ANDERSON v R [2019] NZCA 335

ANDERSON v R [2019] NZCA 335 [26 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA197/2019[2019] NZCA 335BETWEEN SYAMASUNDARA ANDERSONAppellantAND THE QUEENRespondentHearing: 16 July 2019Court: Collins, Simon France and Lang JJCounsel: N M Dutch for AppellantA J Ewing for RespondentJudgment: 26 July 2019 at 2.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Anderson was found guilty by a jury in the District Court on two chargesof burglary.1 He appeals against conviction on the basis that the jury's verdicts wereunreasonable and the Judge failed to permit defence counsel to ask questions ofa witness after the Judge had asked questions of the witness himself.1 R v Anderson [2019] NZDC 6115.Background[2] Between midnight and 1.00 am on 29 March 2017, CCTV film footagecaptured two intruders breaking into two supermarkets in Mount Maunganui andPapamoa. They stole a significant quantity of cigarettes from the supermarket atMount Maunganui but were thwarted in their efforts from stealing goods fromthe other supermarket.[3] Mr Anderson was charged on the basis that he was a party to the burglariesbecause he had driven the two burglars from Hamilton to Mount Maunganui and backso they could carry out the burglaries. The Crown alleged he must have waited inthe car outside the two supermarkets whilst the other two men carried out theburglaries.[4] By the time Mr Anderson stood trial the two burglars, Mr Murphy andMr Smith, had pleaded guilty to the burglaries. Formal admissions produced tothe jury under s 9 of the Evidence Act 2006 confirmed they had committedthe burglaries. Mr Anderson defended the charges on the basis that the Crown couldnot prove he had driven Mr Murphy and Mr Smith from Hamilton toMount Maunganui so they could carry out the burglaries.Unreasonable verdicts[5] A verdict may be set aside as unreasonable only where the Court is satisfiedthat no jury applying the appropriate standard of proof could reasonably have reacheda guilty verdict on the evidence.2 The appellate court performs a review function; indoing so it must give appropriate weight to any advantages possessed by the jury.3This is because the assessment of the credibility and reliability of evidence given bythe witnesses is an essential part of the jury's function as the delegated fact-finder.Appellate courts should not lightly trespass on their jurisdiction.2 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [10(c)].3 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13]; endorsing R v Munro [2007] NZCA 510,[2008] NZLR 87.[6] Mr Dutch argued on Mr Anderson's behalf that the Crown did not adduce anyevidence to establish that Mr Smith and Mr Murphy were driven to the location ofthe burglaries by another person. It did not, for example, produce CCTV footageshowing a vehicle parked in the vicinity of the supermarkets with a person behindthe wheel whilst the other two men carried out the burglaries. Mr Dutch pointed outthat Mr Murphy and Mr Smith could easily have driven to Mount Maunganuithemselves without the assistance of another person. As a result, Mr Dutch submittedthe jury's verdict was unreasonable having regard to the evidence.[7] This argument overlooks several important pieces of evidence. These includetext messages between Mr Smith and Mr Murphy and between Mr Murphy anda cellphone attributed to Mr Anderson. Mr Anderson did not challenge the attributionof the cellphone to him.[8] The text messages show that Mr Smith and Mr Murphy, both of whom livedin or around Hamilton, were endeavouring to obtain the services of a driver to takethem to Tauranga during the days leading up to the burglaries. Towards the end ofa series of messages on the evening of 25 March 2017 Mr Murphy said this personwas to "drive us to tga". We take this to be a reference to Tauranga. Efforts to finda driver on that evening eventually came to nothing but they resumed their quest onthe evening of 28 March 2017.[9] At 7 pm on 28 March Mr Murphy sent a text message to Mr Smith confirminghe had found a driver. He followed this up with a message at 7.08 pm telling Mr Smiththe driver was about an hour away as he had to do a couple of things around town.At 7.20 pm, in response to a query from Mr Smith, Mr Murphy said that the driver hadhis own car. At 7.37 and 7.38 pm the following exchange occurred:Mr Smith – duz he knw hs way aroun tga west?Mr Murphy – He use to live over there dubz[10] At 9.15 pm Mr Murphy sent a message to Mr Smith saying "C u soon dubz".The text messages between Mr Murphy and Mr Smith ceased at 9.27 pm on 28 March.[11] The text messages between Mr Murphy and Mr Smith tie in closely with textmessages the police downloaded from the cellphone attributed to Mr Anderson.At 9.10 pm on 25 March 2017 Mr Murphy sent a text message to Mr Anderson asking"Upto u driving tonyt we leave for tga at 12". Mr Anderson responded "Tonightno good forme".[12] At 6.51 pm on 28 March 2017 Mr Murphy sent a text message to Mr Andersonasking "hey u wna drive tonyt". At 6.57 pm Mr Anderson responded "Yip anythingto get us going?" At 7.05 pm Mr Anderson sent Mr Murphy a text message advisinghim "I have few things to sort il b hourish". This ties in with Mr Murphy's messageto Mr Smith at 7.08 pm saying the driver would be about an hour because he had todo a couple of things around town. Mr Anderson then remained in regular textmessage contact with Mr Murphy until 9.42 pm as they made final arrangements tomeet.[13] Mr Anderson did not send a text message to Mr Murphy again until 1.58 pmon 29 March 2017 when, in response to a query from Mr Murphy as to whether he hadMr Murphy's keys, Mr Anderson said he would drop them off. Importantly, however,polling data produced by the Crown at the trial showed that Mr Anderson's cellphonepolled cell sites at Omanu on six occasions between 14 and 15 minutes after midnighton 29 March 2017. Omanu is a suburb just to the south of central Mount Maunganuiand is not far away from the supermarkets that were burgled between midnight and1.00 am on 29 March 2017.[14] Mr Anderson's cellphone then polled cell sites in Tirau and Hamilton at1.38 am and 2.47 am respectively. Tirau is situated on the most direct vehicular routebetween Mount Maunganui and Hamilton. The Crown relied on this evidence asestablishing that Mr Anderson must have taken Mr Murphy and Mr Smith toMount Maunganui on the evening of 28 March 2017 and they passed through Tirauon the return journey in the early hours of the following day.[15] The following text messages sent from Mr Anderson's cellphone then showhim endeavouring to sell cigarettes on 29 and 30 March 2017:6:32 pm – I grabbed some things for deni they go quick are use still in town20packs here7:53 pm – I can catch up with use tommoro il hold a carton4:38 pm – Anyone be keen palmal 25s for $20[16] Mr Anderson remained in contact with Mr Murphy on a regular basis between29 March and 8 April 2017. Text messages during this period show Mr Murphybecoming increasingly frustrated that Mr Anderson was failing to pay him money thathe was expecting to receive.[17] Faced with this evidence Mr Dutch endeavoured to argue the jury could notdiscount the possibility that Mr Anderson remained in Hamilton whilst his cellphonetravelled to Mount Maunganui in the vehicle with Mr Murphy and Mr Smith.Mr Dutch also pointed out that, although Mr Anderson appears to be an avid user ofhis cellphone, there was no response to any of the communications the device receivedwhen it polled cell sites outside Hamilton. Mr Dutch said this lends weight tothe possibility that Mr Anderson was not in possession of his cellphone when itreceived those communications.[18] Mr Dutch also argued that the texts relating to the sale of cigarettes mayindicate Mr Anderson received and was attempting to sell stolen property, but they donot confirm his involvement in the burglaries.[19] These arguments are plainly without merit. Mr Dutch made them to the juryand the guilty verdicts reflect the fact that the jury rejected them.Furthermore, we consider the text messages and polling data established a solidevidential basis for the Crown's argument that Mr Anderson had driven Mr Murphyand Mr Smith to Mount Maunganui so they could carry out the burglaries. The Crownwas also entitled to rely on the fact that he was attempting to sell cigarettes shortlyafter a burglary in which cigarettes were stolen. The fact that there was no responseto communications Mr Anderson's cellphone received from the Omanu cell siteshortly after midnight may simply reflect Mr Anderson's desire not to use the devicewhilst he was in the Omanu area.[20] We therefore consider the arguments advanced under this ground fall well shortof establishing that no jury could reasonably have reached guilty verdicts onthe evidence. This ground of appeal fails as a result.Failure to permit questions to be asked[21] This issue arises as a result of evidence given for the Crown by Mr MichaelMcWilliams, an analyst employed by 2degrees Mobile. Mr McWilliams gaveevidence relating to the polling data obtained from the cellphone attributed toMr Anderson. This gave obvious context to the polling data the Crown relied uponto show that Mr Anderson's cellphone made a return journey from Hamilton toMount Maunganui on the evening of 28 March 2017.[22] Mr Dutch cross-examined Mr McWilliams at some length regardingthe process by which cellphones poll or activate cell sites. The cross-examinationestablished that, although Mr Anderson's cellphone polled the Omanu cell site inthe early hours of 29 March, this did not necessarily mean it was in close proximity tothat site. Mr McWilliams also agreed that his company has several towers inthe Mount Maunganui area, and he did not know whether the Omanu site wasthe closest cell site to the supermarkets that were burgled on 29 March. In addition,he agreed that polling data could do no more than place a cellphone in the general areaof the cell site.[23] Mr McWilliams' evidence concluded with the following questions bythe prosecutor and the Judge:RE-EXAMINATION: MR SALTQ. Could a cellphone ping off a tower that's not within range of thatcellphone?A. I wouldn't think so. It would only attach to towers that are withinrange.QUESTIONS FROM THE COURT:Q. See Mr McWilliam if I've understood just what you said now, to tryand help the jury. Is it fair to say that a cellphone will connect tothe closest tower that has capacity for it?A. That's correct, yeah.Q. So if there was a tower at Tauranga and one at Omanu, which the jurywill know is at Mount Maunganui a few kilometres away, a phonefrom Tauranga would only connect to the Omanu one if there wasn'ta closer one with capacity?A. Yeah, yes.Q. It won't ignore the local one and go further in its hunt?A. No it wouldn't ignore it unless for some reason the closest one wasunable to accept the call, accept the traffic.[24] Mr Dutch said the Judge refused to permit him to put further questions toMr McWilliams after he had asked these questions of Mr McWilliams himself.In doing so he submitted the Judge breached the requirements of s 100(2)(a) ofthe Evidence Act 2006. This provides that, where a Judge asks questions of a witness,every party other than the party who called the witness may cross-examine the witnesson any matter raised by the Judge's questions.[25] We have now listened to the exchange that took place between Mr Dutch andthe Judge immediately after the Judge had concluded his questions. It was as follows:Mr Dutch: One question arising Sir.Judge: Through me[?]Mr Dutch: Yes Sir. From Your Honour' — arising out of Your Honour'squestions.I just wanted to clarify Sir that a number of factors can blocka cellphones access to a tower including vehicle — evenvehicles, weather and the like SirJudge: I don't accept that arises Mr Dutch, it's a topic that you couldhave explored earlier. I'm not going to let that continue.I contemplated that line of questioning myself and decidedthat I wasn't going to do it.Mr Dutch: Sir.Judge: Thank you. Thank you Mr McWilliams.[26] Although it is not entirely clear from this exchange, it appears that the Judgedid not permit Mr Dutch to put further questions to Mr McWilliams because he didnot consider they arose out of the questions he had just asked. We are not required toconsider whether this amounted to a breach of s 100(2)(a), however, becausethe questions Mr Dutch wanted to put to the witness could not counter or underminethe Crown's argument regarding the inference to be drawn from the polling data.This was that the polling data showed Mr Anderson's cellphone was in the Omanuarea when the burglaries occurred. As Mr Dutch acknowledged during the hearingbefore us, Mr Anderson's cellphone could not have polled the Omanu cell site if it wasback in Hamilton. The only realistic inference to be drawn from this aspect ofthe polling data was that advanced by the Crown. The cellphone must have beenwithin the range of the Omanu cell site at approximately 12.15 am when it receivedthe communications from that site. It follows that no miscarriage of justice hasoccurred even if the Judge ought to have allowed Mr Dutch to ask further questions ofthe witness.[27] This ground of appeal fails as a result.Result[28] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent