B v Police HC Christchurch CRI 2006-409-7

[2006] NZHC 194

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000007

B

Appellant

v

POLICE

Respondent

Hearing:         9 March 2006

Appearances: C B Persson for Appellant

D J Orchard for Respondent

Judgment:      9 March 2006

JUDGMENT OF FOGARTY J

Introduction

[1]      The appellant contends that she was wrongly convicted on hearsay evidence. She had been charged that by deception without claim of right she caused a loss valued at $372.50 to Sloane Square Clothing.

[2]      She  was  a  shop  assistant  at  another  shop,  Hamilton  and  Murray.  The substance of the charge is that she used details of the credit card of a customer of

Hamilton and Murray to purchase goods from Sloane Square directing that they be

B V POLICE  HC CHCH CRI 2006-409-000007  9 March 2006

sent to a Post Office box.  That box was rented by a friend of hers who handed over the parcel containing the clothing.  The case against her was circumstantial.

[3]      The police argued that as an employee she had access to the credit card details of her employer’s customers. Sloane Square, received a telephone call apparently from the credit card holder to purchase a distinctive black and white check coat.     The caller asked for the coat to be sent to a PO Box number in Christchurch.  The store duly sent the coat in a box to that number.  The holder of the box gave evidence of receiving a box addressed to the accused and handing it over to her.  A witness saw the accused wearing a distinctive black and white coat of the same description as that despatched in the box.

[4]      The appeal contends that the evidence of the phone call being made to Sloane Square, the instructions given, and the despatch of the box to the PO Box was all inadmissible being hearsay. Mrs Orchard argued that that evidence was not hearsay.

The hearsay evidence

[5]      That evidence was given by Ms Christine Anderson, the owner of Sloane Square. The witness’ evidence was that she was the owner of the business and in the shop on the day, that one of her staff received a phone call.  As a result of the call:

We mailed out a garment to a box number.   If I can remember it, it was

22087, at the request of the woman who phoned in … .

She described the garment that was put in the box.   She was asked how it was packaged:

Q.       So how was this jacket packaged up.

A.        Um, it would’ve been in one of our blue plastic Sloane Square bags and then wrapped in white um, plastic again and then addressed on the front of that to be mailed off. …

[6]      The witness said the details of the credit card taken and box number etc were written down on a piece of paper by the staff and that she had the piece of paper.

[7]      She was cross-examined:

Q.        You’ve given evidence about the PO Box you say the package was sent off to.   You’re relying entirely on what was written on that piece of paper that you’ve mentioned (inaudible).

A.        Yes.

Q.        So it’s a case of somebody else wrote that down and you have got that information from that piece of paper.

A.        Mm hmm.

…

Q.        You didn’t deal directly with the person on the other end of the phone did you.

A.        No I didn’t.  But I would point out the staff member who did has had

25 years experience and has never made a mistake before.

Q.        Oh yes but that staff member is not being called to give evidence are they.

A.        No but I still have the piece of paper with it written on if you want to see it.

Q.       Yes.  So it’s really a case of you saw what somebody else wrote. A.         Right.

[8]      The piece of paper was not admitted in evidence.

[9]      Ruling that there was a prima facie case to answer the trial Judge said inter alia of the proprietor of the Sloane Square shop that:

… she, via a credit card purchase,   … sent out a merino Sabatini labelled coat, black and white, … She said that her firm sent that garment out to P O Box 22087. …

Mr Persson made submissions over that evidence from Mrs Anderson but I do not accept his submissions.  In my view the important fact of the evidence is that that was where that item was sent.

…  The important fact is that the evidence establishes that that garment was sent to that box number and, in my view, it is not a hearsay point at all.

[10]     Mrs Orchard argued on appeal that there was no hearsay in the important aspects of the evidence because the shop owner had observed her shop assistant take the call and despatch the coat.

[11]     In my view the evidence does not go so far.  The evidence does establish that the owner witness was in the shop at the same time as the shop assistant took the call.  There is no direct evidence that she witnessed the call.  The owner did say:

We mailed out a garment to a box number.

But the rest of her evidence indicates that she did not personally wrap up the garment and box it nor write the address on it and that she was relying for her certainty for that proposition on the details written down on a piece of paper by her office staff.

[12]     Essentially,  the witness  was  relying  on  the  content  of  a  business  record prepared by another.  That record was not produced.  The shop assistant, who took the call, and wrote down the details and who packaged and despatched the garment, was not called.

[13]     The evidence of the owner was hearsay.  She was telling the Court what she had learned from her staff and had read from what her assistant had written down. The document itself was not produced.

[14]   At the present time the common law rule against hearsay applies with considerable vigour to criminal proceedings.  There is a statutory exception to the admissibility of documentary hearsay evidence available in s 3 of the Evidence Amendment Act 1980 (No 2).   That might have been availed of if the shop assistant in question was unable to give evidence.  But it was not.  Similarly, the Court might have accepted oral hearsay evidence from the owner if the shop assistant was unable to give evidence under s 8, of the same Act.  There is no evidence before the Court that the shop assistant in question was unavailable to give evidence.

[15]     If the evidence of the owner is excluded there is no evidence that it was Sloane Square Ltd who sent the parcel to the box holder, or what was in the parcel. The box holder gave evidence that he received a parcel, that it was addressed to a surname, B  , but he did not give evidence as to the content of the parcel or from where it came.

[16]     The appellant as a defendant stood on her rights.  She did not give evidence. Her counsel at the trial and on appeal has sought proof according to law and refused to countenance any departure from the law against hearsay evidence.  She and her counsel are entitled to pursue that position.  The Judge erred when finding there was no hearsay.

[17]     The appeal succeeds because an essential aspect of the circumstantial case depended upon inadmissible hearsay evidence.  The conviction is quashed.

Fogarty J

Solicitors:

C B Persson, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent