HANARA v R [2017] NZCA 344

HANARA v R [2017] NZCA 344 [11 August 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA323/2016[2017] NZCA 344BETWEEN DEPAK HANARAAppellantAND THE QUEENRespondentHearing: 24 July 2017Court: Gilbert, Brewer and Peters JJCounsel: P N Ross for AppellantS K Barr for RespondentJudgment: 11 August 2017 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The application to introduce further evidence in support of the appeal isdeclined.C The appeal against conviction is dismissed.D The appeal against sentence is also dismissed.___________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury presided over by Judge Rea in the Napier DistrictCourt, Depak Hanara was found guilty of three charges: aggravated burglary,possession of an offensive weapon and conspiring to pervert the course of justice. MrHanara had earlier pleaded guilty to two further charges: threatening to cause grievousbodily harm and attempting to pervert the course of justice. These five charges allarise out of the same sequence of events.[2] Mr Hanara received an effective end sentence of six years and six months'imprisonment for these five offences.1 He initially appealed against his sentence buthe does not pursue this. The appeal against sentence can accordingly be dismissed.[3] Mr Hanara appeals against his conviction on the three charges of which he wasfound guilty by the jury, contending that the verdicts are unreasonable and notsupportable by the evidence.[4] The appeal was filed late and accordingly Mr Hanara applies for leave toappeal out of time. He has explained the delay in lodging his appeal and hisapplication is not opposed. We are satisfied that leave to appeal out of time should begranted.[5] Finally, Mr Hanara applies to introduce further evidence on appeal to supporthis claim that the verdicts are unsafe and that a miscarriage of justice has occurred.Facts[6] It is necessary to summarise the evidence relevant to each charge beforeexamining Mr Hanara's contention that the jury's verdicts are unreasonable. Much ofthe key evidence is irrefutable, being admitted facts, transcripts of Mr Hanara'stelephone conversations from prison and written statements he prepared.1 R v Hanara [2016] NZDC 669.Threatening to cause grievous bodily harm[7] Shortly prior to his release from Hawke's Bay Regional Prison on 5 November2014, Mr Hanara wrote a letter to an associate, Caleb Clare, threatening to cause himgrievous bodily harm. The letter included the following statements: I show you my true colours. I'm so fucken angry G UR guna fell the fullbrunt of My Anger Caleb. And you know that I don't give a Fuck about thepigs or jail. I hope 2 not go to far, just leave u with afew Scares to remind uof me.C u "Reall" Soon!Now Ima B UR Worst enemy!!![8] Mr Hanara pleaded guilty to the charge of threatening to cause grievous bodilyharm arising out of this letter.Aggravated burglary and possession of an offensive weapon[9] On 2 November 2014, Mr Hanara spoke by telephone from prison to anassociate, Ebony Hemara, and told her that he intended to visit Mr Clare immediatelyafter his release and leave him with a few scars:EH Why do you wanna slash Caleb oi? 'Cause um I don't think youshould.DH 'Cause I get really fucked off so I have to leave him with somescars.EH Fair enough.What day are you getting out?DH I'm not going to tell you 'cause you'll tell Caleb.EH But you said you were gonna call me on the day you get out anyway.DH Yeah I'll call you.EH So why does it matter?DH Yes 'cause, but I'm gonna go straight up there.DH I'm gonna be fast about it, just poke him up a little bit and thenthat's it.EH Well don't stab him or anything.DH I have to.DH I have to leave him with some scars so.EH You don't have to leave him with scars.DH I do. I do, that's just my way.EH Don't shank cunts up.DH I have to: that's what I do.[10] The police were aware of Mr Hanara's telephone calls threatening Mr Clare.In anticipation of Mr Hanara's release the following morning, Detective Stacey Baileywent to Mr Clare's flat on the afternoon of 4 November 2014 to discuss the threat tohis safety. Mr Clare told her that he would be at work the following day from 5.00 amand he felt safe there. In accordance with the detective's advice, Mr Clare said thathe told his flatmates that they should keep the door locked and not let Mr Hanara enter.He also told them that if Mr Hanara did manage to get in, they should advise Mr Clarestraight away so he could inform the police.[11] Mr Hanara was released from prison at approximately 8.00 am on 5 November2014 and driven by an associate to his home in Maraenui, a distance of approximately25 kilometres. He says that he had a shower and changed his clothes. He then reportedto the probation office in central Napier at around 10.00 am where he was advised notto associate with Mr Clare. After leaving the probation office, Mr Hanara withdrewcash from an ATM at 10.29 am and then walked the short distance to Mr Clare'saddress.[12] The Crown case was that Mr Hanara obtained entry to the flat where Mr Clarelived using a shank to "pop the lock". Mr Clare's flatmate, Enzo Marquet, confirmedthat he locked the outside door after letting friends into the flat earlier that morning.Mr Hanara then walked upstairs where Mr Marquet was playing Xbox in the loungewith some friends. According to Mr Marquet, Mr Hanara immediately asked whereMr Clare was. Mr Marquet told him that he was at work.[13] The two of them went into Mr Marquet's bedroom to talk. Mr Marquet saidthat Mr Hanara produced the shank and showed it to him. The shank was made froma plastic knife and fork bound together in the middle with cloth and cord. Mr Marquetsaid Mr Hanara told him that he had made the shank in prison and had sharpened oneend of it by rubbing it "against the cell wall or something". He said that Mr Hanaraexplained that the cord acted as a "grip" and prevented fingerprints from being left onthe blade. When Mr Marquet commented that one end of the shank appeared broken,Mr Hanara told him that the tip had snapped off when he "popped the bottom doorto get in".[14] Claiming that he was texting a friend, Mr Marquet sent a text message toMr Clare telling him that Mr Hanara was at the flat. Mr Clare relayed that informationto Detective Bailey by text message sent at 10.35 am. Police were dispatchedimmediately and Mr Hanara was arrested at the premises on the charges of aggravatedburglary and possession of an offensive weapon and returned to prison. Mr Hanara'sDNA was later found on the protected edges of the shank, beneath the cloth wrappingand cord grip.[15] On 28 November 2014, Mr Hanara spoke with Ms Hemara by telephone fromprison:DH Heard from that cunt Caleb?EH Nah don't want to anymore.DH Fucken cunt (inaudible).EH What did you want to me to talk to him about?DH Oh nah, nah, nah actually I won't say nothing over this phone cos it'sbeing recorded.EH Yeah write to me.DH Fuck I think um, I think I'm gonna be in here for a bit.EH Yeah. Why did you go and do that?DH I didn't mean to.EH You did the stupidest things.DH I know but you know once I get something in my head I gotta followthrough.EH Yeah I guess so.DH That's just called real. [16] Based on this and other evidence, the jury found Mr Hanara guilty ofaggravated burglary and possession of an offensive weapon.Conspiring with Mr Otter to pervert the course of justice[17] The charge of conspiring to pervert the course of justice arose out ofMr Hanara's attempts, after being returned to prison, to procure false evidence fromMessrs Clare and Marquet with the assistance of a co-defendant, David Otter. We setout below a brief summary of some of the evidence called by the Crown to supportthis charge.[18] Mr Clare said that Mr Hanara telephoned him on numerous occasions fromprison and he received regular visits from Mr Otter pressuring him to assist in gettingMr Hanara released by making a favourable statement. On the first of these visits, MrClare said that in the early hours of the morning, Mr Otter came uninvited to the flat,kicked open his bedroom door and hit him in the face with a claw hammer. He saidthat Mr Otter told him that he had until Christmas to get Mr Hanara out of jail or "whatwas coming was unstoppable". He also mentioned "the big fella" (likely to be areference to a co-defendant, Teariki Tamoe).[19] On 28 November 2014, Mr Hanara discussed with Mr Otter by telephone howMr Clare's statement was progressing:DO Yeah. I got hold of that fucker [Mr Clare] again just a couple of daysago.DH Yeah.DO And I also spoke to Roger Phillips [Mr Hanara's lawyer], yesterday,the day before.DH Oh nice.DO Yep so um, I went up there last night to churn the cunt up but he wasn'taround, yep.DO But um, all he needs is a letter, he needs to go into the Court and justah, see that victim... oh what is it victimDH Victim Support.DO Yeah Victim Support and just tell them that he, everything's all okayand get them a letter to say, no it's not quite true and it's a bit blownout.DH Yeah, yeah but fuck yeah he should of, should've been done alreadythat's why I'm, I'm getting frustrated.[20] Mr Hanara telephoned Mr Clare the following day:DH is that thing all done?CC Bro yeah I can't get hold of your lawyer man he's gone away untilMonday now.DH Oh nah, nah you don't need to go to him.CC Well what I do?DH Just go to the Courthouse and go down to the thing and um, just, justdo just say that um, you know what I said before.CC Yeah.DH Yeah and then they just stamp it, Victim Support brother.CC Oh yeah cos um, Dave [Mr Otter] was just in like hard out trying toget me to go to your lawyer.[21] Mr Clare later received a statement prepared by Mr Hanara which he wantedhim to sign and give to his lawyer. This statement is dated 10 December 2014 andreads:My name is Caleb Jordan ClareI am writting this affidavit in support of my friend Depak Hanara's case. Firstof all I do not fear for my safety or that of anybody elses.Mr Hanara and I did have a disagreement over some false accusations hebeleaved I had said about him. We have since settled things.Not once did I take his letter seriously!But as a friend, knowing his history, I understand why had had written theletter and used the words he did.With Depak its the silence I would be more aware of. Rather than the wordshe may express out loud.With his history of violence together with his experience of prison, which ismore than half his life I believe it was good of him to express his frustrationout verbally. That is what they teach and preach in prison counselling if Irecall him saying in one of many conversations. The police have taken thisway too seriously and have ignored my response to decline their requests.We both just want this situation over.This statement is done of my own will.[22] Mr Clare said that he did not initially sign this statement but eventually did sofearing that he would otherwise be killed. He explained that he formed this belief afteran incident at Mr Otter's house. Mr Clare said that Mr Otter invited him to his house.He went there expecting to obtain a quantity of cannabis. However, on arrival, hefound Mr Otter and Mr Tamoe sitting at the dining room table with two or three stunguns laid out in front of them.2 After a short discussion, Mr Clare said that he wasattacked by Mr Tamoe with one of the stun guns. He said that he received multipleelectric shocks to his legs, back and neck and was stomped on as he lay on the ground.He said that Mr Tamoe "lost it" and tried to "shove" the stun gun down his throat.However, Mr Clare said he saw the front door was open and "ran for [his] life". Hesaid that he was left covered in welts and parts of his skin were burnt.[23] Mr Clare said that about 45 minutes later he saw Mr Otter in the car parkoutside his flat. He said that Mr Otter told him he could not stop anything like thishappening again unless he helped get Mr Hanara out of prison. Mr Clare said that hethought "the next step would be a bullet" and he should cooperate. He signed the2 Mr Clare referred to the stun guns as "tasers".statement prepared by Mr Hanara in front of a registrar at the Napier District Court on21 January 2015.[24] Mr Otter reported to Mr Hanara on 4 February 2015 that he had obtainedMr Clare's statement:DO Have you, when do you go back up brother I've got a letter here foryou from Caleb.DH Oh is it stamped?DO Yep.DH Oh mean, mean my brother.DO Yep I just, I just got it just a couple of days ago.DH Fuck thank you very much for it bro.DO So he don't fear for his life, he don't do this, he does do that, he wantsyou to succeed in all the dramas.DO Obviously you are going to change your plead to not guilty now.DH Oh nah I've always remained not guilty.DH But um, what about Enzo? Have you heard of Enzo?DO Don't know where he is brother.DH Um, because he said that he seen me with the shank, they're gonnause him to say its mine.DO Yep, okay nah sweet I'll found out where he is.[25] A few days later, on 6 February 2015, Mr Hanara telephoned Mr Otter again.Mr Otter reported that Mr Hanara's lawyer should have a copy of Mr Clare's statement.Mr Otter also advised that he had found out where "the other idiot lives" (most likelyreferring to Mr Marquet) and said that he would "go around and have a nice, a nicegentle chat to him".[26] On 13 February 2015, Mr Hanara again telephoned Mr Otter:DH But it's just the only thing that's gonna um everything else, allthose other charges are going to be dropped it's just that fucken um,the seven year jail sentence, the aggravated burglary.DO What did you burgle though?DH Nah, nah, nothing, no it's because um, they're trying to say thatentering a property with a weapon that's aggravated burglary butbecause Enzo saying that I had the weapon that's the only thing thatthey can they've got against me is his word saying that I had it,he's seen it in my possession.DO So what happens if he doesn't turn up to Court?DH Yeah then it's gone out.[27] About 34 minutes later, Mr Hanara telephoned Ms Hemara and asked her forMr Marquet's contact details:DH I just needed to try and contact fucking um, that cunt. Is, is Enzostill on Facebook?DH It's just he's the only cunt that I need to get a hold of because um,he's the one, in his statement he's goes to, to them that he's seen mewith the shank.EH Hhmm.DH And so that's the only the evidence that the cops are gonna try andum, prove at trial.EH Hhmm, well.DH But I'm, I'm sorting it anyway.[28] On 23 February 2015, Mr Hanara called Mr Otter who reported that he hadspoken to Mr Marquet the previous evening and that "she's all sorted again bro".Mr Hanara commented "everything should fall be sweet for me to get out then".[29] The jury found Mr Hanara guilty of conspiring to pervert the course of justicebased on this and other evidence.Attempting to pervert the course of justice[30] Mr Hanara pleaded guilty to the fifth charge of attempting to pervert the courseof justice. This arose out of Mr Hanara's contemporaneous attempts to persuadeMs Hemara to give false evidence in accordance with a statement he drafted for her tomemorise and repeat in court. The following extracts are sufficient to illustrate thestrength of the Crown case on this charge:Here is the statement to read!And also how you were at the flat [Mr Clare's address] prior to wensday5/11/14 and had Seen this plastic weapon looking thing in Enzo's room!They will get you to describe what it looks like.It will show the dury that Im being set up by Caleb & Enzo!But this is what ima ask of you: Give evidence that shows the Shank was upat the flats in Enzo's room prior to my release in November 5th 2014.This is what u maybe asked:Do you No how Caleb knows Dpac or the circumstances?"No" But he would Stay up at the flat Sumtimes which made it safefor us from the un-welcomed visitors that would come 2 see Caleb.Were you up @ the flats prior to wensday 5th Nov 2014?Yes It was the tuesday night we were all drinking. We all new Kain[Mr Hanara] was getting out the Next day.Have you ever seen this item befor? Show u picture.Yes I Have it was in Enzo's room the night we were drinking.I didn't touch it I saw it by his Bed on the drawer.White plastic long thing with string tied to it. Pointy on both edges.Did u ask what it was for?No never talked about it. I just saw it there.I can confirm that's the thing I saw there that night.[31] At the foot of this draft statement, Mr Hanara wrote the following instructions:Try to remember everything written in Blue.[3]Dont talk to me about this on the phone thats being recorded.W8 till I ring on the office One KYou will need to destroy this (Burn it) Dont let No1 C this. These.Its a must you get Rid of these. Only because its in My handwriting.Appellant's submissions[32] Although the conviction appeal relates to all three charges on which the juryreturned guilty verdicts, Mr Ross did not, at the hearing, pursue his submissionsregarding Mr Hanara's conviction for conspiring with Mr Otter to pervert the courseof justice. That was quite proper; the evidence to support that charge is overwhelmingand the appeal against conviction on that charge must be dismissed.[33] However, Mr Ross submits that the jury's verdicts on the aggravated burglaryand possession of an offensive weapon are unsupportable. He bases this submissionon the following analysis:(a) The Crown did not prove when or how the shank was manufactured,yet Mr Ross contends that this was "critically important".(b) The jury must have accepted that Mr Hanara manufactured the shankin prison because there was insufficient time for him to do so from thetime of his release until he arrived at Mr Clare's flat.(c) The evidence was insufficient to prove that Mr Hanara enteredMr Clare's flat without authority. Mr Ross argues that Mr Hanara hadan implied licence to be present because he had been a frequent visitorin the past and had not been told by anyone with authority to excludehim that he could not go there. Mr Ross contends that this implied3 The parts of the draft statement that were written in blue are indicated in the previous quote bybeing further inset from the left.licence became an express licence when Mr Marquet invitedMr Hanara into his bedroom.(d) There is no evidential foundation for a finding that Mr Hanara went tothe premises with the intention of assaulting Mr Clare, particularlygiven Mr Hanara's evidence that he knew that Mr Clare would be atwork at that time and went there to charge his mobile phone and to talkto Mr Marquet.[34] In summary, Mr Ross submits that the evidence is insufficient to support thefollowing essential elements of the charges:(a) Aggravated burglary:(i) entry without authority;(ii) with intent to commit an imprisonable offence in the building;and(iii) while in the possession of or using anything as a weapon.(b) Possession of an offensive weapon:(i) possession of an offensive weapon; and(ii) with an intention to commit an offence involving bodily injuryor threat or fear of violence.Application to introduce further evidence[35] Mr Hanara applies to introduce the following additional evidence in support ofhis appeal:(a) A report from the Department of Corrections stating that whenprisoners are released the procedure is for them to change out of prisonclothing into their own clothes. Although prisoners are not searched atthis time, the process is supervised. Departmental staff did not observeany weapon on Mr Hanara at that time.(b) A further report from the Department of Corrections stating there is nodocumented evidence of Mr Hanara holding a weapon while in prison.(c) A report from a forensic scientist at ESR confirming that the plasticcomponents of the shank are consistent with a knife and a fork similarto those used at Hawke's Bay Regional Prison.(d) Photographs of Mr Hanara's prison cell showing the absence of anygrinding marks on the walls.AnalysisEntry without authority?[36] The jury was entitled to reject Mr Hanara's evidence that he went to Mr Clare'sflat to charge his phone and to have a chat with Mr Marquet.[37] There was ample evidence to support an inference that, instead, Mr Hanarawent to Mr Clare's flat for the purpose of assaulting him and leaving him with scars.This is precisely what Mr Hanara said he intended to do in the letter he sent to Mr Clareshortly prior to his release — "leave u with a few Scares to remind u of Me c u'Reall' Soon". It is also what he told Ms Hemara on 2 November 2014 he intended todo — "I'm gonna go straight up there I'm gonna be fast about it, just poke him upa little bit I have to leave him with some scars". Mr Hanara's discussion withMs Hemara on 28 November 2014 provides further support that he went to Mr Clare'sflat with that intention. When she asked why he did it and accused him of doing "thestupidest things", Mr Hanara replied — "I know but you know me once I getsomething in my head I gotta follow through That's just called real."[38] The jury was also entitled to reject Mr Hanara's evidence that the door hadbeen left open. Mr Marquet said he locked it, as he had been told to do by Mr Clarefollowing Detective Bailey's visit the day before. Further, Mr Marquet's evidence wasthat Mr Hanara admitted that he had "pop[ped] the lock" with the shank.[39] Mr Ross nevertheless submits that Mr Hanara had an implied licence to enterthe flat because he had been there on numerous occasions in the past and had evenbeen invited to stay overnight. He submits that Mr Hanara therefore had authority toenter the premises even if his intent was to commit a crime there. Mr Ross emphasisesthat the elements of aggravated burglary are separate and distinct. The Crown mustprove that the entry was "without authority" and that it was "with intent to commit animprisonable offence". He contends that it would be wrong to conflate these elements.[40] This Court said in R v Keen that the issue of authority to enter premises turnedon the nature and extent of the authority and whether that authority was exceeded inthe circumstances.4[41] Even if Mr Hanara had an implied licence to enter the flat, that was only forsocial purposes. It is clear that any such authority did not extend to entering thepremises for the purpose of causing grievous bodily harm to one of the tenants anymore than it would extend to entry for the purpose of setting fire to the premises. Thisis not to conflate the elements of authority and intent, it simply recognises that anyimplied authority to enter was limited to certain purposes. So, if Mr Hanara had goneto the premises for the purposes he claimed, to charge his phone and chat toMr Marquet, he may have had authority to enter. However, it is clear that Mr Hanarahad no authority to enter for the purpose of causing grievous bodily harm to any of thetenants.[42] We are satisfied that there was sufficient evidence to support the jury'sconclusion that Mr Hanara entered the premises without authority.Possession of an offensive weapon?[43] We do not accept Mr Ross' submission that it was "critically important" for theCrown to prove when and how the shank was manufactured. There are many possible4 R v Keen [2008] NZCA 36 at [8].ways in which Mr Hanara could have come into possession of the shank. He couldhave made it in his cell or elsewhere in the prison. He could have smuggled the shankout on the day he was released or at some other time. He could have collected it fromsomeone else in the two-and-a-half-hour period between his release and his arrival atthe flat. However, it is not necessary to speculate about this. The Crown did not haveto prove when or how the shank came to be in Mr Hanara's possession because it wasnot an essential element of either charge. The Crown simply needed to prove beyondreasonable doubt that Mr Hanara used the shank to gain entry to the flat and intendedto assault Mr Clare with it. There was more than sufficient evidence to justify thejury's conclusion that this was proved beyond reasonable doubt.[44] It follows that the proposed further evidence is not cogent, even if it were fresh.It takes Mr Hanara's case nowhere. The application to introduce further evidence mustaccordingly be declined.Result[45] The application for leave to appeal out of time is granted.[46] The application to introduce further evidence in support of the appeal isdeclined.[47] The appeal against conviction is dismissed.[48] The appeal against sentence is also dismissed.Solicitors:Cathedral Lane Law, Napier for AppellantCrown Law Office, Wellington for Respondent