Landmark v Police [2014] NZHC 1280 (6 June 2014)

Last Updated: 15 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-264 [2014] NZHC 1280

BETWEEN	CHRISTIAN JOHAN LANDMARK Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 February 2014
Appearances:	T D Clee for Appellant J B Hamlin for Respondent
Judgment:	6 June 2014

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on 6 June 2014 at 4.30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

LANDMARK v POLICE [2014] NZHC 1280 [6 June 2014]

[1] On 2 August 2013, Christian Landmark, a young Englishman then in New Zealand on a visa, was convicted of wilfully damaging headstones in the old Jewish cemetery, Symonds Street, Auckland, between 17 – 19 September 2012. By then he had spent some time in custody on remand and had completed voluntary work while on bail. He was to leave the country the following day. Judge Collins sentenced him to pay $3,000 reparation immediately.

[2] Mr Landmark appeals his conviction, which rests on Judge Collins’ decision given after a defended hearing on 6 June 2013, holding him to have been a lesser principal offender than his co-offender, Robert Moulden, who had admitted to defacing most of the headstones, but a principal offender nevertheless. Judge Collins held, relying principally on Mr Moulden’s evidence, that Mr Landmark must have defaced some headstones himself.

[3] On this appeal Mr Landmark accepts, as he then did, that he and Robert Moulden went to the cemetery together; that he owned the spray can that Mr Moulden used; and that he had the photographs sent to the television media (using a third person originally charged but not prosecuted) hoping to sell them. He denies that he defaced any headstones himself.

[4] The Judge was wrong, Mr Landmark contends, to accept Mr Moulden’s evidence that the headstones were all defaced on a single night while they were together, and that while he defaced most, Mr Landmark must have defaced some. By the time he gave his evidence Mr Moulden may have already admitted his part and been sentenced. But he was out for revenge. He was only apprehended after Mr Landmark had photographs sent to the media, showing him defacing headstones.

[5] The Judge was equally wrong, Mr Landmark contends, to hold that he and Mr Moulden went to the cemetery on the night of 18 October 2012, or more probably in the early hours of 19 October 2012. His case was and remains that Mr Moulden defaced all the headstones desecrated, some on the night they were together, which he says must have been 17 October 2012, and some on the night of

18 October when, he contends, Mr Moulden returned to the cemetery by himself.

[6] At the hearing, Mr Landmark called Nicholas Rosewarne to say that on 18

October 2012 Mr Moulden told him that he had desecrated the cemetery the night before and was returning that night to complete the job. The Judge wrongly ruled out, Mr Landmark contends, the evidence that Mr Moulden had attempted to intimidate Mr Rosewarne into not giving that evidence. Mr Landmark also takes some lesser points to which I will refer in passing.

General appeal

[7] This is a general appeal under s 115 of the Summary Proceedings Act 1957. It is by way of rehearing on the evidence given in the District Court.¹ On such an appeal this Court may confirm or set aside the conviction as it thinks fit.²

[8] To succeed in his appeal Mr Landmark must establish that the Judge made an error of fact or law, but I must assess that for myself while taking into account the advantage the Judge had of seeing and hearing the witnesses.³ This is not an appeal from a jury verdict, or one given by a Judge without a jury, where the Court reviews the evidence without substituting its own view.⁴

[9] Where, as here, the issue is whether an offence is proved to the criminal standard, partly on circumstantial evidence, what is in issue is not whether each strand of evidence on which the prosecution relied was probative, but whether all strands combined were probative.⁵

Two essential issues

[10] The first issue is when and how many times the cemetery was desecrated. Mr

Moulden and Mr Landmark were first charged with desecrating it on 17 October

2012. At the hearing, the Judge amended the charge to substitute the span 17 – 19

October 2012 to conform with his finding that it was desecrated on 18 October 2012. Mr Landmark contends Mr Moulden desecrated it twice, on 17 and 18 October 2012.

¹ _{Summary Proceedings Act 1957, s 119.}

² _{Section 121(1), (2).}

3. Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16]; O'Neil v Police HC Auckland CRI 2007-404-405, 9 October 2008 at [5].

⁴ _{Owen v R [2007] NZSC 102; R v Munro [2007] NZCA 510.}

⁵ Thomas v R [1972] NZLR 34 (CA) at 38.

[11] The second and necessarily related issue is as to what part Mr Landmark played, if any, in defacing the headstones; and, most especially, whether he was as first charged, and as the Judge found, a principal offender, jointly responsible with Mr Moulden for defacing the headstones himself.

[12] Was Mr Landmark instead, as on 23 January 2013 the charge was amended to say, a party to Mr Moulden’s offence under s 66(2) of the Crimes Act 1961? Did they, when together, share a common purpose, to spray paint public and private property? Was defacing the headstones a probable consequence? Did Mr Landmark subscribe to that by photographing Mr Moulden in the act, and the results?

[13] Was Mr Landmark instead, as the Judge said at the hearing and in his decision, a party to Mr Moulden’s offence under s 66(1)(b), (c)? By photographing the defaced headstones, and Mr Moulden in the act of defacing them, did Mr Landmark assist and encourage Mr Moulden in his offence?

Desecration 19 October 2012

[14] On Sunday 21 October 2012, when interviewed, Mr Landmark at first denied any part in the desecration of the cemetery. He then admitted that he had photographed the headstones defaced, and being defaced, and had arranged to have some sent to the television media, hoping for a sale. Later that afternoon Mr Moulden admitted to spray painting the headstones and to being the person photographed.

[15] These admissions did not resolve when the cemetery was desecrated, or whether that was once or twice; and to conclude that it was desecrated once only, when Mr Moulden and Mr Landmark were together, on the night of 18 October

2012, or more probably in the early hours of 19 October 2012, the Judge relied on three independent strands of evidence.

[16] First, the Judge relied on the fact that the police only became aware that the cemetery had been desecrated, when contacted just after 1 pm on Friday, 19 October

2012, and that when they went immediately to the cemetery, television crews were

already there or arrived soon after. By then the fact of the desecration had become a public event.

[17] The cemetery, as the Judge said, lies at the centre of Auckland. It is an old cemetery immediately contiguous to Karangahape Road, and a small park, with many passers by. It is a small cemetery and many of the headstones in it, 20 in all, had been obviously defaced with black spray paint. Large black swastikas had been sprayed across most. ‘88’, a neo Nazi symbol, had been sprayed in equally big numerals across others. Yet others were defaced with highly offensive slogans. Passers by, as the Judge said, could hardly have missed seeing how desecrated the cemetery was.

[18] Secondly, the media were already present when the police arrived, as the Judge noted, because a photograph had been posted on Television One’s Facebook. It had been taken at night. It showed the back of a person, wearing a distinctive black hoodie, spray painting a headstone. Later that day, or on the next day, Television Three also received a photograph by email. These were the photographs which Mr Landmark admitted taking of Mr Moulden, and which Mr Moulden accepted depicted him in the act.

[19] Thirdly, incoming and outgoing text messages from Mr Landmark’s mobile phone for the period 6 – 24 October 2012 were in evidence. To support his evidence that Mr Moulden had first desecrated the cemetery when they were together on 17

October 2012, Mr Landmark relied on texts exchanged that night. But after analysing them the Judge concluded that they related to an unrelated incident and I need only say that I agree. By contrast, he held, those exchanged between the nights of 18 – 21 October 2012 plainly related to the desecration of the cemetery.

[20] On 19 October, at 12:13:06, an hour before the police went to the cemetery, a person called ‘Diggity’, who appears never to have been identified, sent to Mr Landmark this text ‘Saw your handiwork on the filthy jew cemetery G it made the news.’ At 13:18:29, soon after the police went to the cemetery, and the media were already there, Mr Landmark replied ‘Lmfao which news lol’.

[21] The texts exchanged between Mr Landmark and ‘Narc Rob The; Racist’, Mr

Moulden, were much more extensive. They began late on the night of 18 October

2012, when at 23:00:22, Mr Landmark sent a text to Mr Moulden asking, ‘Up 2’, to

which Mr Moulden replied at 23:01:29 ‘Nothing’. At 23:04:22 Mr Landmark asked

‘where’ to which Mr Moulden replied at 23:05:02 ‘Hostel’. That exchange, brief though it was, was consistent with the Judge’s finding that they most probably met in the early hours of 19 October 2012.

[22] Consistently, later on 19 October 2012, at 14:29:58, Mr Landmark sent a text to Mr Moulden saying ‘Lol u made the news’. At 14:31:28 Mr Moulden replied

‘Wat happened?’. At 14:32:02 Mr Landmark replied ‘Type Auckland grave desecration in google’. Mr Moulden replied at 14:34:43 ‘Oh fuck. Who the fuck done that’. At 14:35:09 Mr Landmark replied ‘Idk lol but it looks right up ur alley’.

[23] Then at 20:28:52 on 19 October 2012 Mr Moulden began to send Mr

Landmark texts about the public reaction and became increasingly worried. At

23:12:07 he warned Mr Landmark, who was apparently with others, ‘Don’t show

them photo’s, especially if you get waste tonight’. By the early hours of 20 October

2012, Mr Moulden had become angry. He accused Mr Landmark of sending the photographs to the media for profit, without telling him. At 5:16:26 he said ‘If anyone finds out it was us they’ll kill all three of us’. He was still angry at 18:04:24 on 20 October 2012, when he sent Mr Landmark this text: ‘What the fuck were you thinking doing that??!??’. Mr Landmark replied at 18:10:07 ‘One could say the same too yoi’. To that Mr Moulden replied at 18:11:19 ‘Pretty fucking convenient finding some morals now’.

[24] These exchanges continued on 21 October 2012, after they were interviewed, into the early hours of 22 October 2012. At 23:15:14 on 21 October 2012, Mr Moulden sent this text to Mr Landmark ‘Oh did threenews reject your offer to put up bullshit and photographs of your mates for money? – gaaaayy...’. To that Mr Landmark replied on 22 October 2012, at 00:40:57, ‘Lol na there very interested though but I’m pretty sure I’m not going through with it’.

[25] At 00:47:53 Mr Landmark sent Mr Moulden this text, ‘Gotta admit you’d

love to see a pic of you in the herald’ and reassured him that his face would not show. Mr Moulden responded, in an extensive text, that he was identifiable because his hoodie was manufactured by ‘Aryanwear’, it was highly distinctive, and he was certain nobody else in Auckland had one.

[26] These three strands of evidence, the Judge said, and I agree, are each cogent in themselves and, when combined, are compelling. The cemetery must have been desecrated late on the night of 18 October 2012, or more probably in the early hours of 19 October 2012. Had it first been desecrated on the night of 17 October 2012 that would have inevitably attracted public attention. The wider evidence is also inconsistent with any such possibility.

[27] That being so, the Judge was entitled to conclude, as he did, that the cemetery was completely desecrated on that single occasion when Mr Moulden and Mr Landmark were together; and the issue then became whether Mr Landmark defaced some of the headstones and, if he did not, whether he was a party to Mr Moulden’s offence.

Landmark role

[28] To find that Mr Landmark was a joint principal offender, who defaced some of the headstones himself, the Judge had to accept the evidence of Mr Moulden that he had not defaced all of the headstones himself and that Mr Landmark was the only other person who could have defaced those that he did not deface.

[29] Mr Landmark contends that the Judge was wrong to accept Mr Moulden’s evidence that he was responsible for defacing some of the headstones because, very clearly, Mr Moulden had a motive to give false evidence against him to ensure that he too was convicted of and sentenced for the offence.

[30] First, Mr Landmark contends, when Mr Moulden gave his evidence he may have already been convicted and sentenced for his part in the offence, but he was only traced after Mr Landmark had photographs of him sent to the media and he held Mr Landmark accountable for having betrayed him. His anger is clear from their text exchanges set out earlier in this decision.

[31] Secondly, Mr Landmark contends, at the hearing itself, Mr Moulden demonstrated that he was a far from neutral witness. When Mr Landmark recruited Mr Rosewarne, who was to be a prosecution witness, to give evidence for the defence, Mr Moulden, in two intimidating texts, told Mr Rosewarne to keep away.

[32] That became an issue when Mr Clee, Mr Landmark’s counsel, wanted to put those texts to Mr Moulden, whom he was still cross examining. The Judge refused to allow that to happen until Mr Moulden had first taken advice about whether he might incriminate himself in any answer he gave. Even so, Mr Rosewarne confirmed that he had got the texts and also that Mr Moulden had approached him before he gave his evidence.

[33] On these two bases, I accept, Mr Landmark does fairly put in issue whether Mr Moulden was a witness on whose evidence the Judge could safely rely. But though the Judge does not refer to the two Rosewarne texts, attributed to Mr Moulden, he was clearly alert to the fact that Mr Moulden did have reason to give false evidence against Mr Landmark. He expressly warned himself, under s 122 of the Evidence Act 2006, to be cautious when deciding whether to accept Mr Moulden’s evidence.

[34] For that reason the Judge then analysed Mr Moulden’s evidence to see whether it was animated by malice and concluded that, while Mr Moulden was an unsatisfactory witness, he was not a vindictive one. Indeed, the Judge said, while Mr Landmark was not prepared to accept complete responsibility for the desecration, he had done his best to minimise Mr Landmark’s part.

[35] I agree with that conclusion. Mr Moulden did not attempt to pass responsibility to Mr Landmark wholesale. He accepted that he had defaced most of the headstones himself. He did not claim to have seen Mr Landmark deface any. Rather, he disclaimed having the spray can all of the time. He disclaimed the ability to deface all the headstones desecrated within the two minutes he estimated they were there together. When interviewed by the police he had said that the swastikas were in different styles.

[36] The difficulty that Mr Moulden’s evidence presents, to my mind, is not that it is vindictive but that it is oblique and not fully coherent. If he could not have defaced all the headstones within the two minutes they were together at the cemetery, how could Mr Landmark? If Mr Moulden did not have Mr Landmark in his sight all the time, and could not say which headstones he himself had defaced and which he had not, which headstones did Mr Landmark deface?

[37] The Judge did not, it has also to be said, rely exclusively on Mr Moulden’s evidence. He held that it was implausible that Mr Landmark, the owner of the spray can and the photographer, present throughout, would have stood by and not defaced some of the headstones. Equally, he held, in the text exchanges with ‘Diggity’ and Mr Moulden, Mr Landmark made implicit admissions.

[38] These were, I accept, two plausible sources of inference open to the Judge. But I remain left with a question whether, even when they are set alongside Mr Moulden’s evidence, they can give rise to more than the strong suspicion that Mr Landmark did share in the defacing of the headstones. That said, I am fully satisfied that the Judge was right to convict Mr Landmark of the offence.

[39] When Mr Moulden defaced the headstones, Mr Landmark stood close behind him and photographed him doing so. He also photographed the headstones defaced. In those two ways he actively assisted and encouraged Mr Moulden. He documented the desecration of the cemetery. He shared with Mr Moulden in the fullest sense responsibility for its desecration. Whether he himself also defaced some headstones is incidental.

[40] I agree also with the Judge that in the texts Mr Landmark later sent, and in the approach he had made to the media, he set out to make the fact of the desecration as widely known as possible and he attempted to profit from it by selling his photographs. To say that he was merely a secondary party to Mr Moulden’s offence understates his part. He was equally culpable with Mr Moulden.

Conclusions

[41] In the result, I conclude, the Judge was right to convict Mr Landmark of

wilfully damaging headstones in the cemetery between 17 – 19 September 2012, if not as a principal then as a party, and I dismiss Mr Landmark’s appeal against his conviction.

[42] Mr Landmark has not appealed his sentence and, even though I have held on the evidence that he was more securely a party than a principal to the offence, he has no basis for doing so. I am satisfied that his sentence was proportionate to his offence and is consistent with the sentence imposed on Mr Moulden.

[43] After denying his offence and being found guilty of it, Mr Landmark was remanded in custody and when granted bail completed voluntary work. But his sole sentence was reparation. He was not sentenced, as Mr Moulden was, to 320 hours community work and nine months supervision. Yet Mr Moulden admitted his offence from the outset and expressed genuine remorse and reconciled with members of the Jewish community.

[44] The reparation imposed was well within Mr Landmark’s then means. It was the same as that imposed on Mr Moulden. It was a fraction of the cost to the Jewish community, in their attempt to restore to something like their former state historic headstones, which had stood in the cemetery for in excess of 100 years and were

_{already fragile.}

P.J. Keane J