HENARE v NEW ZEALAND POLICE [2018] NZHC 65

HENARE v NEW ZEALAND POLICE [2018] NZHC 65 [7 February 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-46[2018] NZHC 65MICHAEL CAMPBELL HENAREvNEW ZEALAND POLICEHearing: 7 February 2018Appearances: S Jefferson for AppellantM Mitchell for CrownJudgment: 7 February 2018ORAL JUDGMENT OF CHURCHMAN J[1] This is an appeal by Michael Campbell Henare. Mr Henare was found guiltyof burglary of a residential garage in Napier at a Judge alone trial before Judge A JAdeane at the Napier District Court on 5 September 2017.1 The charge was broughtunder s 231(1)(a) of the Crimes Act 1961. He was later sentenced to eight months ofhome detention with six months' post-detention conditions and ordered to payreparation of $2188.2[2] Mr Henare now appeals his conviction on the basis that there was insufficientevidence to establish his guilt beyond reasonable doubt. Counsel for Mr Henare,1 R v Henare [2017] NZDC 29004.2 R v Henare [2017] NZDC 26514.Mr Jefferson, submits that the Judge erred in his assessment of the evidence to suchan extent that a miscarriage of justice has occurred.[3] The Crown represented by Ms Mitchell opposes the appeal on the basis thatfaced with an incomplete alibi, DNA evidence placing Mr Henare at the scene duringthe relevant time period the burglary occurred and the absence of any plausiblealternative explanation for his DNA being found on a cigarette butt located at the sceneof the burglary, the conclusion of the District Court Judge was properly available tohim on the evidence.[4] By way of factual background the appellant, having recently returned fromAustralia, presented to mental health services with his mother on 4 May 2015. He wasassessed and sent home only to return on 6 May 2015 when he was admitted to thecrisis respite facility Te Whare Aronui in Hastings.[5] The records of Te Whare Aronui show a note at 2.45pm on 7 May 2015 thatthe appellant had been out of the unit twice in the morning and that his health haddeteriorated such that he was then placed under constant surveillance.[6] On 8 May, the appellant attended a meeting with his family at the Napier HealthCentre. As Ms Mitchell has noted in her oral submissions it is not clear exactly whichfamily members attended the meeting neither is it clear who, if anyone, accompaniedMr Henare to and from the meeting. Te Whare Aronui's notes record his return at 3pmon 8 May 2015. His condition further deteriorated. A compulsory inpatient treatmentorder was made and he was admitted to the mental health inpatient service, remainingin hospital until 27 May 2015.[7] The complainant's garage was burgled sometime between 4.30pm on Thursday7 May 2015 and 2.20pm on Saturday 9 May 2015. The appellant's DNA was on acigarette butt located in the garage.District Court decision[8] There was only one piece of circumstantial evidence in issue in this case. Atailor-made cigarette butt had been left on a bench in the garage and it had burnt out.Photographs of the garage, including one of the bench with the cigarette butt on it wereproduced in the District Court hearing. The cigarette butt was examined by a scientistand DNA material was found which, on statistical analysis, was determined to renderit 6 x 1013 greater likelihood that this DNA originated from Mr Henare rather thanfrom another person selected at random from the general New Zealand population.The Judge found that this therefore constituted strong evidence to support theproposition that the DNA on the cigarette butt came from Mr Henare.[9] Mr Henare's defence was primarily one of alibi with evidence presented byMr Pearce, the psychiatric nurse responsible for Mr Henare's care. His informationregarding Mr Henare's movements during the dates of 6 to 9 May 2015 came frommental health records.[10] As noted in para [8] of the written submissions filed on behalf of the Police,under cross-examination, Mr Pearce accepted that he had no direct knowledge of theday to day procedures at the facility in question since he had last worked there in 2007.He acknowledged his evidence about Mr Henare's movements was based solely offentry notes provided by the facility. He also acknowledged that those entry notes werenot complete, for example, because they did not contain any record of Mr Henareleaving the facility on the morning of 8 May 2015, despite his own personalknowledge that Mr Henare did in fact do so to attend a medical appointment in Napieron that day.[11] Mr Pearce also acknowledged that there was a gap of some three hours betweenthe meeting at the Napier Health centre and Mr Henare's return to the facility. FurtherMr Pearce acknowledged that Mr Henare had wandered off from the facility twice on7 May 2015 after going outside for a cigarette.[12] The Judge determined that the records of Te Whare Aronui had beenimperfectly kept. While Mr Henare had been interviewed by a doctor at the NapierHealth Centre on the morning of 8 May, there was no record of him being released toattend this medical meeting. The next record of his whereabouts was at 3.00pm, whenhe was readmitted. Although a decision had been made to place him under closesupervision, there is no evidence as to the quality of that supervision until the makingof the compulsory treatment order and his return to Te Whare Aronui at 3.00pm 8 May.[13] The Judge's conclusion was that the evidence, therefore, pointed towards onlyone rational end conclusion: that Mr Henare was in that garage during the periodwithin which the burglary was committed.[14] In the absence of any evidence to the contrary, the Judge found that Mr Henarehad been at least one of those who perpetrated the burglary.Relevant law[15] An appeal against conviction in a Judge-alone trial is governed by s 232(2)(b)of the Criminal Procedure Act 2011. That provides:232 First appeal court to determine appeal(2) The first appeal court must allow a first appeal under thissubpart if satisfied that,—(b) in the case of a Judge-alone trial, the Judge erred inhis or her assessment of the evidence to such an extentthat a miscarriage of justice has occurred.[16] A "miscarriage of justice" is defined as meaning any error, irregularity, oroccurrence in or in relation to or affecting the trial that:3(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[17] An appeal against conviction proceeds by way of rehearing. While I mustcarefully consider all the matters that were before Judge Adeane, I must reach my owndecision. If I conclude Judge Adeane was wrong, my decision must prevail.[18] I must also be mindful of the limitations involved in not seeing or hearingdirectly from the witnesses,4 although I would note that in this case given the nature3 Criminal Procedure Act 2011, s 232(4).4 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].of the trial that is not a matter of significance. I should only interfere with the factualfindings of the trial judge "in exceptional circumstances".5AnalysisAlibi defence[19] The appellant, through Mr Jefferson, submits firstly, that there was no basis onwhich to question the quality of the supervision at Te Whare Aronui. The fact thatMr Henare had left the unit twice in the morning of 7 May 2015, before the offencewas said to have been committed, was noted at 2.45pm and he was thereafter placedunder constant surveillance. It was submitted that he only left the facility to attend anassessment in Napier.[20] It was further submitted that there was little if any likelihood that during theafternoon and evening of 7 May, while under what was said to be constantsurveillance, Mr Henare could have left Te Whare Aronui and not been missed.Furthermore, it was submitted that it was equally unlikely that during his absence fromthe facility, between attending the medical assessment and returning to the unit at3.00pm, Mr Henare could have been involved in the burglary of the complainant'sgarage which would have involved taking away a quantity of property.[21] On the other hand, counsel for the Crown, Ms Mitchell, has submitted thatMr Henare's presence at Te Whare Aronui was not a complete alibi, given that therewere clearly periods of time during the relevant date range when his whereabouts wereunknown. The evidence of Mr Pearce could not exclude Mr Henare's presence in thecomplainant's garage at some time on 8 May.[22] During the course of his oral argument Mr Jefferson acknowledged that thealibi put forward by Mr Pearce on behalf of Mr Henare was incomplete.[23] I accept the submissions of the Crown. While Mr Henare had been placedunder "constant surveillance" at Te Whare Aronui from 2.43pm on 7 May, there is no5 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017]NZHC 3127 at [10].record of his leaving the facility for his medical meeting on the morning of 8 May. Wedo not know at what time he left the facility and, while his family attended the meeting,there is nothing to indicate who, if anyone, accompanied him to and from the meeting.There is also a period of three hours between the completion of the meeting at noonand his recorded return to Te Whare Aronui which is unaccounted for. Therefore,Mr Henare has not established an alibi for the relevant time period.DNA evidence[24] The appellant submits that the presence of Mr Henare's DNA on the cigarettebutt does not necessarily lead to only one rational end conclusion, that Mr Henare wasin that garage during the period within which the burglary was committed.Mr Jefferson submitted that cigarettes are often shared or discarded cigarettes pickedup and smoked by others and therefore submitted that Mr Henare's presence in thegarage is not necessarily proved.[25] Mr Jefferson acknowledged however, that the cigarette was not found in apublic place, but on private property and inside the garage which was burgled. TheCrown argued that while there may be other possible explanations for the presence ofthe cigarette in the garage, the statement of the scientist who examined the itemconcluded that there was "a male profile" on this item. No reference is made in thereport to more than one person's DNA being located. The fact that Mr Henare's DNAwas the only genetic material located would indicate that the proffered alternativeexplanations are not plausible.[26] Again, Mr Jefferson acknowledged in his oral submissions that the evidenceof there being only one genetic profile found on the cigarette made alternativeexplanations improbable. I accept the Crown's submission on this point. The seniorconstable who attended the scene of the burglary and examined the scene for forensicevidence noted in his written statement that the cigarette butt had residual ash attachedto it, some of which fell away as he lifted it. This reinforced his belief that it was mostlikely lit when placed on the edge of the bench at the back of the garage. He also notedthat the butt smelt of smoke so it could be inferred that the butt was not old.[27] Furthermore, the complainant, upon entering the garage, noticed the cigarettebutt and knew it was not hers or any of her friends as no one she knew smoked.Mr Henare's DNA was recovered from the cigarette butt. I conclude that the onlyplausible explanation for the cigarette being located on the bench in the complainant'sgarage is exactly as the Judge found, namely that Mr Henare left it there.[28] On the basis of the established evidence, there is sufficient evidence thatMr Henare was present at the complainant's garage which would indicate that he wasinvolved with the burglary.Mr Henare's election not to give evidence[29] Mr Jefferson submitted that there is a concern that the Judge held Mr Henare'selection not to give evidence against him, having mentioned this twice during thejudgment at [4] and [9]. This concern is enhanced by the Judge's reference to "theabsence of any evidence to the contrary" to explain Mr Henare's presence in the garageother than him being involved in the burglary.6[30] Although Judge Adeane did mention twice during in his judgment thatMr Henare had elected not to give evidence, as Mr Jefferson acknowledged, on bothoccasions Judge Adeane noted that he was not obliged to do so and the fact that he hadchosen not to give evidence did not mean that he assumed any onus to prove anything.In my view, the Judge did not hold Mr Henare's election not to give evidence againsthim.Decision[31] I am satisfied that Judge Adeane did not err in his assessment of the evidenceso that a miscarriage of justice resulted. The lack of a complete alibi, combined withthe DNA evidence, is sufficient for this charge to have been made out.6 R v Henare [2017] NZDC 29004 at [12].[32] Accordingly, the appeal is dismissed._____________________________Churchman JSolicitors:Crown Solicitor, Napier