MOHI v R [2019] NZCA 441

MOHI v R [2019] NZCA 441 [19 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA148/2019[2019] NZCA 441BETWEEN CHARLES TOKO TEWAAKA TAAREMOHIAppellantAND THE QUEENRespondentHearing: 11 September 2019Court: Courtney, Duffy and Wylie JJCounsel: P N Ross and LRH Grant for AppellantJEL Carruthers for RespondentJudgment: 19 September 2019 at 11 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeals against both conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] On 31 May 2018, the appellant, Mr Mohi, was found guilty of one charge ofburglary following a jury trial in the District Court at Gisborne, presided over byJudge Gibson. He was sentenced to two years and six months' imprisonment on27 July 2018.1[2] Mr Mohi appeals both his conviction and the sentence imposed.2 He arguesthat the police failed to disclose in a timely fashion details of all fingerprint lifts thathad been obtained from items found at or near the scene of the burglary, that this failureprejudiced the conduct of his defence and that there has been a miscarriage of justiceas a result. He also argues that the sentence was manifestly excessive.Leave to appeal[3] The appeal was brought out of time.3 An affidavit has been filed explainingthe circumstances. Mr Mohi was in custody and he had difficulty in obtaining a lawyerwho was able to act for him. The Crown does not oppose the grant of leave and doesnot suggest that it is prejudiced by the delay. Accordingly, we grant leave to appealout of time.Factual background[4] The police alleged that Mr Mohi broke into a holiday house in Tokomaru Bay,a small settlement on the East Cape about 90 kilometres north of Gisborne. The housewas not occupied at the time. It is owned by a retired couple.[5] One of the owners visited the house on 21 October 2017. A window adjoiningthe front door had been broken. The house had been entered. The television was stillon; various household items had been moved; linen had been strewn around; drawershad been opened; the shower had been used; food left in the house had been cookedand eaten. The house had also been ransacked. There was significant internal damage,particularly to wall linings. The power had been switched off to the refrigerator and afreezer and the food stored in them had perished. Various items of property had beenstolen.1 R v Mohi [2018] NZDC 16399 [Sentencing notes] at [19].2 Criminal Procedure Act 2011, s 232 and 250.3 Sections 231(2) and 248(2).[6] Some of the stolen items were subsequently found in a laundry basketconcealed on a neighbouring property.[7] At the trial, there was no dispute that a burglary had occurred. The issue waswhether or not Mr Mohi was involved.Conviction appealThe failure to disclose[8] The Crown's case against Mr Mohi turned on fingerprint evidence.His fingerprints were found on two items — a tape measure and a packet of padlocks— which belonged to the complainants and which had been moved from where theywere usually kept. The packet of padlocks was normally kept in a cupboard inthe garage. The packet was found on an internal staircase. The tape measure wasalways left on a set of shelves below the staircase. It was found on the floor inthe garage under a bike.[9] The defence case was that Mr Mohi's fingerprints could have found their wayonto the two items in some other way, and that the presence of his fingerprints on tworeadily moveable items did not of itself establish beyond reasonable doubt that he hadbeen involved in the burglary.[10] Prior to trial, the fingerprint evidence relating to the tape measure and packetof padlocks had been disclosed. It was also disclosed that five other fingerprint liftshad been obtained by the police, but that those lifts were not of sufficient quality toenable reliable matches to be made.[11] In the course of a luncheon adjournment during the trial, counsel then actingfor Mr Mohi received a telephone call from the Crown prosecutor. The prosecutoradvised that he had belatedly been told by the officer in charge that nine otherfingerprint lifts had also been taken by the police at the time of the initial investigation.Defence counsel was told that these additional lifts had been taken from the upstairsarea in the house. Four did not have sufficient detail to permit reliable examination.The remaining five lifts had been examined, and none of them matched Mr Mohi'sfingerprints.[12] At the time this further information was disclosed, the Crown's fingerprintexpert — Barry Smith — was in the middle of giving his evidence. Three other Crownwitnesses had already given their evidence.[13] Immediately after the luncheon adjournment, defence counsel asked to seeJudge Gibson in chambers. Counsel asked the Judge to declare a mistrial, based onthe failure to disclose the additional fingerprint evidence. He also relied on otherevidence that suggested that another officer had attended the scene, but that hisnotebook entries had not been disclosed. The Crown opposed the application, arguingthere was no prejudice to Mr Mohi.[14] The application was declined by Judge Gibson. Unfortunately, we do not havea record of the ruling made, although there is a reference to a ruling in the transcript.Defence counsel has deposed that Judge Gibson expressed the view that there was noprejudice to Mr Mohi, and that the Judge suggested to defence counsel that he shouldelicit from Mr Smith evidence of the additional lifts belatedly disclosed, and the factthat none of them was a match for Mr Mohi's fingerprints.[15] The trial proceeded and defence counsel cross-examined Mr Smith about theadditional fingerprints. Mr Smith confirmed that he had been sent a further ninefingerprint lifts by a police officer, Constable Poi. Mr Smith said that four of the liftswere unsuitable for comparison. He said that the remaining five lifts were comparedwith Mr Mohi's fingerprints and that none of them was a match. One of these liftswas run through the police's fingerprint database, but the other four were not ofsufficient quality to make this exercise worthwhile. It became clear in the course ofcross-examination that Mr Smith had made notes recording his analysis of theseadditional fingerprints. Those notes had not been disclosed.[16] Defence counsel also asked Constable Poi about the additional fingerprint lifts.He confirmed that he had lifted the nine fingerprints and that he had submitted the liftsfor analysis. He could not remember which items he had lifted the fingerprints from.He accepted that he had not made a note of this.[17] The trial continued. There was no application to recall any of the threewitnesses who had already given evidence before the additional disclosure. Mr Mohielected to neither give nor call evidence. He however did terminate the services ofcounsel assigned and chose to represent himself. He made his own closing address.[18] Notwithstanding that his retainer had been terminated, after the trialdefence counsel sent an email to the Crown requesting further disclosure of anyinformation about the additional fingerprints. He received a response fromConstable Poi, attaching copies of what counsel presumed were entries from hisnotebook. Those entries did not satisfy counsel, and he sent a further email toConstable Poi and the Crown asking for yet further disclosure. He received a responsefrom Crown counsel attaching an email from Mr Smith, along with copies of theadditional fingerprint lifts that had been sent to him by Constable Poi. The disclosureindicated that some of the items from which the fingerprint lifts had been taken hadbeen found on a neighbouring property, and not in the upstairs area of the burgledhouse. Defence counsel emailed the Crown on the same day to enquire further aboutthis. A response was received approximately two weeks later. Crown counsel saidthat none of the additional fingerprint lifts had been taken from items found on theneighbouring property. Shortly thereafter, Crown counsel followed this initialresponse up with a further email to say that he had some doubts about his earlierresponse, that he would check with Constable Poi and get back to defence counsel.He did not do so.Submissions[19] Mr Ross, for Mr Mohi, noted that the defence theory of the case was thatMr Mohi was not present, and the fact that his fingerprints were found on two itemsin the burgled house was not proof beyond reasonable doubt. It was argued that therewere a number of scenarios which could have resulted in Mr Mohi's fingerprints beingfound on the two items. He submitted that the fact that fingerprints were found whichbelonged to others strengthened Mr Mohi's defence. He argued that the additionalfingerprint evidence established that other people were present in the house. He put itto us that if adequate and timely disclosure had occurred, the defence would have beenable to better consider the relevance of the additional fingerprints found.[20] He pointed to four possibilities that could have been explored:(a) that Mr Mohi handled the tape measure and the packet of padlocks in ashop prior to their sale to the complainants;(b) that the burglar(s) took the items when he/she/they committedthe burglary, that the tape measure and padlock packet had beenhandled by Mr Mohi at another location and that Mr Mohi had returnedthem to the burglar(s);(c) that the items belonged to the burglar(s), that Mr Mohi handled them atanother location prior to the burglary, and that the burglar(s) took themto the burglary and left them there; and(d) that Mr Mohi visited the house while the burglar(s) was there andtouched the tape measure and the padlock packet.[21] Mr Ross argued that the defence was denied the ability to properly considerthese possibilities. He noted that defence counsel, in cross-examining a police officer,Constable Lynch, elicited the fact the police had not undertaken any furtherinvestigation once Mr Mohi had been arrested. He noted that defence counsel had putthree names to Constable Lynch and that he had confirmed that the police had notspoken to any of them. He submitted that there may well have been a miscarriage ofjustice and that the appeal should accordingly be allowed.[22] Mr Carruthers, for the Crown, submitted that the late disclosure did not hinderMr Mohi in advancing his defence, and suggested that Mr Mohi cannot point toanything material that he would have been able to achieve had he receivedthe disclosure in a timely fashion.Analysis[23] The purpose of the Criminal Disclosure Act 2008 is to promote the fair,effective and efficient disclosure of relevant information between the prosecution andthe defence (and by non-parties) for the purposes of criminal proceedings.4Disclosure takes place in two stages: initial disclosure and then full disclosure.5Disclosure promotes a defendant's right to a fair trial and equality of arms.6 There isa positive obligation on the prosecution to disclose information in its possession orunder its control. The prosecution is required to approach its disclosure obligationsnot as an adversary, but as a "minister of justice" that holds information to ensure thatjustice is done rather than for the purpose of securing a conviction.7[24] Here, the Crown concedes that full disclosure was not made in a timely fashion.[25] There can be various consequences if a party fails to disclose information inaccordance with the Act.8 The Court can exclude the undisclosed evidence, adjournthe trial (with or without requiring the evidence to be disclosed), or admitthe evidence.9 A party's failure to comply with disclosure requirements can be dealtwith as a contempt of court.10 The court can adjourn a trial or discharge a jury if adefendant is prejudiced by a surprise witness.11 Failure to disclose relevantinformation can result in a trial being aborted.12[26] Non-disclosure can provide grounds for a successful appeal, butnon-disclosure in itself does not automatically mean that a miscarriage of justice hasoccurred. The critical issue in any given case will be whether or not the non-disclosurewas material so as to give rise to a risk of a miscarriage of justice.134 Criminal Disclosure Act 2008, s 3(1).5 Sections 12 and 13.6 R v Sullivan (No 10) [2014] NZHC 1105 at [9].7 At [34].8 See Simon France (ed) Adams on Criminal Law — Procedure (looseleaf ed, Thompson Reuters)at [CD3.02].9 Criminal Disclosure Act, s 34(2).10 Sections 32(3)(b), 32(4) and 34(4).11 Criminal Procedure Act 2011, s 113.12 See R v Bublitz [2017] NZHC 1059.13 Olsen v R [2017] NZSC 18 at [16] (dismissing an application for leave to appeal); and B v RCA351/01, 19 March 2002 at [26].[27] We are not persuaded in this case that the late disclosure was material, or thatthere was any significant prejudice to Mr Mohi. As a result, we do not consider thatthere was a risk of a miscarriage of justice.[28] First, we note that the additional fingerprint evidence is not additional evidenceimplicating Mr Mohi in the offending. It suggests that others may have been involvedas well. It did not however matter whether Mr Mohi was the principal acting alone orwas a party to the burglary with others. The issue at trial was whether Mr Mohi wasinvolved and the additional fingerprint evidence does not bear on this.[29] Secondly, it was contended for Mr Mohi that had he known that fingerprintsother than his had been lifted from the house, he may have been able to explore otherpossible defences. Three possible avenues of inquiry were advanced.(a) It was argued that Mr Mohi may have been able to better explorethe possibility that the items on which his fingerprints were found werehandled by him in another location, prior to the burglary. This defencewas however advanced at trial. It was put to the fingerprint expert,Mr Smith. His evidence was as follows:Q. It's entirely possible isn't it that the defendant could havetouched these items at an earlier occasion, for example whenthey were in a shop, warehouse, before they were transferredto the property?A. So you're suggesting that they were touched by the defendantsomewhere else –Q. It's entirely possible isn't it?A. – and then find them themselves in the scene, crime scene?That – I'm just trying to just clarify what you're saying, that'sall.Q. That's possible isn't it?A. Well it depends on really how good your imagination is.I think that's quite far-fetched but I will say yes, it's possible.THE COURT:Q. Why would it be far-fetched? I mean if for instance the lockshad been bought a month before and they had been on displayin a Smith City?A. Yes I understand. So items on display in the shops may ormay not have been handled by numerous people. Every timeit's handled you're going to overwrite what's there. You'regoing to smudge – not necessarily overwrite, you're going tointerfere with it in some way because, say something'shanging on display, most people are going to go for it in thesame way. The usual, usual way. So you – they'll put it back.You could lift it up. You put it back. Whatever it may by.It'll be customary for it – to pick it up in a certain way.The more often that's done the greater the chance ofdestroying what's already there. So I suppose you could saythe last person to touch it would leave the print on the top.And then the item will have to be purchased by somebody,taken off the shelf again, perhaps given to the shop assistance,perhaps, bagged. How has it been stored between where it isin the shop and where it goes to, how has it been packaged?How has it been handled? It's unlikely that anything wouldremain undamaged in that circumstance because ofthe number of handlings.CROSS-EXAMINATION CONTINUESQ. You can't be sure that just because the defendant'sfingerprints were found on these two items, that he wasthe last person to touch them can you?A. No. I can't be sure.Clearly this prospective defence was before the jury. It was dealt withfully by Mr Mohi in his closing address, and fairly put by Judge Gibsonin his summing up. It was rejected by the jury. The availability ofthe defence was not affected by the late disclosure.(b) It was argued that Mr Mohi may have been able to better explorethe possibility that he handled the tape measure and the packet ofpadlocks when offered them by the burglar(s) after the burglary. We donot consider that this is a realistic suggestion. It would require the juryto accept as a reasonable possibility that the burglar(s) took the itemsfrom the property and gave them to Mr Mohi, that Mr Mohi handledthem, and then returned them, that the burglar(s) accepted their return,then returned to the house, and left the items where they were ultimatelyfound. In our view, this argument is intrinsically implausible. Further,this prospective defence was available regardless of the late disclosure.(c) The third prospective defence it was suggested could have been betterexplored was that Mr Mohi handled the items, which actually belongedto the burglar(s), at another location and prior to the burglary, and thatthe burglar(s) then took them to the burgled house and left them behind.The difficulty with this suggested defence is that it ignores thecomplainant's evidence that the items were his. As noted above, he notonly confirmed ownership but was also able to describe in some detailwhere he had left the items. The suggested defence is inconsistent withthat evidence, is intrinsically implausible, and was not precluded bythe late disclosure.(d) It was argued that the defence could have better explored the possibilityMr Mohi visited the house while the burglar(s) were there and handledthe items. Again, there is an air of unreality to this suggestion.The complainant confirmed that Mr Mohi did not have his authority tobe in the house. There would still have been an offence committed —depending on Mr Mohi's intent it may have been burglary, or perhapsbeing found in a building without lawful excuse. More importantly,this possible defence was open to Mr Mohi whether or notthe additional fingerprint evidence was disclosed.[30] Mr Mohi's fingerprints were found only on moveable items. His ability toeffectively advance any of the suggested lines of defence did not turn on him knowingin advance that additional fingerprint lifts had been taken, or whether they were takenin the house or from property found near the house.[31] The appeal against conviction is dismissed.Sentence appeal[32] Judge Gibson in his sentencing notes referred to the relevant facts. He notedthat Mr Mohi has an appalling criminal history, comprising some 80 convictions.14He also noted that Mr Mohi has an extensive history of non-compliance with courtorders and that, according to the probation officer who interviewed Mr Mohi, he hasa "strong sense of entitlement".15 The Judge recorded that there is no tariff case forthe burglary of a residential property, but that this Court's decision in Arahanga v R,is generally regarded as assisting with identifying the appropriate starting point.16The Judge observed that the starting point indicated there for dwelling houseburglaries is between 18 months' imprisonment and two and a half years'imprisonment.17[33] He noted the aggravating features of Mr Mohi's offending, including thesignificant damage caused, and the length of time Mr Mohi apparently spent inthe property.18 He accepted that the risk of confrontation with occupiers was low.19Taking all of these matters into account, he adopted an overall starting point oftwo years and three months' imprisonment.20 He referred to s 9(j) of theSentencing Act 2000 and imposed an uplift of three months, commenting that this wasmodest because he wanted to give Mr Mohi some credit for what he considered were"hopeful aspects" in his life.21 He imposed an end sentence of two years andsix months' imprisonment.22Submissions[34] Mr Ross submitted that the starting point adopted by Judge Gibson was toohigh, and that the increase for his previous convictions was unwarranted, becausethe only relevant recent offences were two relatively minor burglaries. He also arguedthat the additional fingerprint evidence showed that others were present, and that the14 Sentencing notes, above n 1, at [1].15 At [6].16 At [8]; citing Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.17 At [8].18 At [12].19 At [13].20 At [14].21 At [15].22 At [17].extent to which the aggravating characteristics of the burglary could be attributed toMr Mohi was not explored by Judge Gibson.Analysis[35] In our judgment, the sentence imposed by Judge Gibson was not manifestlyexcessive.[36] The starting point adopted by the Judge is consistent with the approach takenby this Court in Arahanga, where the burglary was coincidentally of a bach or holidayhome as well. It was there noted as follows:23[78] This Court has deliberately not set a tariff for burglary becausethe range of circumstances in which the offence can be committed is so varied.Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years andsix months' imprisonment.[37] The aggravating features noted by the Judge cannot be denied. There wassignificant and wanton damage to the house and its contents. The house was occupiedfor some indeterminate period and items in it were used. It does not matter whetherMr Mohi was the principal offender or a party to the burglary along with another orothers. The starting point adopted by the Judge was within the available range.[38] In regard to the uplift for previous convictions, the Judge was clearly awarethat only a few of Mr Mohi's previous convictions are for burglary. By our count,there have been seven prior convictions for burglary, although many of them were anumber of years ago. The most recent burglary was in April 2015. Mr Mohi wasrequired to come up for sentence if called upon for a period of one year. It was clearlyminor offending. Prior to this, the most recent burglaries were in 2004. Mr Mohi doeshave in excess of 80 previous convictions, many of which are for dishonesty relatedoffending, including receiving, theft, shoplifting, unlawfully taking motor vehicles,using a document for pecuniary advantage and the like. We consider thatJudge Gibson was perhaps a little stern in imposing a three month uplift for the prior23 Arahanga v R, above n 16 (footnotes omitted).offending, but as against this, we observe that the Judge did not impose an uplift forthe fact that the burglary was committed while Mr Mohi was on bail, albeit in respectof offences which, it seems were not ultimately proved against him. It wouldnevertheless have been open to the Judge to treat this as an aggravating factor, and tohave uplifted the sentence accordingly.24[39] In our view, in the round, the sentence imposed was within the available range.[40] The appeal against sentence is dismissed.Result[41] The application for an extension of time to appeal is granted.[42] The appeals against both conviction and sentence are dismissed.Solicitors:Cathedral Lane Law, Napier for AppellantCrown Law Office, Wellington for Respondent24 Where there has been delay in the disposition of proceedings caused by the failure ofthe prosecutor to, inter alia, comply with the Criminal Disclosure Act, and such delay has hadadverse effects on the offender, this can be a mitigating factor for sentencing: see Sentencing Act2002, s 9(2)(fb) and 9(2)(fb). In the present case, the failure by the prosecutor to comply withthe Criminal Disclosure Act did not cause any delay in the disposition of the proceedings and therewere no adverse effects on Mr Mohi.