas were entered during the trial on charges of dishonestly using a document.
• [3] Mr Gorrie represented himself at his trial in the District Court and at the sentencing which followed his convictions. Judge Callaghan, who presided at the trial, sentenced him to an effective term of six years and two months’ imprisonment.^[2]
• [4] Mr Gorrie appealed to the High Court. Mander J allowed his appeal against conviction on two of the theft charges.^[3] He quashed those convictions, substituting in each case convictions for receiving, those being offences which the trial Judge could have substituted for the original charges and entered convictions on the basis of the evidence in the District Court. The High Court also allowed Mr Gorrie’s appeal against conviction on the charge of driving while disqualified and quashed his conviction on that charge.^[4] The conviction appeal was dismissed in respect of all the other charges. The sentence appeal was also dismissed.
• [5] Mr Gorrie has sought leave to appeal to this Court against both his conviction and sentence. In accordance with the determination of Goddard J the application for leave has been dealt with separately from the proposed appeal, and on the papers.

Background

• [6] The offending which gave rise to the charges against Mr Gorrie occurred at various locations in the South Island in the period from 26 July and 8 October 2018. It began when he took a red Honda motor vehicle worth approximately $2,000 from a car dealership in Invercargill. Mr Gorrie had found the keys in the ignition of the vehicle and driven it away. Police located the vehicle on 31 August at Arrowtown. Mr Gorrie was charged with the unlawful taking of a motor vehicle.
• [7] It was also alleged that in August 2018, Mr Gorrie stole a Jucy rental campervan which had been parked outside a holiday park in Franz Josef. The victims were holidaying in New Zealand having travelled from South Korea. They went into a restaurant leaving the vehicle unlocked. The police case was that after taking the campervan, Mr Gorrie parked at a short distance away and took clothing, cash, wallets, credit cards and bags from the victims. The items were valued at approximately $6,800. When the police searched the red Honda motor vehicle which Mr Gorrie had taken in Invercargill, they recovered the victims’ property (excluding the cash), a Schweppes bottle, and a balaclava. Mr Gorrie’s DNA was discovered on the bottle and the balaclava: the ESR reported that the DNA was 700,000 million times more likely to have come from Mr Gorrie than any other person. Mr Gorrie was again charged with the unlawful taking of a motor vehicle and theft.
• [8] In the following weeks Mr Gorrie entered backpackers’ premises in Nelson, Greymouth, Picton, and Kaikoura. The police alleged that on the morning of 6 September 2018 Mr Gorrie entered the room of a tourist staying at premises in Nelson, taking a car key. He then stole a Nissan motor vehicle, which was parked outside. Mr Gorrie was subsequently charged with the unlawful taking of a motor vehicle and burglary. Then, on 23 September, Mr Gorrie entered the room of a complainant staying at a backpackers’ premises in Greymouth, taking $45. CCTV footage showed a man matching Mr Gorrie’s description entering and leaving the building. This gave rise to a charge of burglary.
• [9] On either 1 or 2 October, Mr Gorrie entered a backpackers’ premises in Picton where he stole a wallet containing cash and a MasterCard. On 2 October he was captured by CCTV footage at a nearby service station trying to purchase goods with the MasterCard. He was charged with burglary and faced two further charges of dishonestly using a document. He was convicted of the burglary. He entered guilty pleas to the other two charges.
• [10] On 3 October 2018, he entered a backpackers’ premises at Kaikoura. There he stole a credit card from the purse of a woman staying there, subsequently using it on four separate occasions. This gave rise to charges of burglary and dishonestly using a document. He was convicted of the first offence. He pleaded guilty to the second charge.
• [11] Subsequent offending occurred in Wanaka, Queenstown and Lake Moeraki. Mr Gorrie entered a car dealership in Wanaka stealing two number plates. These were later located by the police in the Nissan motor vehicle he had stolen previously. As a result Mr Gorrie faced two charges of theft. He was convicted on both and did not appeal.
• [12] Between 6 and 7 October 2018, Mr Gorrie also entered the room of three complainants at a backpackers’ premises in Wanaka, stealing credit cards, cash and a wallet. He then purchased goods using the stolen credit cards on 7 October 2018. This offending gave rise to a charge of burglary (charge 14) and three charges of using a document, referred to in the record as charges 15 to 17, which we will refer to again below. On the same day, Mr Gorrie made two further purchases with one of the stolen credit cards, giving rise to two charges of using a document, to which he entered guilty pleas.
• [13] On 8 October, the police observed a vehicle exceeding the speed limit on State Highway 6 near Lake Moeraki. It was the stolen Nissan motor vehicle, driven by Mr Gorrie. The police activated red and blue flashing lights and the siren. When Mr Gorrie failed to stop they gave chase. As the result of subsequent events Mr Gorrie was charged with reckless driving, as well as failing to stop and driving while disqualified. He was subsequently arrested. He was convicted on all three charges. When they recovered the Nissan motor vehicle the police also located the number plates which Mr Gorrie had stolen. His fingerprints were found on one of them.

Proceedings in the District Court

• [14] Prior to the trial, Judge Kellar ruled that evidence concerning six previous incidents in which Mr Gorrie had been convicted of dishonesty offences against members of the travelling public was admissible as propensity evidence.^[5] The Crown submitted that the evidence indicated Mr Gorrie had a propensity to target backpacker accommodation and steal from tourists. The Judge considered the evidence was admissible under s 43 of the Evidence Act 2006. The Crown and Mr Gorrie (representing himself) agreed that the propensity evidence could be put before the Court in the form of an agreed memorandum pursuant to s 9 of the Evidence Act.
• [15] On 2 October 2019, Judge Callaghan, who was subsequently to be the trial Judge, granted a further application by the Crown.^[6] This was to admit an unsigned “Vehicle Crime Report” that had been provided by the complainant associated with the Nissan motor vehicle, as hearsay evidence. By this stage, the complainant had left New Zealand and could not be contacted by police. The Judge ruled that he was unavailable as a witness, and that the circumstances relating to the making of the statement provided reasonable assurance that it was reliable.^[7]
• [16] The trial took place in the District Court between 7 and 9 October 2019. During the trial, Mr Gorrie pleaded guilty to five of the charges. On the balance, Judge Callaghan found him guilty. The Judge rejected Mr Gorrie’s evidence that he was not the person responsible for the offending. He considered Mr Gorrie was not a credible witness, stating that he rejected his evidence “almost in its entirety”.^[8]
• [17] As noted earlier, the Judge sentenced Mr Gorrie to an effective term of six years and two months’ imprisonment. He also imposed a minimum period of imprisonment of three years and six months.^[9] Mr Gorrie was disqualified on the driving offending for a period of 18 months.^[10]

Conviction

The High Court appeal

• [18] Mr Gorrie appealed against both conviction and sentence. We deal with the proposed sentence appeal later. He was represented by counsel at the hearing of the appeal. He argued that the Vehicle Crime Report and parts of the propensity evidence should not have been admitted. Counsel submitted that the District Court Judge had not adequately directed himself concerning lies and identification evidence and claimed that the evidence against Mr Gorrie was insufficient to convict him.
• [19] These arguments were largely rejected by Mander J.^[11] We have already summarised above the effect of the High Court judgment. On the issue of the admissibility of the hearsay statement the Judge expressed the view that Judge Callaghan had not erred in his assessment that the circumstances relating to the statement provided reasonable assurance of its reliability. The statement had been taken in the formal setting of a police station by a constable acting in the normal course of her duties. It recorded details concerning the circumstances in which the car and the items had gone missing and it concerned matters entirely within the expected knowledge of the complainant.^[12]
• [20] Mr Gorrie’s key objection was unfair prejudice because of lack of opportunity to cross-examine the complainant. Mander J noted that this was not a point taken at the pre-trial hearing in the District Court. It was only at the trial that Mr Gorrie had advanced the claim that he had purchased the vehicle from the complainant.^[13]
• [21] Mander J noted that Mr Gorrie had been free to put forward his explanation for how he came into possession of the vehicle, and was able to do so in the knowledge that the complainant was unavailable to respond.^[14] The admission of the hearsay statement had not prevented Mr Gorrie from mounting an effective defence to those charges to which the statement related, given that the defence was based on a claim that Mr Gorrie himself advanced.^[15] And the probative value of the statement was not outweighed by the risk of it having an unfair prejudicial effect on the proceeding.^[16]
• [22] In the event, the trial Judge was left in a position of having to weigh Mr Gorrie’s claim in the context of the overall evidence given about Mr Gorrie’s conduct, and the propensity evidence. The Judge had found Mr Gorrie to be an evasive and vague witness; his evidence was implausible, and his explanations were put to one side.^[17] This aspect of the appeal was therefore rejected.
• [23] Mander J also rejected a challenge to the admission of the propensity evidence. He considered Judge Kellar had been correct to conclude that the previous convictions and the details of that offending was propensity evidence; it established a pattern that was relatively frequent and close in time to the present allegations, demonstrating “a tendency on the part of Mr Gorrie to target backpackers accommodation and steal property from tourists”.^[18] This feature of the prior offending was “of itself sufficiently unusual and similar to be probative of a propensity on Mr Gorrie’s part to offend in a particular way”.^[19]
• [24] But the real challenge to the admission of the propensity evidence was not on the finding that the prior offending qualified as propensity evidence. Rather, it concerned the manner in which the respective summaries of facts relating to the previous offending had been established. This was by way of a memorandum of admitted facts which Mr Gorrie signed and was submitted at the trial as a memorandum under s 9 of the Evidence Act.^[20] Mander J considered the memorandum was “unhelpfully worded” because it began by stating “the following evidence has been ruled admissible as propensity evidence” when Mr Gorrie had not in fact admitted the summaries of facts in respect of a number of the charges to which he had pleaded not guilty.^[21] However, Mander J considered that it could not realistically be contended that Mr Gorrie had not understood the purpose for which the information was being put before the Court and he had been under no obligation to sign the statement of admitted facts.^[22] Mr Gorrie was in any event precluded as a matter of law from disputing the propensity offending, and had accepted under cross-examination that he had on many previous occasions targeted backpackers’ accommodation and had a propensity to do so.^[23] Further, the charging documents relating to the propensity offending were sufficient to establish the relevant propensity in respect of the current charges, and in the circumstances there had been no miscarriage of justice as a result of the statement of admitted facts.^[24]
• [25] Mander J also rejected the allegations that the trial Judge had misdirected himself in relation to lies and identification evidence.^[25] It is not necessary to go into detail about that aspect of the High Court judgment because it is not pursued further in this court.
• [26] Mander J dealt in some detail with the arguments challenging the sufficiency of the evidence relied on to find Mr Gorrie guilty in respect of a number of the charges. In each case, he rejected the challenge presented on the basis of an analysis of the facts adduced by the prosecution at the trial, save for those charges in respect of which the appeal against conviction was allowed.
• [27] Consequently, the conviction appeal was dismissed, save to the extent it was allowed as we set out at [4] above.

The application for leave

• [28] Under s 237(2) of the Criminal Procedure Act 2011 this Court must not grant leave for a second appeal unless the proposed appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
• [29] It is not contended here that the proposed appeal raises a matter of general or public importance. However, Mr Lithgow QC submitted there is a risk that a miscarriage of justice occurred. In his written submissions he repeated the arguments made in the High Court that there was insufficient evidence on which the District Court Judge could have found Mr Gorrie guilty of certain of the charges. He conceded that in the case of some charges an appeal would be untenable, either because Mr Gorrie pleaded guilty or because there was in fact sufficient evidence on which to convict. However, leave is sought to bring a second appeal in relation to the remaining charges, in respect of which it is said that there was insufficient evidence on which the Judge could properly have convicted or, in some cases, that he relied on propensity reasoning to an impermissible extent. This is a difficult basis on which to advance a second appeal, particularly in a case where the intended appellant has given evidence and has been the subject of strongly adverse credibility findings.
• [30] Two “[g]eneral [i]ssues” were raised by Mr Lithgow relating to propensity reasoning. The first concerned the detailed propensity evidence outlined in the memorandum of admitted facts signed by Mr Gorrie. Mr Lithgow submitted the detail of the propensity offending should not have been admitted, and all that was properly before the Court was the fact of the previous convictions.
• [31] Leaving to one side the fact that Mr Gorrie signed the notice, the relevant propensity would have been established if the material had been limited in the manner now suggested. As Mander J pointed out, the Crown would have been entitled to rely on the charging documents relating to the prior offending which would have established entry into backpackers’ premises without authority with intent to commit imprisonable offences on four occasions between May 2011 and March 2014, together with offending involving the dishonest use of credit cards. We agree with the Judge’s conclusion that if the propensity offending had been limited to these details the evidence would still have been capable of demonstrating a pattern of offending involving the burglary of backpackers’ premises at times reasonably proximate to the current charges. We do not consider any miscarriage arose from the memorandum of admitted facts in the context of a judge-alone trial.
• [32] The second general issue raised concerning propensity is expressed as being specific to charge 2, though we note references are also made to other charges. The general issue is based on an alleged failure of the trial Judge to explicitly direct himself on the implications of his finding that the evidence showed a tendency on the part of Mr Gorrie to target backpacker accommodation and steal from tourists. Mr Lithgow submitted that in effect propensity evidence became the central feature in the proof of the identity of the offender in the disputed charges.
• [33] This and the other arguments intended to be advanced on the appeal would essentially require this Court to undertake a second review of factual findings that were made by the trial Judge and upheld in the High Court. If we were to confront the detail of the arguments for the purposes of the leave application we would essentially be performing that review in advance. We do not think it necessary to do so. It will suffice to deal with examples of the kind of argument intended to be raised if leave is granted. We take first the group of charges, charges 1 to 3, relating to the offending at Invercargill and Franz Josef.
• [34] In relation to charge 1 (unlawfully taking the Honda in Invercargill) Mr Lithgow submitted that the only evidence on which the prosecution could rely was that items with his DNA on them were found on the back seat floor. He submitted there was no proof beyond reasonable doubt that Mr Gorrie was the person who took the car. Mander J rejected a similar argument put to him in the High Court. He referred to CCTV footage, the items located in the vehicle that had Mr Gorrie’s DNA on them, and other property that was also located in the car that had been taken from the Jucy rental vehicle stolen while parked outside the Holiday Park at Franz Josef (the subject of charge 2).^[26] To defend this charge, it was necessary for Mr Gorrie to confront the unlikely coincidence not only that his DNA was found on items located inside the car, but there was also stolen property there belonging to tourists taken from another car that fitted the pattern of Mr Gorrie’s offending and in respect of which he was also found guilty. Mr Gorrie’s explanation that he had left the items on which his DNA was found in the car after being picked up by another person driving the car. Mander J held that once the trial Judge rejected that, the proven circumstances were sufficient to establish he was responsible for the theft of the car.^[27] We can see no error in this approach.
• [35] In relation to charge 2 (unlawfully taking the Jucy campervan at Franz Josef) Mr Lithgow complained that the trial Judge had impermissibly extended the propensity to target backpacker lodges and persons staying there to “a general propensity to steal from tourists”. The fact that Mr Gorrie was found guilty of taking the Honda and items from the campervan had been used to infer that he must be both the person who took the campervan and in so doing, or later, stole the items in it. He foreshadowed a submission on the second appeal that the proper inferences were insufficient to prove this charge and charge 3 (the theft of items from the campervan) beyond reasonable doubt.
• [36] Mander J noted that the argument overlooked the combined effect of the circumstances of the two thefts and the items located in the Honda. He considered there was no other reasonable inference to draw from the unusual coincidence of the presence of items in the Honda with Mr Gorrie’s DNA on them and property stolen from the rental van in Franz Josef in circumstances consistent with other evidence of Mr Gorrie’s “modus operandi to target tourists”.^[28] We cannot find any fault in this reasoning. The inferences drawn by the trial Judge were permissible based on the evidence adduced in relation to charges 1 to 3, and the Judge was entitled to see significance in the totality of the items found in the Honda.
• [37] We will not repeat this kind of analysis with respect to the other convictions sought to be pursued in the second appeal. It is sufficient for us to express our view that, in each case, we consider the trial Judge’s decisions appear to be properly based on facts proven at the trial and inferences reasonably available from them. The convictions were upheld by Mander J after a careful analysis of the evidence adduced at the trial. We are not persuaded that there has been any miscarriage of justice.
• [38] We mention finally charges 15 to 17. As noted earlier, these charges related to the use of two different bank cards taken in the burglary of a backpackers’ premises in Wanaka and subsequently used to purchase items in Queenstown. It appears that Mander J mistakenly thought that Mr Gorrie had pleaded guilty to these charges.^[29] Consequently he did not deal with them. The relevant records show that Mr Gorrie pleaded not guilty and the trial Judge convicted Mr Gorrie of those charges.^[30]
• [39] The two complainants in the case of charges 15 to 17 were staying at the same hostel in Wanaka at which a third complainant was staying. Both left their wallets in the room where they were staying and discovered them missing the following day. The Crown was able to lead evidence that the cards had been used after being taken. Mr Gorrie pleaded guilty to two other charges (charges 18 and 19) relating to the use of a credit card taken from the third complainant, on the same night. The trial Judge rejected evidence from Mr Gorrie that the third complainant’s credit card had been given to him by somebody else. He reasoned that the possession of the credit card, which Mr Gorrie admitted within a short time after the burglary, was evidence that he had committed the burglary. Relying on that and the propensity evidence he convicted Mr Gorrie of the burglary and also charges 15 to 17.^[31]
• [40] We agree with Mr Davie’s submission for the Crown that it is implausible that the person using the credit cards referred to in charges 15 to 17 was anyone other than Mr Gorrie. He does not seek to challenge on the second appeal his conviction for the burglary. Given his guilty pleas to charges 18 and 19, we are satisfied there was sufficient evidence for the trial Judge to convict Mr Gorrie on charges 15 to 17. Notwithstanding the error made by the High Court, we do not consider a miscarriage of justice has arisen in respect of those convictions.
• [41] For these reasons, we are satisfied that this is not a proper case for the grant of leave for a second appeal against conviction.

Sentence

• [42] As a result of the convictions entered in the District Court, Mr Gorrie was to be sentenced on five charges of burglary, eight charges of dishonestly using a document (five of which he pleaded guilty to during the course of the trial), one charge of theft of over $1,000 and two charges of theft of under $500, three charges of unlawfully taking a motor vehicle, and one charge each of reckless driving, driving while disqualified and failing to stop.^[32] The District Court Judge sentenced Mr Gorrie to an effective term of six years and two months’ imprisonment. He took the burglaries and associated using of a document as the lead offences and set a starting point of five years’ imprisonment.^[33] He uplifted this to six years to take into account the other offending,^[34] and added a six-month uplift for Mr Gorrie’s prior convictions.^[35] A credit of five per cent was allowed for guilty pleas entered during the course of trial.^[36] The resulting sentence was six years and two months’ imprisonment.
• [43] The Judge also considered that a minimum period of imprisonment should be ordered, influenced by the fact that Mr Gorrie was a recidivist offender. The minimum term was fixed at three years and six months.^[37]
• [44] The High Court considered the end sentence of six years and two months’ imprisonment was not manifestly excessive and dismissed the appeal. Mander J considered that in isolation the five year starting point for the lead offences could be considered harsh, but the modest uplifts imposed for the other offending and for Mr Gorrie’s previous convictions, together with the allowance for the guilty pleas made during the trial, meant the end sentence was not excessive.^[38] Referring to what he described as Mr Gorrie’s “relentless criminal history that includes multiple convictions for theft, fraud and burglary over some three decades”, The Judge considered the present offending replicated “earlier criminal conduct, a sample of which was provided by the propensity evidence called at his trial”.^[39] Given this history, the six-month uplift reflected a “merciful” approach.^[40] Similarly, in the case of the credit for the guilty pleas Mr Gorrie had only entered them when the state of the evidence left no other realistic option; he was fortunate to have received a credit.^[41]
• [45] Mr Lithgow submitted the sentence was excessive, suggesting that the six‑month uplift for previous offending was double-counting. But that is not the way in which it was viewed by the High Court Judge and we are not persuaded his approach was incorrect. Mr Lithgow also submitted that the final sentence was harsh given the total value of property taken. He drew a comparison with white collar offending which he claimed would be treated far more leniently and noted that although the offending involved burglary it had involved entry rather than breaking into premises.
• [46] These are all points that could be made on a sentence appeal. We consider the sentence imposed can properly be described as stern and it may be that a lower sentence than was imposed here could be justified. But we are not persuaded there has been any error of principle, or that there has been a miscarriage of justice as a result of the sentence imposed. The case is not one that would justify the grant of leave for a second appeal against sentence.

Result

• [47] The application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Gorrie [2019] NZDC 20913 [District Court conviction judgment].

^[2] R v Gorrie [2019] NZDC 25535 [District Court sentencing notes].

^[3] Gorrie v R [2020] NZHC 1609 [High Court judgment].

^[4] A 12 month period of disqualification imposed in respect of the charge of driving while disqualified was also quashed.

^[5] R v Gorrie [2019] NZDC 15056.

^[6] R v Gorrie [2019] NZDC 19538.

^[7] At [15]–[16].

^[8] District Court conviction judgment, above n 1, at [81].

^[9] District Court sentencing notes, above n 2, at [15].

^[10] At [14].

^[11] High Court judgment, above n 3.

^[12] At [19].

^[13] At [20].

^[14] At [26].

^[15] At [25].

^[16] At [25].

^[17] At [27].

^[18] At [34].

^[19] At [34].

^[20] At [38].

^[21] At [38]–[39].

^[22] At [39] and [41].

^[23] At [43].

^[24] At [44]–[45].

^[25] At [55] and [66].

^[26] High Court judgment, above n 3, at [71].

^[27] At [72].

^[28] At [76].

^[29] At [99].

^[30] District Court conviction judgment, above n 1, at [104].

^[31] At [104].

^[32] We note again that on appeal in the High Court the convictions for theft of under $500 were quashed and substituted for convictions for receiving of under $500, and the conviction for driving while disqualified was quashed: see at [4] above.

^[33] District Court sentencing notes, above n 2, at [8].

^[34] At [9].

^[35] At [10].

^[36] At [11].

^[37] At [15].

^[38] High Court judgment, above n 3, at [126].

^[39] At [129].

^[40] At [129].

^[41] At [130].