PLANT V R [2016] NZCA 161

PLANT V R [2016] NZCA 161 [2 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA102/2015[2016] NZCA 161BETWEEN KEVIN RILEY PLANTAppellantAND THE QUEENRespondentHearing: 15 February 2016Court: Stevens, Simon France and Ellis JJCounsel: A J D Bamford for AppellantM J Lillico for RespondentJudgment: 2 May 2016 at 3.00 pmJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)Introduction[1] Mr Plant was convicted following a jury trial of wounding with intent to cause grievous bodily harm and theft of a spade, the weapon used to inflict the harm. He was sentenced by Judge Zohrab in the Nelson District Court to a term of sixyears and six months' imprisonment.11 R v Plant [2015] NZDC 1690.[2] Mr Plant appeals his conviction on the basis that evidence that he was in prison with two defence witnesses was improperly admitted. He appeals the sentence on the basis that Judge Zohrab should have recused himself from sentencing, and that the Judge sentenced on an incorrect assessment of the trial evidence.The facts[3] Mr Plant was part of a group of three walking along a Nelson street early one morning. The complainant was walking the other way. The Crown case was that the complainant commented on the fact that Mr Plant was carrying a spade. Allegedly already in an angry frame of mind, Mr Plant lashed out with the spade, striking the complainant in the head.[4] The defence was one of defence of another. It was said that the complainantand a second member of Mr Plant's group had confronted each other. Thecomplainant pulled out a knife, and Mr Plant acted in defence of his friend. The complainant denied having a knife.[5] In support of his case Mr Plant called two witnesses to give information about the knife. Mr Tamati Anderson testified he was staying at the same backpacker accommodation as the complainant. He says he was awoken and told the complainant was downstairs bleeding from a head wound. When he went down to the kitchen the complainant was being assisted by another resident. Mr Anderson testified that he saw the complainant pass over a knife to this other resident and asked him to get rid of it.[6] The second witness was Mr Harjinder Singh. Mr Singh said he was walking along the street where the incident occurred. He said he saw the group of three and hid behind a car, not wanting to be seen. From there he witnessed the incident. He said another man approached the group, there was an altercation, and the single mansaid "Do you want me to stab yous?" The description thereafter was not that clearbut made it plain the complainant was waving a knife around. Mr Singh said he then saw the blow with the spade.Conviction appealThe challenged evidence[7] The Crown wished to advance the proposition that the evidence of these two witnesses was a concoction arranged between Mr Plant and the witnesses. Mr Plant had been in custody and the opportunity to concoct had arisen when he shared prison space at separate times with each of the witnesses.[8] The Crown signalled this line of questioning and the Judge ruled that the Crown should first attempt to establish opportunity for concoction without specifically mentioning the venue. This direction was followed but on each occasion was unsuccessful. Accordingly, the complete context, including the time Mr Plant was in custody, emerged.[9] Mr Anderson, during the "unidentified venue phase", denied having contactwith Mr Plant. It was put to him he had had regular contact over the past month and this was rejected. It was then put to him that he had been remanded in custody atChristchurch Men's Prison at the same time as Mr Plant, and they were in the same wing and free to associate. Mr Anderson acknowledged this was so, but denied discussing the case with Mr Plant.[10] A similar process occurred with Mr Singh. He accepted he had met Mr Plant a couple of times since May. It was put to him that there had been more opportunities, but this was denied. At some point Mr Singh volunteered that he had shared a cell with Mr Plant, and from there the questioning about the opportunity presented by these circumstances progressed. Mr Singh denied discussing the case with Mr Plant, and indeed denied talking to Mr Plant. Mr Singh was also questioned about his own convictions for dishonesty.[11] As might be expected, during his summing up, the Judge on several occasions directed the jury to ignore the prison context. It was stressed that the only purpose of the evidence was to establish the opportunity to concoct the evidence.Discussion[12] Mr Bamford for Mr Plant submits that the evidence was prejudicial and unnecessary. He does not criticise the directions given by the Judge, but submits there was still sufficient prejudice to mean the trial miscarried.[13] There is nothing in the point. Mr Bamford accepts that it was legitimate to explore the possibility of fabrication between the defendant and the witnesses. That being so, what happened thereafter cannot be criticised. It is not necessary to set out the numerous passages where the Judge directed the jury about the purpose of the evidence, and how it should not be used.[14] The present situation is not one of inadvertent disclosure where inadmissible evidence is admitted, and an assessment is then required of its impact on trial. Rather, it is the not uncommon case where prejudicial material is necessarily and properly admitted in order that there is a fair testing of evidence directly relevant to the charges. The only requirements in such situations are to ensure the prejudicial material is confined to that which is necessary and that there are appropriate directions.[15] The nature of the cross-examination in the present case was very much on the opportunity for collusion and whether that happened. The venue had to be put in order to extract from the witnesses that the opportunity existed and what it involved(for example, hours together in a "day room"). Thereafter, the focus was on what contact actually occurred. The Judge's appropriate directions about the purpose of the evidence would only have served to reinforce that which would have been already quite apparent to the jury.[16] For completeness we observe that a point was taken about the prejudice involved in taxing Mr Singh with his previous convictions. Again, however, this was an entirely orthodox exercise which focused on matters which legitimately went tothe witness's credibility.[17] The conviction appeal is therefore dismissed.Sentence appeal[18] The appellant challenges the factual basis on which he was sentenced, contending that the verdict should have been interpreted by the trial Judge as a case of excessive defence of another, rather than one of not acting in defence at all.[19] The first basis raised in support of this is the rather unusual ground that the trial Judge was biased and should have recused himself from the sentencing. It seems that, in 2014, Judge Zohrab was case-managing a summary prosecution of Mr Plant. Mr Bamford at that time had asked the Judge whether he should hear the case because of prior knowledge of Mr Plant, having previously presided over another prosecution in which an adverse credibility finding was made against Mr Plant as a key witness. Mr Bamford did not make a formal recusal application and there was accordingly no ruling from Judge Zohrab but he noted on the file:"unable to be heard in front of Judge Zohrab".[20] A similar inquiry was not made on this occasion with the Judge, and obviously the Judge felt no need to recuse himself.2 The file notation in 2014 provides no basis for further inquiry. It does not necessarily mean there existed a reason to recuse. Sometimes a judge, if an inquiry such as Mr Bamford's is made,will organise for another judge to sit where that can be easily accommodated and no concern as to "judge-shopping" exists. It does not mean Judge Zohrab could not sit; just that he was willing to accommodate the concern.[21] The underlying basis for recusal, namely the Judge having previously presided over a trial involving the same defendant, is not in itself a sufficient basis for recusal. In R v Taite this Court observed that judges are frequently called on to sentence those who have appeared before them previously.3 The Court added that far from being a disqualifying factor, it is something that can often assist the process.2 This Court in Manton v R CA320/95, 23 March 1996 recognised that a Judge may recuse herself subsequent to trial and prior to sentencing if a previously unknown basis emerges.3 R v Taite (1998) 16 CRNZ 10 (CA) at 16.[22] The broader topic of recusal was recently discussed by the Supreme Court inA (SC 106/2015) v R.4 The issue in that case did not involve a previous credibility finding; rather it was whether an appellate Judge could sit when a previous decision of that Judge on the same type of issue was under challenge. However, the clear tenor of the discussion, and the authorities therein identified, is that the previous event must have disclosed an opinion or conclusion in sufficiently firm terms as to suggest the Judge could not be objective on the present occasion. There is nothing here to suggest that standard was engaged.[23] As for the factual challenge to the basis of sentencing, fact-finding is a necessary and standard task of a trial judge when sentencing. It is trite to observethat he or she is best placed to undertake that task. The Judge's conclusion here wasfully open to him. He heard submissions on the point and explained fully why he considered the complainant did not possess a knife. The Judge's reasons included apreference for the evidence of witnesses who were independent and not affected by alcohol. He also analysed Mr Plant's police interview and identified why he thoughtaspects of it were not credible. Finally, the defence witnesses were considered and their evidence put to one side for clear reasons.[24] We see no basis on which to differ from the Judge's carefully consideredassessment of the evidence. In the context of a sentencing, the reasons are very thorough. They logical and fairly identify the unlikely coincidences underpinning the defence theory.[25] There is no challenge to the sentence if the factual basis on which the Judge sentenced is upheld. The sentence appeal is accordingly also dismissed.Result[26] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent4 A (SC 106/2015) v R [2016] NZSC 31.