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WILKIE v R [2005] NZCA 78 (27 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA6/05

THE QUEEN

v

TIMOTHY JOHN WILKIE

Hearing: 20 April 2005

Court: Hammond, Robertson and Potter JJ

Counsel: S J Gill for Appellant
M D Downs and S Walker for Crown

Judgment: 27 April 2005

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS

(Given by Robertson J)

Introduction

[1] The appellant was convicted by a jury in the High Court at Wellington in December 2004 on one count of threatening to kill and one count of blackmail. He was sentenced to two and a half years’ imprisonment on the blackmail charge with a concurrent sentence of 18 months’ imprisonment for threatening to kill.
[2] At the same time, Mr Wilkie had faced a count of injuring with intent to cause grievous bodily harm and three counts under the Arms Act 1983 on which the jury returned verdicts of not guilty.
[3] Mr Wilkie appeals against his conviction, first, on the basis of a miscarriage of justice because of the wrongful exclusion of an exculpatory statement he made to the Police; and secondly, because of radical counsel error. The appeal against his sentence on the basis that an effective sentence of two and a half years’ imprisonment is manifestly excessive. The starting point was too high for only one incident (with the threat never carried out) and there had been insufficient credit given for a marked reduction in the appellant’s offending in recent times.

Statement admissibility

[4] The issue of the non-admission of the statement arose in the cross-examination of Detective Dearns. He was asked about a statement which had been made by the appellant to Detective Hastings. The Crown intimated that Detective Hastings would not be called. He had provided a deposition about other matters, but the statement did not figure in that evidence. Counsel before us (who was not trial counsel) complained that if the defence had known earlier that the Detective would not be called, there would have been an opportunity for challenge including a pre-trial appeal in respect of the matter. Quite how he would have done so was not explored.
[5] The admissibility of the statement was the subject of a ruling by Justice MacKenzie on 1 December 2004. In a nutshell, following the decision of this Court in R v Sturgeon [2005] 1 NZLR 767, the Judge concluded that the statement was wholly exculpatory. He found there was no admission against interest in relation to any of the charges which Mr Wilkie was facing and so there was no basis for its admissibility.
[6] Mr Gill does not argue with the legal conclusion that a statement which is wholly exculpatory is inadmissible, but argued that the statement was in fact mixed like that in R v Tozer [2002] 1 NZLR 193. Thus he said the classification by the trial Judge was in error.
[7] The features which counsel submitted made it a mixed statement included the admissions that:

(a) the complainant and appellant were in dispute in the sum of 25,000;
(b) there was a meeting at Jason Root’s property with the complainant and Nathan Hemana being present;
(c) the appellant smoked cannabis;
(d) there was an earlier $11,000 debt which had been paid off by the complainant’s father in cash;
(e) the appellant had driven up the driveway of the complainant’s house, ringing him, asking him to come outside and talk and then being advised by the complainant that he was not going to give him any money and he was not going to continue fixing up his house;

(f) the appellant was in a dire financial position.

[8] We are not satisfied that any of the features referred to were in fact admissions against interest within the context of this case and its presentation. None of these factors sensibly or logically make it more likely that Mr Wilkie was a blackmailer or that he had threatened to kill.
[9] Counsel submitted that, because another statement of the appellant (which was also a denial) was presented in evidence it was unfair to the appellant not to tender both. The logic of that submission escapes us.
[10] We agree with the Crown that, in any event, the thrust of what was said in the statement was well covered in other evidence including the fact that the discussions had been "even-tempered" and without "raised voices". The jury knew that there had been an earlier statement and no injustice could have flown from its non-admission because cross-examination of the complainant and Jason Root had dealt with the matters.
[11] Equally importantly, there is no obligation on the Crown to call a witness so long as this decision is made clear and the witness is available for the defence to call if it wished to do so.
[12] Nothing which was advanced by Mr Gill would lead us to believe that there was some fundamental obligation on the Crown to call Detective Hastings, in these circumstances. Mr Gill argued that the factors which he identified would give considerable support to the Crown case. That is a judgement for the Crown. The defence does not decide on the manner of presentation of the prosecution case, providing no unfairness arises.

Counsel incompetence

[13] The second ground of complaint was that there were a number of radical errors by trial counsel and particularly that he had failed to follow specific instructions.
[14] In support of this part of the appeal, affidavits have been filed by the appellant himself and by his partner, Sara Lee McSweeney. There is an affidavit in reply by trial counsel, Paul Paino.
[15] On the papers there appeared to be a gulf between the positions on the two sides, but we had the advantage of hearing evidence from Mr Paino and from the appellant. The issue eventually fell into a very narrow compass and the only critical matter was whether counsel followed specific instructions. Some peripheral matters were also raised and can be briefly dealt with.

(i) Failure to adequately prepare for trial

[16] Mr Wilkie said in his affidavit that no notes were made by counsel prior to trial, that the indictment was not explained, and that counsel did not adequately understand the case as evidenced by his lack of familiarity with the appellant’s own statement to the Police. Mr Paino countered that he had extensive notes (which were exhibited to his affidavit) that had been created on more than a dozen occasions and following substantial involvements with the appellant and at times his partner. Mr Paino specifically noted that he was well aware of the contents of the appellant’s statement to the Police and in fact he had provided a copy of it to Mr Wilkie.
[17] We found the evidence of Mr Paino, and particularly the contemporaneous documents which were available, totally persuasive on this point and reject this ground of complaint.

(ii) Not calling of relevant evidence

(a) Former friendship with complainant

[18] It was said that there should have been evidence that the complainant was a former friend so as to suggest that there would be no motive to threaten. Mr Paino’s affidavit discloses the complainant had given evidence that he had known the appellant for a number of years and had admitted that at one point they lived together, although there was some dispute about the exact time. This material was, in any event, before the jury.

(b) Complainant being an unreliable witness

[19] It was said that there was no evidence adduced that the complainant was an unreliable witness because he had previously shot a dog and was a methamphetamine user. Mr Paino says that he had no information available that the complainant had shot a dog, but it was hardly relevant to any fact in issue in the case and may well have been treated by the Court as an indecent or scandalous assertion. The introduction of methamphetamine use had the risk, Mr Paino concluded, that it would set the jury wondering whether the appellant had a similar problem. These were legitimate judgments of counsel in the course of the trial.

(c) Possibility that his brother was responsible

[20] Mr Wilkie said evidence should have been called that the appellant’s brother Stefan may have been responsible for the crimes. Mr Paino specifically notes that he discussed this as a possibility but no evidence was available to support the bare assertion.

(d) Pre-trial contact between complainant and appellant

[21] The fact that the complainant had called the appellant just days before trial was not drawn to the jury’s attention (as Mr Wilkie contended it should have been) to show that there was no fear and it was unlikely that he was someone who would threaten to kill or blackmail him. Mr Paino said a clear decision not to refer to this was taken and agreed to because of the danger that the inquiry could have rebounded in the trial setting. Counsel was apprehensive that the communication may have been bugged and could have led to unhelpful results.

(e) Not calling Nathan Hemana as a witness

[22] The appellant suggested that Nathan Hemana ought to have been called to give evidence as to what had been said between the complainant and the appellant at the critical meeting. Mr Paino noted that he attempted to make inquiries as to what Mr Hemana would say, but Mr Hemana did not attend a meeting with counsel. He was also concerned that, because of Mr Hemana’s physical stature, exposing him to the jury might have increased their view that there was a general stand-over exercise. It was agreed that the balance of risk favoured not calling him.

(f) Technical error in presentation

[23] Mr Wilkie says that the defence tactic in focussing on the fact that there had been a genuine dispute including calling the engineer to underline this reality was a flawed approach. Mr Paino responded that this was a clear tactical decision to show that there had been a genuine dispute and to emphasise that the problem between the complainant and the appellant was a legitimate grievance and to discount any suggestion that the differences between them were over a drug deal. Counsel had already obtained a favourable result in a pre-trial application to exclude the motive behind a previous stand-off between them. It was an available tactic and Mr Wilkie concurred with it at the time.
[24] We are satisfied that none of these issues, either separately or collectively, amounted to radical counsel error. We should note that they were not actively pursued in the course of the oral hearing.

(g) Failure to call the accused

[25] This was the critical issue before us and the point upon which the oral testimony was focussed. Some clear and unambiguous facts emerge:

(i) The appellant had enormous confidence in the eventual outcome of the trial and was strongly of the view that he had done nothing wrong.
(ii) Potentially the most serious count in the indictment was the one, under s 189(1) of the Crimes Act 1961, of injuring with intent to cause grievous bodily harm.
(iii) The appellant had consistently told Mr Paino that he wanted to give evidence.
(iv) Mr Paino had constantly deflected this issue and told Mr Wilkie of the dangers inherent in giving evidence, particularly in respect of the shooting incident, and the possibility that, in cross examination, any gaps in the circumstantial case on that count would be filled.
(v) At the conclusion of the Crown case, Mr Paino made it abundantly clear to Mr Wilkie that his advice was that he should not give evidence, and the two of them discussed this.
(vi) Albeit reluctantly, Mr Wilkie accepted that advice and acquiesced in the decision. Mr Wilkie is adamant that the reason he did so was because of the confidence by Mr Paino as advised to him that there would be total acquittals.

[26] We do not find that any such guarantee was given. Mr Wilkie himself was so confident of his own position that he did not need reassurance from counsel. We reject the appellant’s evidence on this aspect, and accept the evidence of Mr Paino that he made no promises or assurances of any sort.
[27] This case has to be assessed in light of the long-standing, open and frank relationship which existed between counsel and client. In his affidavit in this Court, Mr Wilkie spoke of Mr Paino’s skills and ability as counsel in the most generous terms and it is clear that his counsel had served him extraordinarily well over a lengthy period of time. As a result, there was possibly a slightly less structured arrangement between them than should have been the case. It was certainly regrettable that, as against Mr Wilkie’s continued insistence that he would give evidence, in the preparatory stages a brief was not prepared so that it would have been available if Mr Wilkie had ignored his counsel’s advice and insisted on his clear right to give evidence. That had not been done and it should have been.
[28] The issue of giving evidence is of fundamental importance. This case clearly demonstrates that, when the advice was given at the close of the Crown case in the cells at the High Court and the decision not to do so was taken, it should have been committed to writing. It probably would not have avoided Mr Wilkie having convinced himself that Mr Paino was giving guarantees (which we find did not exist), but it would have lessened the area in which there could have been a degree of disgruntlement.
[29] Those deviations from best practice do not, however, alter the inevitable conclusion in this case that Mr Wilkie, who is a confident, articulate and not unintelligent man, accepted advice and made a decision that he would not give evidence. There is no need to rehearse the multitude of reasons which made that a perfectly legitimate and prudent tactical decision in the course of the trial.
[30] The fact that it had merit is reflected in the situation that four of the six counts were not proven. We do not overlook the fact that, without evidence, there was a difficulty in the presentation of the defence on the other two counts, but that was a problem inherent in the case and is not in itself a ground for complaint now.
[31] Having carefully analysed the written material and having had the advantage of hearing and seeing the witnesses, we conclude that the complaint now made lacks substance. It is an endeavour to re-run this case in a different way. Proper professional judgments were made with the involvement and concurrence of the appellant at all times.
[32] As this Court noted in R v Pointon [1985] 1 NZLR 109, there is a not unnatural tendency for people who have been convicted to seek to lay responsibility with someone else. Counsel is frequently the first person in their sight.
[33] We do not accept that there was a failure to follow instructions or that there was radical counsel error. The appellant was informed about the decisions which had to be made and although he may have reluctantly agreed, we are satisfied that he did so and cannot now recant.
[34] The appeal against conviction is accordingly dismissed.

Sentence appeal

[35] It was realistically accepted by Mr Gill that a conviction under ss 237(1) and 238 of the Crimes Act 1961 for seeking to obtain a benefit by threats will, almost inevitably, lead to a term of imprisonment. R v Wilson CA31/81 5 June 1981 and R v Paterson CA228/96 22 August 1996 are examples. But counsel contended that the length of the sentence was excessive especially as there was only one occasion when there was a threat of force and it was never carried out. Further, it was argued that there was insufficient credit for the fact that the appellant, who had an unenviable list of previous convictions in the early 1990’s, had been offending less frequently in more recent times.
[36] The sentencing Judge noted that there was a degree of confusion as to whether the demand had been for $60,000 or $25,000, but said that the serious element was the threat rather than the amount of the demand. He concluded that a starting point of three years was appropriate. That is entirely consistent with the authorities which we have mentioned.
[37] The Judge specifically took the view that the separate conviction under s 306 of threatening to kill was really subsumed within the more serious charge and so a concurrent sentence was imposed on that.
[38] Although there was no admission of responsibility, contrition or remorse, the Judge was prepared to look at the fact that, in more recent times, there had been less offending. He also considered the consequences of his imprisonment on his partner and their child when making an allowance of six months from his starting point.
[39] We are of the view that the sentence imposed was clearly within the available range. There is nothing in principle that was wrong about it and we do not accept that it was manifestly excessive. Any form of blackmail or stand-over tactic is unacceptable and must be denounced.
[40] The appeal against sentence is also dismissed.

Solicitors:
Gill and McAsey, Wellington for Appellant
Crown Law Office, Wellington

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[1]	The appellant was convicted by a jury in the High Court at Wellington in December 2004 on one count of threatening to kill and one count of blackmail. He was sentenced to two and a half years’ imprisonment on the blackmail charge with a concurrent sentence of 18 months’ imprisonment for threatening to kill.
[2]	At the same time, Mr Wilkie had faced a count of injuring with intent to cause grievous bodily harm and three counts under the Arms Act 1983 on which the jury returned verdicts of not guilty.
[3]	Mr Wilkie appeals against his conviction, first, on the basis of a miscarriage of justice because of the wrongful exclusion of an exculpatory statement he made to the Police; and secondly, because of radical counsel error. The appeal against his sentence on the basis that an effective sentence of two and a half years’ imprisonment is manifestly excessive. The starting point was too high for only one incident (with the threat never carried out) and there had been insufficient credit given for a marked reduction in the appellant’s offending in recent times.

[4]	The issue of the non-admission of the statement arose in the cross-examination of Detective Dearns. He was asked about a statement which had been made by the appellant to Detective Hastings. The Crown intimated that Detective Hastings would not be called. He had provided a deposition about other matters, but the statement did not figure in that evidence. Counsel before us (who was not trial counsel) complained that if the defence had known earlier that the Detective would not be called, there would have been an opportunity for challenge including a pre-trial appeal in respect of the matter. Quite how he would have done so was not explored.
[5]	The admissibility of the statement was the subject of a ruling by Justice MacKenzie on 1 December 2004. In a nutshell, following the decision of this Court in R v Sturgeon [2005] 1 NZLR 767, the Judge concluded that the statement was wholly exculpatory. He found there was no admission against interest in relation to any of the charges which Mr Wilkie was facing and so there was no basis for its admissibility.
[6]	Mr Gill does not argue with the legal conclusion that a statement which is wholly exculpatory is inadmissible, but argued that the statement was in fact mixed like that in R v Tozer [2002] 1 NZLR 193. Thus he said the classification by the trial Judge was in error.
[7]	The features which counsel submitted made it a mixed statement included the admissions that:

[8]	We are not satisfied that any of the features referred to were in fact admissions against interest within the context of this case and its presentation. None of these factors sensibly or logically make it more likely that Mr Wilkie was a blackmailer or that he had threatened to kill.
[9]	Counsel submitted that, because another statement of the appellant (which was also a denial) was presented in evidence it was unfair to the appellant not to tender both. The logic of that submission escapes us.
[10]	We agree with the Crown that, in any event, the thrust of what was said in the statement was well covered in other evidence including the fact that the discussions had been "even-tempered" and without "raised voices". The jury knew that there had been an earlier statement and no injustice could have flown from its non-admission because cross-examination of the complainant and Jason Root had dealt with the matters.
[11]	Equally importantly, there is no obligation on the Crown to call a witness so long as this decision is made clear and the witness is available for the defence to call if it wished to do so.
[12]	Nothing which was advanced by Mr Gill would lead us to believe that there was some fundamental obligation on the Crown to call Detective Hastings, in these circumstances. Mr Gill argued that the factors which he identified would give considerable support to the Crown case. That is a judgement for the Crown. The defence does not decide on the manner of presentation of the prosecution case, providing no unfairness arises.

[13]	The second ground of complaint was that there were a number of radical errors by trial counsel and particularly that he had failed to follow specific instructions.
[14]	In support of this part of the appeal, affidavits have been filed by the appellant himself and by his partner, Sara Lee McSweeney. There is an affidavit in reply by trial counsel, Paul Paino.
[15]	On the papers there appeared to be a gulf between the positions on the two sides, but we had the advantage of hearing evidence from Mr Paino and from the appellant. The issue eventually fell into a very narrow compass and the only critical matter was whether counsel followed specific instructions. Some peripheral matters were also raised and can be briefly dealt with.

[26]	We do not find that any such guarantee was given. Mr Wilkie himself was so confident of his own position that he did not need reassurance from counsel. We reject the appellant’s evidence on this aspect, and accept the evidence of Mr Paino that he made no promises or assurances of any sort.
[27]	This case has to be assessed in light of the long-standing, open and frank relationship which existed between counsel and client. In his affidavit in this Court, Mr Wilkie spoke of Mr Paino’s skills and ability as counsel in the most generous terms and it is clear that his counsel had served him extraordinarily well over a lengthy period of time. As a result, there was possibly a slightly less structured arrangement between them than should have been the case. It was certainly regrettable that, as against Mr Wilkie’s continued insistence that he would give evidence, in the preparatory stages a brief was not prepared so that it would have been available if Mr Wilkie had ignored his counsel’s advice and insisted on his clear right to give evidence. That had not been done and it should have been.
[28]	The issue of giving evidence is of fundamental importance. This case clearly demonstrates that, when the advice was given at the close of the Crown case in the cells at the High Court and the decision not to do so was taken, it should have been committed to writing. It probably would not have avoided Mr Wilkie having convinced himself that Mr Paino was giving guarantees (which we find did not exist), but it would have lessened the area in which there could have been a degree of disgruntlement.
[29]	Those deviations from best practice do not, however, alter the inevitable conclusion in this case that Mr Wilkie, who is a confident, articulate and not unintelligent man, accepted advice and made a decision that he would not give evidence. There is no need to rehearse the multitude of reasons which made that a perfectly legitimate and prudent tactical decision in the course of the trial.
[30]	The fact that it had merit is reflected in the situation that four of the six counts were not proven. We do not overlook the fact that, without evidence, there was a difficulty in the presentation of the defence on the other two counts, but that was a problem inherent in the case and is not in itself a ground for complaint now.
[31]	Having carefully analysed the written material and having had the advantage of hearing and seeing the witnesses, we conclude that the complaint now made lacks substance. It is an endeavour to re-run this case in a different way. Proper professional judgments were made with the involvement and concurrence of the appellant at all times.
[32]	As this Court noted in R v Pointon [1985] 1 NZLR 109, there is a not unnatural tendency for people who have been convicted to seek to lay responsibility with someone else. Counsel is frequently the first person in their sight.
[33]	We do not accept that there was a failure to follow instructions or that there was radical counsel error. The appellant was informed about the decisions which had to be made and although he may have reluctantly agreed, we are satisfied that he did so and cannot now recant.
[34]	The appeal against conviction is accordingly dismissed.

[35]	It was realistically accepted by Mr Gill that a conviction under ss 237(1) and 238 of the Crimes Act 1961 for seeking to obtain a benefit by threats will, almost inevitably, lead to a term of imprisonment. R v Wilson CA31/81 5 June 1981 and R v Paterson CA228/96 22 August 1996 are examples. But counsel contended that the length of the sentence was excessive especially as there was only one occasion when there was a threat of force and it was never carried out. Further, it was argued that there was insufficient credit for the fact that the appellant, who had an unenviable list of previous convictions in the early 1990’s, had been offending less frequently in more recent times.
[36]	The sentencing Judge noted that there was a degree of confusion as to whether the demand had been for $60,000 or $25,000, but said that the serious element was the threat rather than the amount of the demand. He concluded that a starting point of three years was appropriate. That is entirely consistent with the authorities which we have mentioned.
[37]	The Judge specifically took the view that the separate conviction under s 306 of threatening to kill was really subsumed within the more serious charge and so a concurrent sentence was imposed on that.
[38]	Although there was no admission of responsibility, contrition or remorse, the Judge was prepared to look at the fact that, in more recent times, there had been less offending. He also considered the consequences of his imprisonment on his partner and their child when making an allowance of six months from his starting point.
[39]	We are of the view that the sentence imposed was clearly within the available range. There is nothing in principle that was wrong about it and we do not accept that it was manifestly excessive. Any form of blackmail or stand-over tactic is unacceptable and must be denounced.
[40]	The appeal against sentence is also dismissed.