GORRIE v R [2021] NZCA 73

GORRIE v R [2021] NZCA 73 [18 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA426/2020[2021] NZCA 73BETWEEN TONY ASHLEY GORRIEAppellantAND THE QUEENRespondentCourt: Cooper, Wylie and Katz JJCounsel: R M Lithgow QC for AppellantM R L Davie for RespondentJudgment:(On the papers)18 March 2021 at 3 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The applicant, Tony Gorrie, has applied for leave to bring a second appealagainst conviction and sentence. Following a judge-alone trial in the District Court,he was found guilty of 17 charges.1 He pleaded guilty to an additional five charges.[2] The charges on which he was found guilty at the trial comprised five chargesof burglary; three each of unlawfully taking a motor vehicle, theft and dishonestlyusing a document; and single charges of failing to stop, reckless driving and driving1 Police v Gorrie [2019] NZDC 20913 [District Court conviction judgment].while disqualified. The guilty pleas were entered during the trial on charges ofdishonestly using a document.[3] Mr Gorrie represented himself at his trial in the District Court and atthe sentencing which followed his convictions. Judge Callaghan, who presided atthe trial, sentenced him to an effective term of six years and two months'imprisonment.2[4] Mr Gorrie appealed to the High Court. Mander J allowed his appeal againstconviction on two of the theft charges.3 He quashed those convictions, substituting ineach case convictions for receiving, those being offences which the trial Judge couldhave substituted for the original charges and entered convictions on the basis ofthe evidence in the District Court. The High Court also allowed Mr Gorrie's appealagainst conviction on the charge of driving while disqualified and quashed hisconviction on that charge.4 The conviction appeal was dismissed in respect of allthe other charges. The sentence appeal was also dismissed.[5] Mr Gorrie has sought leave to appeal to this Court against both his convictionand sentence. In accordance with the determination of Goddard J the application forleave has been dealt with separately from the proposed appeal, and on the papers.Background[6] The offending which gave rise to the charges against Mr Gorrie occurred atvarious locations in the South Island in the period from 26 July and 8 October 2018.It began when he took a red Honda motor vehicle worth approximately $2,000 from acar dealership in Invercargill. Mr Gorrie had found the keys in the ignition of thevehicle and driven it away. Police located the vehicle on 31 August at Arrowtown.Mr Gorrie was charged with the unlawful taking of a motor vehicle.2 R v Gorrie [2019] NZDC 25535 [District Court sentencing notes].3 Gorrie v R [2020] NZHC 1609 [High Court judgment].4 A 12 month period of disqualification imposed in respect of the charge of driving whiledisqualified was also quashed.[7] It was also alleged that in August 2018, Mr Gorrie stole a Jucy rentalcampervan which had been parked outside a holiday park in Franz Josef. The victimswere holidaying in New Zealand having travelled from South Korea. They went intoa restaurant leaving the vehicle unlocked. The police case was that after taking thecampervan, Mr Gorrie parked at a short distance away and took clothing, cash, wallets,credit cards and bags from the victims. The items were valued at approximately$6,800. When the police searched the red Honda motor vehicle which Mr Gorrie hadtaken in Invercargill, they recovered the victims' property (excluding the cash), aSchweppes bottle, and a balaclava. Mr Gorrie's DNA was discovered on the bottleand the balaclava: the ESR reported that the DNA was 700,000 million times morelikely to have come from Mr Gorrie than any other person. Mr Gorrie was againcharged with the unlawful taking of a motor vehicle and theft.[8] In the following weeks Mr Gorrie entered backpackers' premises in Nelson,Greymouth, Picton, and Kaikoura. The police alleged that on the morning of6 September 2018 Mr Gorrie entered the room of a tourist staying at premises inNelson, taking a car key. He then stole a Nissan motor vehicle, which was parkedoutside. Mr Gorrie was subsequently charged with the unlawful taking of a motorvehicle and burglary. Then, on 23 September, Mr Gorrie entered the room ofa complainant staying at a backpackers' premises in Greymouth, taking $45. CCTVfootage showed a man matching Mr Gorrie's description entering and leaving thebuilding. This gave rise to a charge of burglary.[9] On either 1 or 2 October, Mr Gorrie entered a backpackers' premises in Pictonwhere he stole a wallet containing cash and a MasterCard. On 2 October he wascaptured by CCTV footage at a nearby service station trying to purchase goods withthe MasterCard. He was charged with burglary and faced two further charges ofdishonestly using a document. He was convicted of the burglary. He entered guiltypleas to the other two charges.[10] On 3 October 2018, he entered a backpackers' premises at Kaikoura. There hestole a credit card from the purse of a woman staying there, subsequently using it onfour separate occasions. This gave rise to charges of burglary and dishonestly using adocument. He was convicted of the first offence. He pleaded guilty to the secondcharge.[11] Subsequent offending occurred in Wanaka, Queenstown and Lake Moeraki.Mr Gorrie entered a car dealership in Wanaka stealing two number plates. These werelater located by the police in the Nissan motor vehicle he had stolen previously. Asa result Mr Gorrie faced two charges of theft. He was convicted on both and did notappeal.[12] Between 6 and 7 October 2018, Mr Gorrie also entered the room of threecomplainants at a backpackers' premises in Wanaka, stealing credit cards, cash anda wallet. He then purchased goods using the stolen credit cards on 7 October 2018.This offending gave rise to a charge of burglary (charge 14) and three charges of usinga document, referred to in the record as charges 15 to 17, which we will refer to againbelow. On the same day, Mr Gorrie made two further purchases with one of the stolencredit cards, giving rise to two charges of using a document, to which he entered guiltypleas.[13] On 8 October, the police observed a vehicle exceeding the speed limit onState Highway 6 near Lake Moeraki. It was the stolen Nissan motor vehicle, drivenby Mr Gorrie. The police activated red and blue flashing lights and the siren. WhenMr Gorrie failed to stop they gave chase. As the result of subsequent events Mr Gorriewas charged with reckless driving, as well as failing to stop and driving whiledisqualified. He was subsequently arrested. He was convicted on all three charges.When they recovered the Nissan motor vehicle the police also located the numberplates which Mr Gorrie had stolen. His fingerprints were found on one of them.Proceedings in the District Court[14] Prior to the trial, Judge Kellar ruled that evidence concerning six previousincidents in which Mr Gorrie had been convicted of dishonesty offences againstmembers of the travelling public was admissible as propensity evidence.5 The Crownsubmitted that the evidence indicated Mr Gorrie had a propensity to target backpacker5 R v Gorrie [2019] NZDC 15056.accommodation and steal from tourists. The Judge considered the evidence wasadmissible under s 43 of the Evidence Act 2006. The Crown and Mr Gorrie(representing himself) agreed that the propensity evidence could be put before theCourt in the form of an agreed memorandum pursuant to s 9 of the Evidence Act.[15] On 2 October 2019, Judge Callaghan, who was subsequently to be the trialJudge, granted a further application by the Crown.6 This was to admit an unsigned"Vehicle Crime Report" that had been provided by the complainant associated withthe Nissan motor vehicle, as hearsay evidence. By this stage, the complainant had leftNew Zealand and could not be contacted by police. The Judge ruled that he wasunavailable as a witness, and that the circumstances relating to the making ofthe statement provided reasonable assurance that it was reliable.7[16] The trial took place in the District Court between 7 and 9 October 2019.During the trial, Mr Gorrie pleaded guilty to five of the charges. On the balance,Judge Callaghan found him guilty. The Judge rejected Mr Gorrie's evidence that hewas not the person responsible for the offending. He considered Mr Gorrie was nota credible witness, stating that he rejected his evidence "almost in its entirety".8[17] As noted earlier, the Judge sentenced Mr Gorrie to an effective term ofsix years and two months' imprisonment. He also imposed a minimum period ofimprisonment of three years and six months.9 Mr Gorrie was disqualified on thedriving offending for a period of 18 months.10ConvictionThe High Court appeal[18] Mr Gorrie appealed against both conviction and sentence. We deal with theproposed sentence appeal later. He was represented by counsel at the hearing of theappeal. He argued that the Vehicle Crime Report and parts of the propensity evidence6 R v Gorrie [2019] NZDC 19538.7 At [15]–[16].8 District Court conviction judgment, above n 1, at [81].9 District Court sentencing notes, above n 2, at [15].10 At [14].should not have been admitted. Counsel submitted that the District Court Judge hadnot adequately directed himself concerning lies and identification evidence andclaimed that the evidence against Mr Gorrie was insufficient to convict him.[19] These arguments were largely rejected by Mander J.11 We have alreadysummarised above the effect of the High Court judgment. On the issue of theadmissibility of the hearsay statement the Judge expressed the view thatJudge Callaghan had not erred in his assessment that the circumstances relating to thestatement provided reasonable assurance of its reliability. The statement had beentaken in the formal setting of a police station by a constable acting in the normal courseof her duties. It recorded details concerning the circumstances in which the car andthe items had gone missing and it concerned matters entirely within the expectedknowledge of the complainant.12[20] Mr Gorrie's key objection was unfair prejudice because of lack of opportunityto cross-examine the complainant. Mander J noted that this was not a point taken atthe pre-trial hearing in the District Court. It was only at the trial that Mr Gorrie hadadvanced the claim that he had purchased the vehicle from the complainant.13[21] Mander J noted that Mr Gorrie had been free to put forward his explanation forhow he came into possession of the vehicle, and was able to do so in the knowledgethat the complainant was unavailable to respond.14 The admission of the hearsaystatement had not prevented Mr Gorrie from mounting an effective defence to thosecharges to which the statement related, given that the defence was based on a claimthat Mr Gorrie himself advanced.15 And the probative value of the statement was notoutweighed by the risk of it having an unfair prejudicial effect on the proceeding.16[22] In the event, the trial Judge was left in a position of having to weighMr Gorrie's claim in the context of the overall evidence given about Mr Gorrie'sconduct, and the propensity evidence. The Judge had found Mr Gorrie to be an evasive11 High Court judgment, above n 3.12 At [19].13 At [20].14 At [26].15 At [25].16 At [25].and vague witness; his evidence was implausible, and his explanations were put to oneside.17 This aspect of the appeal was therefore rejected.[23] Mander J also rejected a challenge to the admission of the propensity evidence.He considered Judge Kellar had been correct to conclude that the previous convictionsand the details of that offending was propensity evidence; it established a pattern thatwas relatively frequent and close in time to the present allegations, demonstrating"a tendency on the part of Mr Gorrie to target backpackers accommodation and stealproperty from tourists".18 This feature of the prior offending was "of itself sufficientlyunusual and similar to be probative of a propensity on Mr Gorrie's part to offend in aparticular way".19[24] But the real challenge to the admission of the propensity evidence was not onthe finding that the prior offending qualified as propensity evidence. Rather, itconcerned the manner in which the respective summaries of facts relating to theprevious offending had been established. This was by way of a memorandum ofadmitted facts which Mr Gorrie signed and was submitted at the trial as amemorandum under s 9 of the Evidence Act.20 Mander J considered the memorandumwas "unhelpfully worded" because it began by stating "the following evidence hasbeen ruled admissible as propensity evidence" when Mr Gorrie had not in factadmitted the summaries of facts in respect of a number of the charges to which he hadpleaded not guilty.21 However, Mander J considered that it could not realistically becontended that Mr Gorrie had not understood the purpose for which the informationwas being put before the Court and he had been under no obligation to sign thestatement of admitted facts.22 Mr Gorrie was in any event precluded as a matter oflaw from disputing the propensity offending, and had accepted under cross-examination that he had on many previous occasions targeted backpackers'accommodation and had a propensity to do so.23 Further, the charging documentsrelating to the propensity offending were sufficient to establish the relevant propensity17 At [27].18 At [34].19 At [34].20 At [38].21 At [38]–[39].22 At [39] and [41].23 At [43].in respect of the current charges, and in the circumstances there had been nomiscarriage of justice as a result of the statement of admitted facts.24[25] Mander J also rejected the allegations that the trial Judge had misdirectedhimself in relation to lies and identification evidence.25 It is not necessary to go intodetail about that aspect of the High Court judgment because it is not pursued furtherin this court.[26] Mander J dealt in some detail with the arguments challenging the sufficiencyof the evidence relied on to find Mr Gorrie guilty in respect of a number of the charges.In each case, he rejected the challenge presented on the basis of an analysis of the factsadduced by the prosecution at the trial, save for those charges in respect of which theappeal against conviction was allowed.[27] Consequently, the conviction appeal was dismissed, save to the extent it wasallowed as we set out at [4] above.The application for leave[28] Under s 237(2) of the Criminal Procedure Act 2011 this Court must not grantleave for a second appeal unless the proposed appeal involves a matter of general orpublic importance, or a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.[29] It is not contended here that the proposed appeal raises a matter of general orpublic importance. However, Mr Lithgow QC submitted there is a risk that amiscarriage of justice occurred. In his written submissions he repeated the argumentsmade in the High Court that there was insufficient evidence on which the District CourtJudge could have found Mr Gorrie guilty of certain of the charges. He conceded thatin the case of some charges an appeal would be untenable, either because Mr Gorriepleaded guilty or because there was in fact sufficient evidence on which to convict.However, leave is sought to bring a second appeal in relation to the remaining charges,in respect of which it is said that there was insufficient evidence on which the Judge24 At [44]–[45].25 At [55] and [66].could properly have convicted or, in some cases, that he relied on propensity reasoningto an impermissible extent. This is a difficult basis on which to advance a secondappeal, particularly in a case where the intended appellant has given evidence and hasbeen the subject of strongly adverse credibility findings.[30] Two "[g]eneral [i]ssues" were raised by Mr Lithgow relating to propensityreasoning. The first concerned the detailed propensity evidence outlined in thememorandum of admitted facts signed by Mr Gorrie. Mr Lithgow submitted the detailof the propensity offending should not have been admitted, and all that was properlybefore the Court was the fact of the previous convictions.[31] Leaving to one side the fact that Mr Gorrie signed the notice, the relevantpropensity would have been established if the material had been limited in the mannernow suggested. As Mander J pointed out, the Crown would have been entitled to relyon the charging documents relating to the prior offending which would haveestablished entry into backpackers' premises without authority with intent to commitimprisonable offences on four occasions between May 2011 and March 2014, togetherwith offending involving the dishonest use of credit cards. We agree with the Judge'sconclusion that if the propensity offending had been limited to these details theevidence would still have been capable of demonstrating a pattern of offendinginvolving the burglary of backpackers' premises at times reasonably proximate to thecurrent charges. We do not consider any miscarriage arose from the memorandum ofadmitted facts in the context of a judge-alone trial.[32] The second general issue raised concerning propensity is expressed as beingspecific to charge 2, though we note references are also made to other charges. Thegeneral issue is based on an alleged failure of the trial Judge to explicitly direct himselfon the implications of his finding that the evidence showed a tendency on the part ofMr Gorrie to target backpacker accommodation and steal from tourists. Mr Lithgowsubmitted that in effect propensity evidence became the central feature in the proof ofthe identity of the offender in the disputed charges.[33] This and the other arguments intended to be advanced on the appeal wouldessentially require this Court to undertake a second review of factual findings thatwere made by the trial Judge and upheld in the High Court. If we were to confront thedetail of the arguments for the purposes of the leave application we would essentiallybe performing that review in advance. We do not think it necessary to do so. It willsuffice to deal with examples of the kind of argument intended to be raised if leave isgranted. We take first the group of charges, charges 1 to 3, relating to the offending atInvercargill and Franz Josef.[34] In relation to charge 1 (unlawfully taking the Honda in Invercargill)Mr Lithgow submitted that the only evidence on which the prosecution could rely wasthat items with his DNA on them were found on the back seat floor. He submittedthere was no proof beyond reasonable doubt that Mr Gorrie was the person who tookthe car. Mander J rejected a similar argument put to him in the High Court. He referredto CCTV footage, the items located in the vehicle that had Mr Gorrie's DNA on them,and other property that was also located in the car that had been taken from the Jucyrental vehicle stolen while parked outside the Holiday Park at Franz Josef (the subjectof charge 2).26 To defend this charge, it was necessary for Mr Gorrie to confrontthe unlikely coincidence not only that his DNA was found on items located insidethe car, but there was also stolen property there belonging to tourists taken fromanother car that fitted the pattern of Mr Gorrie's offending and in respect of which hewas also found guilty. Mr Gorrie's explanation that he had left the items on which hisDNA was found in the car after being picked up by another person driving the car.Mander J held that once the trial Judge rejected that, the proven circumstances weresufficient to establish he was responsible for the theft of the car.27 We can see no errorin this approach.[35] In relation to charge 2 (unlawfully taking the Jucy campervan at Franz Josef)Mr Lithgow complained that the trial Judge had impermissibly extended thepropensity to target backpacker lodges and persons staying there to "a generalpropensity to steal from tourists". The fact that Mr Gorrie was found guilty of takingthe Honda and items from the campervan had been used to infer that he must be boththe person who took the campervan and in so doing, or later, stole the items in it. Heforeshadowed a submission on the second appeal that the proper inferences were26 High Court judgment, above n 3, at [71].27 At [72].insufficient to prove this charge and charge 3 (the theft of items from the campervan)beyond reasonable doubt.[36] Mander J noted that the argument overlooked the combined effect of thecircumstances of the two thefts and the items located in the Honda. He consideredthere was no other reasonable inference to draw from the unusual coincidence ofthe presence of items in the Honda with Mr Gorrie's DNA on them and property stolenfrom the rental van in Franz Josef in circumstances consistent with other evidence ofMr Gorrie's "modus operandi to target tourists".28 We cannot find any fault in thisreasoning. The inferences drawn by the trial Judge were permissible based onthe evidence adduced in relation to charges 1 to 3, and the Judge was entitled to seesignificance in the totality of the items found in the Honda.[37] We will not repeat this kind of analysis with respect to the other convictionssought to be pursued in the second appeal. It is sufficient for us to express our viewthat, in each case, we consider the trial Judge's decisions appear to be properly basedon facts proven at the trial and inferences reasonably available from them. Theconvictions were upheld by Mander J after a careful analysis of the evidence adducedat the trial. We are not persuaded that there has been any miscarriage of justice.[38] We mention finally charges 15 to 17. As noted earlier, these charges related tothe use of two different bank cards taken in the burglary of a backpackers' premises inWanaka and subsequently used to purchase items in Queenstown. It appears thatMander J mistakenly thought that Mr Gorrie had pleaded guilty to these charges.29Consequently he did not deal with them. The relevant records show that Mr Gorriepleaded not guilty and the trial Judge convicted Mr Gorrie of those charges.30[39] The two complainants in the case of charges 15 to 17 were staying at the samehostel in Wanaka at which a third complainant was staying. Both left their wallets inthe room where they were staying and discovered them missing the following day.The Crown was able to lead evidence that the cards had been used after being taken.28 At [76].29 At [99].30 District Court conviction judgment, above n 1, at [104].Mr Gorrie pleaded guilty to two other charges (charges 18 and 19) relating to the useof a credit card taken from the third complainant, on the same night. The trial Judgerejected evidence from Mr Gorrie that the third complainant's credit card had beengiven to him by somebody else. He reasoned that the possession of the credit card,which Mr Gorrie admitted within a short time after the burglary, was evidence that hehad committed the burglary. Relying on that and the propensity evidence he convictedMr Gorrie of the burglary and also charges 15 to 17.31[40] We agree with Mr Davie's submission for the Crown that it is implausible thatthe person using the credit cards referred to in charges 15 to 17 was anyone other thanMr Gorrie. He does not seek to challenge on the second appeal his conviction for theburglary. Given his guilty pleas to charges 18 and 19, we are satisfied there wassufficient evidence for the trial Judge to convict Mr Gorrie on charges 15 to 17.Notwithstanding the error made by the High Court, we do not consider a miscarriageof justice has arisen in respect of those convictions.[41] For these reasons, we are satisfied that this is not a proper case for the grant ofleave for a second appeal against conviction.Sentence[42] As a result of the convictions entered in the District Court, Mr Gorrie was tobe sentenced on five charges of burglary, eight charges of dishonestly using adocument (five of which he pleaded guilty to during the course of the trial), one chargeof theft of over $1,000 and two charges of theft of under $500, three charges ofunlawfully taking a motor vehicle, and one charge each of reckless driving, drivingwhile disqualified and failing to stop.32 The District Court Judge sentenced Mr Gorrieto an effective term of six years and two months' imprisonment. He took the burglariesand associated using of a document as the lead offences and set a starting point of fiveyears' imprisonment.33 He uplifted this to six years to take into account the other31 At [104].32 We note again that on appeal in the High Court the convictions for theft of under $500 werequashed and substituted for convictions for receiving of under $500, and the conviction for drivingwhile disqualified was quashed: see at [4] above.33 District Court sentencing notes, above n 2, at [8].offending,34 and added a six-month uplift for Mr Gorrie's prior convictions.35 A creditof five per cent was allowed for guilty pleas entered during the course of trial.36 Theresulting sentence was six years and two months' imprisonment.[43] The Judge also considered that a minimum period of imprisonment should beordered, influenced by the fact that Mr Gorrie was a recidivist offender. The minimumterm was fixed at three years and six months.37[44] The High Court considered the end sentence of six years and two months'imprisonment was not manifestly excessive and dismissed the appeal. Mander Jconsidered that in isolation the five year starting point for the lead offences could beconsidered harsh, but the modest uplifts imposed for the other offending and forMr Gorrie's previous convictions, together with the allowance for the guilty pleasmade during the trial, meant the end sentence was not excessive.38 Referring to whathe described as Mr Gorrie's "relentless criminal history that includes multipleconvictions for theft, fraud and burglary over some three decades", The Judgeconsidered the present offending replicated "earlier criminal conduct, a sample ofwhich was provided by the propensity evidence called at his trial".39 Given thishistory, the six-month uplift reflected a "merciful" approach.40 Similarly, in the caseof the credit for the guilty pleas Mr Gorrie had only entered them when the state of theevidence left no other realistic option; he was fortunate to have received a credit.41[45] Mr Lithgow submitted the sentence was excessive, suggesting that thesix-month uplift for previous offending was double-counting. But that is not the wayin which it was viewed by the High Court Judge and we are not persuaded his approachwas incorrect. Mr Lithgow also submitted that the final sentence was harsh giventhe total value of property taken. He drew a comparison with white collar offendingwhich he claimed would be treated far more leniently and noted that although34 At [9].35 At [10].36 At [11].37 At [15].38 High Court judgment, above n 3, at [126].39 At [129].40 At [129].41 At [130].the offending involved burglary it had involved entry rather than breaking intopremises.[46] These are all points that could be made on a sentence appeal. We consider thesentence imposed can properly be described as stern and it may be that a lowersentence than was imposed here could be justified. But we are not persuaded therehas been any error of principle, or that there has been a miscarriage of justice as aresult of the sentence imposed. The case is not one that would justify the grant ofleave for a second appeal against sentence.Result[47] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent