MCGIRR v R [2021] NZCA 635

MCGIRR v R [2021] NZCA 635 [30 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA102/2021[2021] NZCA 635BETWEEN JOSEPH DOUGLAS MCGIRRAppellantAND THE QUEENRespondentHearing: 11 November 2021Court: Brown, Mallon and Moore JJCounsel: A J Bailey for AppellantM R L Davie for RespondentJudgment: 30 November 2021 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following the death of Lauren Biddle in a spa pool at his home, apparentlyfrom an overdose of MDMA, Mr McGirr was found guilty of attempting to pervertthe course of justice by removing her clothing from his house and concealing it downa bank at his property. He appealed his conviction on the ground that a miscarriage ofjustice occurred because of a jury misdirection.Factual background[2] At a gathering in October 2018 at Mr McGirr's Christchurch property theappellant and Ms Biddle consumed alcohol, cannabis and MDMA, a Class Bcontrolled drug which belonged to Mr McGirr. At the time Mr McGirr was serving acommunity-based sentence with the condition that he not consume alcohol. Sometime after midnight while they were in his spa pool Mr McGirr realised that Ms Biddlewas under the water, apparently deceased.[3] Mr McGirr and the other person still present, Mr Higginson, gave conflictingevidence as to what occurred. Mr Higginson said Mr McGirr told him that Ms Biddlewas dead. Mr Higginson wanted to call an ambulance but Mr McGirr was insistentthat should not happen. Mr Higginson tried to revive Ms Biddle by the spa and againspoke to Mr McGirr about calling for help. According to Mr Higginson, Mr McGirrsaid: "You're not fucken ringing the police You've gotta take her somewhere else."Mr Higginson put Ms Biddle in his car and left the property. He then summonsedemergency services but Ms Biddle could not be revived.[4] By contrast Mr McGirr said that it was he who had attempted to reviveMs Biddle by administering CPR. Having noticed that Mr Higginson was alsounconscious in the spa pool, Mr McGirr then rescued him and alternated betweenMr Higginson and Ms Biddle in his resuscitation efforts. Once Mr Higginson wassuccessfully revived, Mr Higginson took Ms Biddle away to hospital. Mr McGirrexplained that he could not leave the property on account of his curfew.[5] What was not in dispute is that after Mr Higginson left with Ms Biddle,Mr McGirr proceeded to tidy up alcohol bottles and cans and put the cover on the spapool. He removed various items of Ms Biddle's clothing and her bag to a bush areadown a bank on his property and used a shovel to conceal them beneath dirt and leaves.[6] Mr McGirr faced a trial on four charges: two of supplying a Class B controlleddrug (to Mr Higginson and Ms Biddle), one charge of attempting to pervert the courseof justice and one charge of cultivating cannabis. He pleaded guilty to the last of thoseat the commencement of trial. He gave evidence at the trial. At the conclusion of thetrial, Mr McGirr was found not guilty of both charges of supplying a drug but guiltyof attempting to pervert the course of justice.The grounds of appeal[7] The grounds of appeal in Mr McGirr's notice of appeal were that the Judgemisdirected the jury as to the grounds for conviction (albeit in an unspecified manner)and erred in ruling inadmissible the proposed evidence of a medical expert. The latterground was not pursued. The written submissions of Mr Bailey (who was not counselat trial and had not filed the notice of appeal) argued that a miscarriage of justiceoccurred because the Judge omitted to direct the jury that they needed to be sureMr McGirr interfered, not only with the police investigation into Ms Biddle's death,but also with the prosecution which might have arisen out of the investigation.[8] In the course of the hearing Mr Bailey expanded on the argument byhighlighting that Mr McGirr's efforts to avoid the police coming to his property mayhave been motivated not by a desire to prevent inquiry into Ms Biddle's death but byone or more other considerations.[9] This Court must allow the appeal if satisfied that a miscarriage of justice hasoccurred, being an error that has created a real risk that the outcome of the trial wasaffected or has resulted in an unfair trial.1AnalysisThe question trail[10] The focus of the argument advanced in the written submissions was thequestion trail pertaining to the charge of attempting to pervert the course of justice.It read:1 Criminal Procedure Act 2011, s 232(2)(c) and (4).CHARGE 3: ATTEMPTING TO PERVERT THE COURSE OF JUSTICEThe Crown Solicitor charges that Joseph Douglas McGirr between 21 October 2018and 22 October 2018 at Christchurch wilfully attempted to pervert the course ofjustice by concealing the clothing of Lauren Mikaila Biddle.1. Are you sure that between 21 and 22 October 2018, Mr McGirr removedMs Biddle's clothing from his house and concealed it down a bank at hisproperty?If "yes" go to question 2.If "no" find Mr McGirr "not guilty" on this charge.2. Are you sure that at the time Mr McGirr concealed the clothing, he knewthat a Police investigation into Ms Biddle's death was either underway, orinevitable?If "yes" go to question 3.If "no" find Mr McGirr "not guilty" on this charge.3. Are you sure that concealing Ms Biddle's clothing had a tendency to hinderor obstruct the Police investigation into Ms Biddle's death?NB. It is not necessary that concealing the clothing did hinder orobstruct the Police investigation, only that it had a tendency to do so.If "yes" go to question 4.If "no" find Mr McGirr "not guilty" on this charge.4. Are you sure that at the time of concealing Ms Biddle's clothing, Mr McGirrwas intentionally trying to hinder or obstruct the Police investigation intoMs Biddle's death?If "yes" find Mr McGirr "guilty" on this charge.If "no" find Mr McGirr "not guilty" on this charge.[11] Proceeding from the premise that a police inquiry does not in itself form partof the "course of justice", Mr Bailey contended that the Judge erred in his formulationof questions 2, 3 and 4 by omitting any reference to the avoidance of judicialproceedings. He analysed in some detail three decisions of this Court which hesubmitted comprehensively state the relevant law: Meyrick v R,2 McMahon v R3 andR v MPP.4 It will suffice to refer to Meyrick which Mr Bailey said made it clear thatthe moving or taking possession of physical items that a person knows police want to2 Meyrick v R CA513/04, 14 June 2005.3 McMahon v R [2009] NZCA 472.4 R v MPP [2017] NZCA 314, (2017) 28 CRNZ 204.obtain for investigative purposes, even when done for the purposes offrustrating/hindering/obstructing the police, is not sufficient.[12] He submitted that one of two additional factors must exist: either a searchwarrant must already be in existence for the items and that is known by the defendant,or the defendant's actions must have the tendency and intention to adversely affectactual or contemplative court/tribunal proceedings. Emphasis was placed on thefollowing passage from Meyrick:5The "course of justice" undoubtedly includes the administration of justice bypublicly established tribunals, see, for instance, Rogerson. It is sometimessaid that the "course of justice" extends to cover police investigations.There is no doubt that criminality attaches to actions which have thetendency (and are intended) to adversely affect court proceedings (orindeed prevent such proceedings being commenced) even though thoseactions are in the context of police investigations, and occur prior toproceedings being commenced But the fact remains that the tendencyand intention which are critical must be addressed to actual orcontemplated proceedings before publicly constituted tribunals, a pointwhich emerges clearly from Rogerson.[13] It was Mr Bailey's contention that questions 2 to 4 of the question trail shouldinstead have been phrased similar to the following:Q2. Are you sure that at the time Mr McGirr concealed the clothing, heknew that judicial proceedings might be instituted in respect to Ms Biddle'sdeath?Q3. Are you sure that concealing Ms Biddle's clothing had a tendency toadversely affect judicial proceedings in respect to Ms Biddle's death (or had atendency to prevent judicial proceedings being commenced)?Q4. Are you sure that the concealing of Ms Biddle's clothing wasundertaken with a view to adversely affecting judicial proceedings (orpreventing judicial proceedings being commenced) in respect to Ms Biddle'sdeath?[14] He accepted that, given the circumstances of Ms Biddle's death, a policeinvestigation of some sort was likely but submitted that made it all the more importantfor the focus on Mr McGirr's actions to be on possible judicial proceedings rather thana police investigation. There was also no reference to judicial proceedings in theCrown case. Rather it was heavily reliant on Mr McGirr's actions being motivated by5 Meyrick v R, above n 2, at [42] (emphasis as in counsel's submissions).a police investigation, Mr Bailey drawing attention to extracts from the prosecutor'sopening, cross-examination and closing which made reference to the inevitability of apolice investigation into Ms Biddle's death.[15] Mr Davie for the Crown acknowledged that there are cases in which the trialJudge has directed the jury in terms of a defendant's intent as to a prosecution whichmight follow from a police investigation, but submitted that the omission to do so inthis case did not result in a miscarriage of justice. He drew attention to the judgmentof the Court of Appeal of England and Wales in R v Rafique,6 where defendants whodisposed of a firearm and ammunition following an accidental shooting which killeda person were found guilty of attempting to pervert the course of justice.[16] On appeal the Court of Appeal of England and Wales considered that, althoughthe jury direction was erroneous because it conflated police investigations with thecourse of justice, the misdirection was not material, stating:7However, on the facts of the present case, it must follow from a finding thatthere was an intention to impede police investigations that there was anintention to pervert the course of public justice. On these facts, there can beno explanation for intentionally impeding police investigating other than anintention to pervert the course of public justice. When asked, [counsel forMr Rafique] could offer no other explanation. On the directions given, thejury clearly rejected the appellants' explanations as to why they disposed ofthe shotgun cartridges and concluded that the appellants intended to impedepolice investigations. In those circumstances, there was no materialmisdirection.[17] Emphasising the similarity of the present case to Rafique, Mr Davie submittedthat as Mr McGirr intended to hinder or obstruct the police investigation the irresistibleinference was that he intended to hinder or obstruct the prosecution as well. It was nota case like Meyrick where the relevant conduct may simply have been undertakensolely to annoy the police.8[18] In response to the Crown's reliance on Rafique, Mr Bailey in oral submissionsargued that the English Court of Appeal's decision relied on the particularcircumstances of that case. Specifically he drew attention to the comment that counsel6 R v Rafique [1993] QB 843 (CA).7 At 852.8 See Meyrick v R, above n 2, at [47].for Mr Rafique could offer no other explanation for intentionally impeding a policeinvestigation other than an intention to pervert the course of justice. His argumentappeared to be that Rafique could be distinguished as in the current case there werealternative explanations for Mr McGirr's actions. It is appropriate to address thatthread of the submissions before returning to whether there was a material omissionin the jury directions that amounts to a miscarriage of justice.Alternative explanations[19] The tenor of the argument developed by Mr Bailey in the course of the hearingwas that Mr McGirr's actions may have been motivated not by a concern about aninvestigation into Ms Biddle's death but by other considerations.[20] He first suggested that Mr McGirr clearly had reason for not wanting to drawattention to his home or for not wanting people of authority to be aware of his livingsituation. He then suggested that clearly an operative matter on Mr McGirr's mindwas his cultivation of cannabis, noting that he had discarded the plants. Anotherpossibility was that, given there had been a death, suspicion, gossip or moral blamewere possible additional reasons why he would not want to be connected with such anunfortunate event. In the course of criticising a reference in the Crown's submissionsto the supply of drugs charges on which Mr McGirr was acquitted, Mr Bailey said thathe was not encouraging the Court to try to work out with precision what Mr McGirrwas doing when there were a number of potential operative factors on his mind at therelevant time.[21] Mr Bailey's argument might have gained traction in circumstances where thequestion trail had been non-specific or if Mr McGirr had not given evidence. Howeverthe question trail was neither silent nor ambiguous concerning the focus of thecontended inevitable police investigation: it specifically referred to an investigationinto Ms Biddle's death. Hence the proposition developed in the course of argumentcould not be cast as a criticism of the question trail nor of the summing-up, as bothensured the jury considered whether there was an alternative explanation.[22] Having regard to what it was submitted Mr McGirr's intentions might havebeen when he acted as he did subsequent to Mr Higginson having removed Ms Biddlefrom the property, in reality this argument could only be construed as an attack on thejury's verdict. The hurdle which this argument faces is that Mr McGirr gave evidenceand the jury reached its verdict having considered that evidence. As the Judgeobserved in the summing-up:Whilst Mr McGirr accepts that he put the clothes down the bank, he denies hehad any intent to interfere with the course of justice. He, to use his words,was "freaking out", having consumed alcohol and drugs and having justwitnessed a person die before his eyes. Specifically, he had not turned hismind to whether there would be a police investigation and had no wish at allto interfere with one.[23] That description was reflected in the evidence of Mr McGirr. Hiscross-examination concluded in this way:Q. Okay and you knew that there would be a police investigation in tothis young woman's unexpected death, didn't you?A. It wasn't until I came up from the bushes and I saw the police thatboth eyes and the state of mind to actually realise that and the realityof the situation really dawned on me.Q. And you knew there would be a police investigation in to her deathbecause she had consumed drugs.A. Well you would have thought that there wouldn't be any drugs leftaround the place if that was actually the case.Q. Okay and at the time you removed her clothing and bag etc, you didthat because you wanted to hide the fact of her being at your housethat morning or that evening and in so doing, hinder the policeinvestigation? That's correct, isn't it?A. Incorrect. I had an innate desire to do something reverential with herclothing.A few answers previously he had referred to his intention as being "purely toconsecrate what was left of her belongings".[24] Indeed the evidence that he felt that he needed to do something tocommemorate Ms Biddle was led in his examination-in-chief:Q. And we've heard evidence during the Crown case that you threw theclothes down the bank. Why did you do that?A. Um, well I was going down, I went past the clothesline, I went downthe hill, just threw her stuff on the ground and I think there was oneshovel full of leaves and what not, um, yeah, I just sat down and Ithink I tried to push it into a bit of a cross and I think I said the23rd Psalm — the Lord is my Shepherd. I just kind've felt as thoughsomething lifted, you know, it all seems a bit weird, you know, lookingback but it's kind've real when you have someone die right in front ofyou. You feel as though you really need to do something, yeah, it wasjust a peaceful moment really down in the native bush with her stuffand, yeah, I was pretty upset to put it mildly.[25] Not only did Mr McGirr provide that explanation for burying Ms Biddle'sbelongings, contrary to Mr Bailey's submission he volunteered the evidence that hewas not worried about a police investigation into his cannabis plants. In the course ofcross-examination on the actions he took in tidying up his property, the followingexchange occurred:Q. And you missed the cannabis too in your rush didn't you, the cannabisleaf?A. No, obviously I wasn't worried about a police investigation if that'swhat you're trying to get at.[26] In his closing address Mr McGirr's then counsel described Mr McGirr'sactions in this way:As far as the charges of attempting to pervert — or the charge of attemptingto pervert the course of justice and supplying the ecstasy are concerned, I'veanalysed Joe's actions and feelings on the night at some length, I'm sorry I'vegone on so long, but it's very important that you grasp how he felt that nightand you saw it, indeed, in the witness box, and when you take all I've said intoaccount, I do not think you will be left in any doubt that what Joe McGirr didon the 21st of October 2018 and the following morning, was not an attempt toconceal Lauren's clothing with a view to hiding something, although heavenknows what from the police, it was the reaction of a traumatised man to atragic event which had occurred on his property and an action which, as thenature of that event sank in, he immediately told the police about.[27] It is apparent from the jury's verdict that they did not accept the explanationoffered by Mr McGirr. They must have answered questions 3 and 4 in the affirmative.That outcome was unsurprising viewed against the totality of the evidence. In ourview there is no basis for the implicit submission that the jury's verdict wasunreasonable on the evidence as Mr McGirr did have an alternative explanation.[28] Nor could the argument be cast as a criticism of the Judge's summing-up whichvery fairly recorded Mr McGirr's explanation, in particular:[114] After Mr Higginson and Ms Biddle left, Mr McGirr says that hecleaned up a bit of rubbish from the party in a, I guess, disorganised andemotional state and, in that process, he came across Ms Biddle's clothing.This heightened his already emotional state. He ended up taking the clothesdown the hill and partially covering them using a spade with leaves as a markof respect and reverence. He said it was actually a reasonably peacefulmoment and her spirit seemed to lift.[117] Mr McGirr told you that he then went down and had a sleep near thehut with a duvet to compose himself. He came up with the police a little whilelater.[118] Again, his actions and reasons for doing all of that in the cold light ofthe courtroom might seem somewhat illogical but, given his intoxicated stateand the trauma of what had just occurred that night, the defence submits thathis explanation and motivation is understandable. Mr McGirr denies that hewas attempting to hinder the police investigation in concealing the clothing.He had not even contemplated such an investigation must less attempted toobstruct it.Conclusion[29] It is clear that police investigations into possible offences against the criminallaw or a disciplinary code do not form part of the course of justice. Nevertheless, asthe High Court of Australia recognised in R v Rogerson, an act calculated to misleadthe police during investigations may amount to an attempt to pervert the course ofjustice.9 The joint judgment of Brennan and Toohey JJ10 referred to a passage in theCanadian case Kalick v R,11 a bribery case, which stated that it is quite immaterialwhether the police officer intended or contemplated instituting a prosecution and thatthe due administration of justice is interfered with quite as much by improperlypreventing the institution of a prosecution as by corruptly burking one already begun.Brennan and Toohey JJ said:12We respectfully agree. The gravamen of the offence of an attempt to pervertthe course of justice is an interference with the due exercise of jurisdiction bycourts and other competent judicial authorities. As the courts exercise their9 R v Rogerson (1992) 174 CLR 268 at 283–284.10 Who with Mason CJ and Deane J comprised the majority; McHugh J dissented.11 Kalick v R (1920) 61 SCR 175 at 183.12 R v Rogerson, above n 9, at 284.necessary and salutary jurisdiction to hear and determine charges of offencesagainst the criminal law only when their jurisdiction is invoked, an act whichhas a tendency to deflect the police from invoking that jurisdiction when it istheir duty to do so is an act which tends to pervert the course of justice.[30] In the present case where a young woman had died in a spa pool havingconsumed drugs it was appropriate to describe the prospects of a police investigationas inevitable. Such inevitability was reflected in the second question of the questiontrail. The conduct which was alleged to amount to the attempted perversion of thecourse of justice was the hindering or obstructing of the investigation. In our view itwas appropriate and desirable for the question trail to focus specifically on thatconduct. Appropriately the Judge made that focus clear in his introductory commentsin the relevant part of the summing-up:[34] Right, I will move now to the third charge, which is attempting topervert the course of justice. This centre on the allegation Mr McGirrintentionally tried to obstruct or hinder what he knew was the inevitable policeinvestigation into Ms Biddle's death by concealing her clothing down thebank.[31] It would have been preferable, so as to avoid the conflation recognised inRafique, for the question trail to have referred to a police investigation which mighthave resulted in a prosecution. However we do not agree that it was necessary for thequestion trail to be formulated in the terms proposed by Mr Bailey which omits anyreference to the inevitable police investigation.[32] We also do not accept Mr Bailey's attempt to distinguish Rafique on the basisthat Mr McGirr could offer an alternative explanation for his actions other thanintending to pervert the course of justice. That was a consideration for the jury whichit rejected during trial. Rather, as Mr Davie submitted, the fact that Mr McGirrintended to hinder or obstruct the police investigation in the circumstances leads to theirresistible inference that he also intended to hinder or obstruct a possible prosecution.[33] Having regard to the totality of the question trail including the introductoryparagraph and to the terms of the Judge's summing-up which made reference to it, weare not satisfied there was any material misdirection which could be viewed asresulting in a miscarriage of justice.Result[34] The appeal is dismissed.Solicitors:Hansen Law, Christchurch for AppellantCrown Law Office, Wellington for Respondent