Collins v The Queen
[2014] NZCA 342
•23 July 2014 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA210/2013 [2014] NZCA 342 |
| BETWEEN | NIGEL JOHN COLLINS |
| AND | THE QUEEN |
| Hearing: | 30 April 2014 |
Court: | Harrison, Courtney and Clifford JJ |
Counsel: | P J Davison QC and H D L Steele for Appellant |
Judgment: | 23 July 2014 at 12.30 pm |
JUDGMENT OF THE COURT
AThe applications for leave to adduce further evidence are declined.
BThe appeal against conviction is dismissed.
CThe appeal against that part of the sentence ordering payment of reparation of $4,000 to Mr Boyd is allowed and that part of the order is quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
The appellant, Nigel John Collins, was found guilty and convicted following a Judge alone trial before Judge Hinton in the Auckland District Court of five charges of theft under s 221 of the Crimes Act 1961.[1] Each of these charges related to the dishonest taking of and dealing with cattle from properties contiguous with the Collins’ farm owned by Heather Jones and Arthur Mayall (the Mayalls) and John Boyd (Mr Boyd).
[1]R v Collins DC Auckland CRI-2010-084-328, 19 October 2012.
Mr Collins appeals against these convictions on the ground that the failure of Nino Nish, an employee of Mr Collins called as a witness on his behalf, to give truthful and corroborating evidence in relation to the ear tagging of animals on Mr Collins’ farm has resulted in a miscarriage of justice pursuant to s 385(1)(c) of the Crimes Act.[2]
[2]The Crimes Act appeal provisions were repealed as from 1 July 2013 and replaced with appeal provisions in the Criminal Procedure Act 2011. Any case commenced prior to 1 July 2013 is however still required to be determined in accordance with the Crimes Act appeal provisions: Criminal Procedure Act, s 397.
Mr Collins seeks leave pursuant to s 389 of the Crimes Act to adduce evidence from:
(a)Mr Nish;
(b)Michael Rhodes, a private investigator, who took a statement from Mr Nish in December 2011; and
(c)Greg Bradford, trial counsel for Mr Collins.
Mr Collins has filed affidavits from each of Messrs Nish, Rhodes and Bradford.
Mr Nish sets out the evidence he now wishes to give, and appends an original witness statement taken by Mr Rhodes.
Mr Nish says that under cross-examination, and inconsistently with his written witness statement, he said that he could not recall the last time he had tagged any cows.[3] He now seeks to change his evidence by confirming that in early 2010 he had tagged or retagged a number of beef and dairy cows in preparation for their being sent to the freezing works. He says that his changed account is truthful.
[3]We explain later the significance of the “tagging” issue.
By way of explanation for this inconsistency, Mr Nish states in his affidavit that he panicked in the witness box, thinking that if he acknowledged tagging the animals he would be seen as responsible and allegations of theft would be made against him.
In his affidavit, Mr Rhodes describes the circumstances in which he took that witness statement.
Mr Bradford in his affidavit describes how he had Mr Rhodes take a witness statement from Mr Nish. He states that when Mr Nish got into the witness box, he appeared to be extremely ill at ease. The evidence Mr Nish gave was inconsistent with the contents of his statement, particularly as regards the tagging of the cows. Mr Rhodes said Mr Nish had made no mention of removing tags from animals. Mr Bradford also says that he did not see any utility in applying to have Mr Nish declared hostile. He formed the view that the evidence was as good as the defence were going to get given Mr Nish’s extremely nervous and anxious state.
Mr Collins also appeals against the reparation of $4,000 ordered by the Judge as “a contribution to the costs associated with fencing and encroachment removal” claimed by Mr Boyd, but he takes no issue with any other aspect of his sentence.[4]
The case at trial
Factual background
[4]Mr Collins was sentenced by Judge Hinton to nine months’ home detention, 200 hours’ community work and to pay reparation of $41,738.74 to Heather Jones and Arthur Mayall and $7,000 to John Boyd: R v Collins DC Auckland CRI-2010-084-328, 9 April 2013 at [65]–[70].
Mr Collins is a dairy farmer and operates a large farm in the Tomarata/Wellsford area north of Auckland with his wife, Sonya Collins. The Collins’ farm comprises three blocks of land, two of which they own (the Boyd Access Road Block and the Tapu Bush Road Block, together 600 acres), and a third, which they lease from Graeme Logue (the Lease Block, 300 acres). In total, the Collins’ farm consists of approximately 500 cows across 900 acres.
Adjoining the Boyd Access Road Block to the east is a block of land owned and farmed by Mr Boyd, and to the south and west is the farm then owned by the Mayalls.
On or about 21 March 2010 the Mayalls put 21 cattle into one of their paddocks adjoining the Boyd Access Road Block. These were two Friesian dairy cows known to the Mayalls as Paws and 104, and 19 Hereford/Friesian beef cows. Ms Jones gave evidence that on 2 April she and Mr Mayall noticed that those 21 animals were missing.
Mr Boyd gave evidence that in late March 2010 he noticed four steers missing from a paddock bordering the Boyd Access Road Block.
The Mayalls and Mr Boyd encountered each other while searching for their animals. They had not previously been on friendly terms. Mr Boyd and Ms Jones gave evidence that together they located their missing cattle on 3 May on the Lease Block and called the police. On 10 May the police executed a search warrant on the Collins’ farm. Twenty three cattle were seized and removed from the Collins’ farm. Of these, 21 cows were claimed by the Mayalls, and two steers were claimed by Mr Boyd. Subsequently one steer was acknowledged as not belonging to Mr Boyd and was returned to Mr Collins.
When seized, all 22 cattle were found to have Mr Collins’ identification tags in their ears. Mr Collins faced five theft charges which reflected the make-up of those 22 seized cattle:
(a)Counts 1 and 2: the two Friesian dairy cows, Paws and 104, claimed by the Mayalls;
(b)Count 3: 10 Hereford/Friesian cross beef heifers, each with an “M” shaped ear mark, claimed by the Mayalls;
(c)Count 4: nine other Hereford/Friesian cross heifers, claimed by the Mayalls; and
(d)Count 6: one Hereford/Friesian cross beef steer, claimed by Mr Boyd.
Mr Collins faced a further charge, Count 5, with respect to three Hereford/ Friesian cross steers which were not found on the day of the search but which were also alleged to have been stolen by Mr Collins.
By the time of his trial Mr Collins acknowledged that Paws and 104 did not belong to him. He maintained that the 20 remaining seized cattle belonged to him.
The Crown and defence cases
It was the Crown’s case that, with the exception of the single steer that was returned to Mr Collins, the cattle seized were those missing. Mr Collins’ dishonesty, founding the theft charges, was his initial taking of those 22 cattle and his subsequent tagging of them as his own.
The Crown case at trial was two pronged:
(a)For the 19 cows and one steer Mr Collins said were his own, there was evidence to contradict Mr Collins’ claim of ownership, including:
(i)visual identification evidence from the Mayalls, Mr Boyd and other witnesses;
(ii)evidence that the cows in Count 3 and the steer in Count 6 had ear marks consistent with those of the missing cattle;[5] and
(iii)DNA testing proving that all of the 21 cows seized were pregnant to either of the Mayalls’ two bulls.[6]
(b)For all the 22 animals, and with particular focus on the cattle in Count 1, the Crown relied on evidence of Mr Collins’ responsibility for their dishonest tagging as his own. As well as cross-examining Mr Collins and Mr Nish on their narratives of how the tagging had occurred, the Crown also led evidence of all or many of the tags on Paws, 104 and the 20 other animals being numbered in sequence. This supported the Crown contention that all these animals had been retagged at the same time, shortly after they had been taken onto Mr Collins’ land, both actions being undertaken by him or at his direction.
[5]An ear mark is a distinctive cut made into the animal’s ear, the shape of which is unique to the owner and is designed to aid in identification of the animal (in addition to any ear tags that the animal may possess).
[6]The progeny of each of the cows was DNA tested, the results of which were admitted by the appellant pursuant to s 9(2) of the Evidence Act 2006.
The Mayalls and Mr Boyd also gave evidence suggesting that the missing cattle had been moved through a gate or gates between their properties and that of Mr Collins. The Mayalls pointed to what they said were changes to those gates, and that one gate in particular appeared to have been lifted off its hinges. There was also evidence that a length of fencing, between the Mayalls’ paddock adjoining Mr Collins’ land and the property on the other side, had been cut. The suggestion was that this had been done by whoever took the cattle to make it look as though the cattle had gone onto that adjoining property. However, the Mayalls said that there was no evidence of cattle having gone that way.
Mr Collins, who gave evidence in his own defence at trial, acknowledged that Paws and 104 did indeed belong to the Mayalls. He said the rest of the seized animals were his own. Mr Collins’ case at trial – in addition to his claim of ownership and numerous specific challenges to the Crown’s identification evidence – was as follows:
(a)Paws and 104 had, of their own volition, found their way onto the Collins’ property and had been accidentally assimilated into one of Mr Collins’ dairy mobs, with whom they were found on 10 May.
(b)The 20 other animals (19 beef cows said to belong to the Mayalls and one steer said to belong to Mr Boyd) were and always had been his cattle. They were part of his beef mob, with whom they were found on 10 May. Mr Collins had himself earmarked the Count 3 cows, using a pair of scissors. The so-called earmark on the Count 6 steer had been caused by the ear being ripped on a bar gate in the calf shed.
(c)With the exception of Paws and 104, the Mayalls’ remaining 19 cows had been impregnated by the Mayalls’ bulls when, from time to time, those bulls had strayed onto the Collins’ property.
(d)If any of the 22 cattle had been tagged recently, Mr Nish had, in the case of the 19 beef cows and one steer that Mr Collins maintained belonged to him, tagged them in the ordinary course of his day to day work as part of Mr Collins’ beef herd and in the process of preparing them for slaughter. As matters transpired, after being processed in that way they were kept on the farm because the beef price had dropped. Paws and 104, by contrast, must have been accidentally retagged by Mr Nish when he was dealing with the dried off dairy mob.
Much of the Crown evidence at trial was directed towards establishing that the animals, other than Paws and 104, did not in fact belong to Mr Collins. There was extensive evidence from and on behalf of the Mayalls and Mr Boyd identifying various individual animals. Likewise, there was extensive evidence relating to ear mark issues. This evidence came from Mr Boyd; from Mrs Burgess, the previous owner of the Count 3 cows; and from Mr Collins. Mrs Burgess gave evidence that the “M” earmark was her mark, and that the Count 3 cows had been sold by her to a Mr Woollam, who had in turn sold them to the Mayalls. Mr Woollam gave evidence supporting that narrative. Mr Boyd gave evidence of having tagged the Count 6 steer, and other supporting identification evidence.
In defence Mr Collins went to considerable lengths to support his narrative that he had marked the Count 3 cows’ ears with scissors in a way that could, over time, reflect their ear marks at the time they were seized. This included a fairly elaborate process of tracing ear marks onto a piece of cardboard, and having other witnesses repeat that exercise.
Given Mr Nish’s acknowledgement that Paws and 104 were not Mr Collins’ cattle, the ear tagging evidence was of particular significance in terms of their Counts. It played a lesser but nonetheless central role as regards the other animals in the other Counts.
Evidence was also given by and for Mr Collins as to the poor state of boundary fences between his and the Mayalls’ land. The Mayalls were criticised as having caused that situation due to their unwillingness to contribute to the maintenance of those fences. Their cattle had in the past strayed regularly onto the Collins farm. The movements of Paws and 104, and the bulls, were further examples of that behaviour.
The Judge’s verdicts
In finding Mr Collins guilty on Counts 1 and 2 (relating to Paws and 104) the Judge said Mr Collins had been evasive and not convincing on the retagging issue. The evidence had not explained how Paws and 104 came to have Mr Collins’ ear tags. The Judge was satisfied beyond reasonable doubt that Mr Collins had dishonestly retagged and retained Paws and 104.
On Count 3 (the 10 Hereford/Friesian cross beef cows ear marked M), the Judge:
(a)rejected Mr Collins’ claim that he, and not Mrs Burgess, had been responsible for the “M” ear marks, and accepted the Crown’s other identification evidence;
(b)rejected Mr Collins’ evidence as to how these cows were pregnant to the Mayalls’ bulls; and
(c)found that Mr Collins had failed to explain why all the cattle had Mr Collins’ ear tags (inserted after March 2010).
The Judge was therefore satisfied beyond reasonable doubt that those ten cows had been taken or dealt with dishonestly.
On Count 4 (relating to the nine other cows) the Judge found Mr Collins guilty on similar grounds to his verdict for Count 3. He:
(a)accepted the Crown’s identification evidence;
(b)relied on the cattle being in calf to the Mayalls’ bulls; and
(c)found that the defence had failed to satisfactorily explain how all the cattle had Mr Collins’ ear tags.
On Count 6, the Judge accepted Mr Boyd’s identification evidence, including that based on the steer’s ear mark, and rejected Mr Collins’ claim that the steer had always been his. He also rejected Mr Collins’ explanation for the ear mark. Again, there was no acceptable explanation for the ear tagging.
The Judge found Mr Collins not guilty on Count 5, relating to the three steers not found on Mr Collins’ farm. The Judge concluded he could not draw the inferences on which the Crown’s case relied.
Considered together, those verdicts show that the Judge not only rejected Mr Collins’ tagging evidence, but also the evidence he advanced in support of his proposition that, save for Paws and 104, he owned all the cows in question. It is clear that the Judge’s assessment of Mr Collins’ credibility went beyond the difficulties he found with Mr Collins’ tagging evidence. It also extended to other important aspects of the evidence, particularly Mr Collins’ claim of responsibility for the ear marks and his explanation for how all the 19 beef cows came to be pregnant to the Mayalls’ bulls.
The law – an overview
Section 389(b) of the Crimes Act permits this Court to allow evidence not given at trial (fresh evidence) to be heard when considering an appeal against conviction or sentence if it is necessary or expedient in the interests of justice. An appeal against conviction based on the recantation of a witness after trial is an appeal based on fresh evidence, and can only be allowed on the basis that there was a miscarriage of justice, or a risk of that, in terms of s 385(1)(c).[7]
[7]R v M CA135/05, 4 July 2006 at [12].
In Lundy v R, the Privy Council clarified the requirements for allowing appeals against conviction on the basis of fresh evidence.[8] The Board set out a three step sequential test involving the issues of credibility, freshness and admissibility:
[120] The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[8]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273. See also: R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
Evidence will be credible where it is capable of being believed by a reasonable minded decision-maker.[9] That is an assessment to be made by the Court objectively as opposed to whether the Court itself believes the evidence to be truthful.
[9]Lundy v R, above n 8, at [127].
The recantation of evidence previously given at trial is a discrete species of fresh evidence. The relevant principles were recently encapsulated by this Court in Hamon v R:[10]
(a)The mere fact that a complainant or witness recants does not make his or her trial testimony unreliable or mean there must be [a] retrial.
(b)The critical enquiry is why the complainant has recanted – whether it is because the earlier evidence was untrue or because other pressures have come to bear upon the complainant. Courts must be alive to human frailties in this area. As was said in R v Flower:
“Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness’s state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at the time.”
(c)Where an appeal is brought on the grounds of post-trial recantation, the appeal court has to grapple with “potentially difficult factual issues … itself to appraise the effect of evidence which had been or was to be given”. This will usually require the court to review the evidence given at the trial, and the subsequent affidavits, and any oral evidence before them.
(d)If the court is satisfied that the recantation is untrue, the appeal will be dismissed. If there is a doubt, a retrial will be required. In the exceptional circumstance that the appellate court concludes the complainant’s recantation is true, an acquittal may be entered.
[10]Hamon v R [2013] NZCA 540 at [62] (footnotes omitted).
As Mr Davison QC rightly acknowledged, the typical context for such an appeal is where a complainant, or other incriminatory witness, recants. The position here is somewhat different. However, we recognise that the proposition in this case is that incorrect evidence given at trial by Mr Nish was materially incriminatory in the context of that trial. It undermined Mr Collins’ credibility and the narrative he gave to support his defence. Allowing Mr Nish to adduce his proposed fresh evidence would negative that incriminatory effect in a similar manner to recantation by a complainant or other, more traditional, recanting incriminatory witness.
The evidential context
The issues of credibility and freshness, and in turn of admissibility, need to be considered in light of the evidence at trial on the issue of tagging and the evidence from Mr Nish that Mr Collins seeks leave to put before the Court on appeal. Before we consider those issues we therefore summarise, as succinctly as we are able, the extensive evidence on this question of tagging given at trial.
Cattle, over one month of age, must be identified with a barcoded primary ear tag and a secondary ear tag if being sold or moved to another herd or property. The primary tag identifies the herd, the secondary tag the animal within the herd. Missing tags are to be replaced. Special tags may be applied when cattle are being sent for slaughter. The evidence as a whole was that primary tags would never be removed, but remained with an animal for its life. Tags could come out accidentally, but that was rare.
With the possible exception of some of the Count 4 animals, all 22 cattle seized on Mr Collins’ farm on 10 May, carrying his ear tags, had had other tags when they were in the possession of the Mayalls and Mr Boyd. There was evidence that the tags found on 10 May appeared to be new, and that at least some of them formed a sequence of numbers.
As already noted, Mr Collins’ explanation for new tags on animals that he said were his animals was that animals in the beef mob would have been retagged in the process of being sent to the freezing works. On Mr Collins’ account, this involved removing all tags from animals in the beef mob, both primary and secondary, and replacing them with special slaughter tags. Of all the witnesses at trial, both for the Crown and the defence, Mr Collins alone stated that primary tags would be removed in this way. At the same time, he appeared to confirm that he would never remove a primary or a secondary tag, and that he understood it was an offence to do that.
Mr Nish confirmed that he had brought the beef mob in to process before going to the works and that he would have gone through checking for and replacing any missing tags. Similarly, when he moved the dairy mob he would have tagged cows where ear tags were missing, but not otherwise. Mr Nish said, however, that he himself would never remove a bar code tag. There was no point in removing it because it was there to identify the animal. However, he did confirm that he removed secondary brass tags that some farmers fit to dairy cows.
Case on appeal
For Mr Collins
In bringing this appeal, Mr Davison acknowledged that Mr Collins now accepts the 19 beef cows he maintained as his own were in fact the property of the Mayalls. Mr Collins’ defence at any retrial would therefore change to that significant extent. In particular, Mr Collins could no longer challenge the Mayalls’ identification evidence. Nor could he rely on the fundamentally unlikely proposition (in our view) that as a result of those bulls having strayed onto his land from time to time, those cows were pregnant to the Mayalls’ bulls. He would presumably say that all 19 beef cows strayed onto his land, consistently with his explanation for Paws and 104. He would also presumably maintain his position that he had not taken the cows, and that any re-tagging was carried out by Mr Nish in the ordinary course of the farm’s business and without any dishonest involvement by Mr Collins.
In our view, however, any assertion that Mr Nish’s claimed failure to give his intended and true evidence gave rise to a miscarriage of justice is to be assessed in the context of the case Mr Collins advanced at his trial, and not by reference to the different case he would, on the basis of that acknowledgement, be likely to advance at any retrial.
In summary, Mr Davison’s submission for Mr Collins is that a central part of the Judge’s reasoning when finding Mr Collins guilty was the absence of any adequate explanation as to how the 22 animals had come to have new ear tags identifying them as belonging to Mr Collins. Mr Nish’s evidence, under cross‑examination at trial, that he could not recall the last time he had tagged any animals had contributed materially to that finding.
For the Crown
For the Crown, Mr Tantrum’s submission was that Mr Collins’ evidence was not fresh in any sense, and was not credible. His original brief was available at trial to Mr Bradford. Mr Bradford could have re-examined Mr Nish if there were material issues to clarify following his cross-examination. Moreover, the bulk of Mr Nish’s affidavit was consistent with the evidence he gave in his examination in chief and his original handwritten brief. In terms of his cross-examination before us, Mr Nish showed that he was not a credible witness. His new evidence simply could not explain the retagging, and in particular the retagging of Paws and 104. Considering Mr Nish’s evidence in the context of the trial, and in particular of all the evidence relied on by the Judge (including the identification evidence), there was no possibility that a miscarriage of justice resulted from Mr Nish’s single comment as to the timing of any retagging that he now wished to correct.
Conviction appeal
Following the approach mandated by the Lundy decision, we are first to determine if Mr Nish’s evidence is credible, and then if it is fresh. As a matter of common sense, if the evidence is not credible there is no need to determine if it is fresh. We are then to consider admissibility. Admissibility is assessed by reference to the real risk of a miscarriage of justice.
Credibility
The specific evidence which Mr Nish now seeks to recant is recorded in the following exchange in which the prosecutor explored with Mr Nish in cross-examination at trial when he recalled tagging animals:
Q.All right and when you were spoken, sorry when the officer spoke to you and if it helps you at all it’s an older officer who has gray hair that I’m talking about, he asked you do you remember him asking you when the last time there was any ear tagging of animals of cattle on the farm?
A.Not vaguely no.
Q.Vaguely?
A.I vaguely remember him asking me but you know it’s quite a while ago.
Q.I’m sure yes it was, it’s over two years ago now?
A.Yeah.
Q.Do you remember what you said to him?
A.No.
Q.That it was in June the previous year?
A.No I don’t actually, I can’t even remember back.
Q.Would that be June, would June be a time when your tagging happens in general terms?
A.Not basically, no.
Q.Was that the case that you haven’t actually re-tagged any animals since June of the previous year, that is 2009?
A.I may have done but I, like I say it was a while ago so I basically can’t remember that.
Mr Nish did not, as characterised by counsel for Mr Collins, say that he had not recently tagged or retagged any animals. What he said was that it had been a while ago. Then, in response to the proposition that he “hadn’t actually re-tagged any animals since June of the previous year, that is 2009”, he said: “I may have done but I, like I say it was a while ago so I basically can’t remember that”. In our view, what Mr Nish was saying at that point is that he could not remember exactly when he last tagged animals. Given the date ranges in Mr Collins’ evidence, from early February through to May 2010, it may not have been particularly surprising that Mr Nish at that point could not remember precise times. But Mr Nish did not at that point recant his earlier evidence that he had retagged animals because existing tags had fallen out.
Mr Nish gave evidence before us. It became apparent at an early stage of Mr Tantrum’s cross-examination that Mr Nish’s new evidence was inconsistent with his original statements, both to Mr Rhodes and at trial, and internally contradictory. He was not a compelling witness. Having seen and heard Mr Nish we are satisfied that his new evidence is not capable of being believed by a reasonable decision‑maker. Mr Nish’s new evidence does not provide a credible explanation for how fresh tags were found on the cattle Mr Collins claimed as his own, as well as on Paws and 104.
Considerable differences emerged between Mr Nish’s written statement to Mr Rhodes, and his new evidence about the 20 other animals. In particular, Mr Nish’s new narrative of having split the “beef” mob into two, namely beef animals and dairy cows, is a significant change that was not part of his original narrative. An appeal such as this cannot be based on a desire to improve the evidence given at trial.
Faced with the obvious difficulties as regards credibility which became apparent when Mr Nish gave evidence before us, Mr Davison recast the central proposition of this appeal. The central issue was not, he argued, so much Mr Nish’s credibility as to how and when the cattle had come to be retagged, and Mr Nish’s role in that. Rather, it was Mr Nish’s consistency on the central point that Mr Collins had not been involved in any retagging.
However, there can be no suggestion that Mr Nish is, on that aspect of matters, recanting his original evidence. Mr Nish did not give evidence on that issue during the trial. The defence closed its case on the basis that there was no evidence that Mr Collins had been involved in tagging animals personally. In our view, when properly analysed, Mr Collins is not so much seeking to introduce fresh evidence, in the sense that a witness has materially recanted evidence as being untrue and now wishes to give true evidence, but rather is seeking to add additional, and more favourable, evidence than was given at trial. This argument must fail.
By our assessment, the evidence from Mr Nish that Mr Collins seeks to adduce is not credible, that is capable of being believed by a reasonable decision‑maker. On that basis this appeal does not get beyond the first stage of the Lundy analysis, and must fail accordingly.
Freshness
We are in any event satisfied that the evidence was not fresh. Mr Bradford had ample opportunity to undertake some clarification in re-examination. He did not necessarily have to have Mr Nish declared hostile for that purpose. He could have re-examined, without leading, by reference to significant elements of the Crown’s cross-examination.
We therefore accept the Crown’s proposition that the evidence Mr Nish would use in place of the evidence he seeks to recant is not fresh.
We reach the same conclusion with regard to Mr Davison’s developed proposition, namely that the important fresh evidence is Mr Nish’s confirmation that Mr Collins did not himself play any part in the tagging or retagging of these animals. However, just because Mr Nish was not asked to and did not confirm this part of Mr Collins’ evidence does not mean that such evidence would be “fresh” if given at a retrial. Moreover, Mr Bradford for Mr Collins closed his case on the basis that there was no evidence Mr Collins had taken part in the tagging or retagging of these animals.
Miscarriage
Finally we comment on the more general proposition that a miscarriage of justice may have resulted because Mr Nish did not fully come up to brief at trial, putting aside the re-examination possibilities.
We do not see any real risk of that. The Crown’s case was circumstantial. There were a number of elements to it, including the subject of the retagging evidence as a whole. The issue of Mr Nish’s recollection as to when he last tagged animals was a small part of the overall retagging evidence. That aspect of the retagging evidence played little part in the Crown’s closing. The timing issue was not referred to by the Crown in closing on Counts 1 and 2. When summarising the retagging evidence in the context of Count 3, the Crown identified some 10 aspects of that evidence on which it wished to rely. Only one of those related to the question of timing.
For Mr Collins, Mr Davison emphasised the impact of the Judge’s findings on the tagging issues for the Judge’s assessment of Mr Collins’ credibility overall. It was there that there was a real risk of miscarriage. That submission needs to be assessed against the significance of the retagging issues as regards the Judge’s assessment of Mr Collins’ evidence as a whole.
On Counts 1 and 2, there was simply no explanation as to how Paws and 104 had come to be retagged. Mr Collins’ “accidental” explanation, at the end of extensive cross-examination, was clearly not believed by the Judge. There is nothing in Mr Nish’s additional evidence that can help Mr Collins on that point.
As regards Counts 3, 4 and 6, the Judge not only rejected Mr Collins’ tagging evidence, but also his implausible explanation of how the 19 Hereford/Friesian cross beef cattle were pregnant to the Mayalls’ bulls. He also rejected Mr Collins’ statement that he had tagged the nine Count 3 cows himself using a pair of scissors, and the inferences Mr Collins asked the Judge to draw from his extensive process of tracing the ear marks of those cows. Likewise, he rejected Mr Collins’ challenge to Mr Boyd’s evidence that the steer carried Mr Boyd’s ear mark. In those circumstances, and given our assessment of the unsatisfactory quality of Mr Nish’s evidence as revealed in cross-examination before us, the proposition that the Judge’s credibility findings as regards Mr Collins carry a real risk of a miscarriage of justice cannot be sustained.
For all those reasons, Mr Collins’ appeal against his conviction is dismissed.
Sentence appeal – reparation
Before the circumstances which gave rise to Mr Collins’ convictions occurred, Mr Boyd’s access road and stockyards had encroached upon Mr Collins’ land. There had been an ongoing dispute about the matter. In the period between his arrest and sentencing Mr Collins required Mr Boyd to remove that part of his yard that extended into his land, and to cease using that part of the access road that crossed over his land. In his victim impact statement, Mr Boyd sought reimbursement of the costs he incurred in re-fencing and re-surveying the boundary.
In sentencing Mr Collins, Judge Hinton ordered him to pay $4,000 in reparation towards those costs. The Judge concluded that “on a liberal and non‑technical interpretation, which is the appropriate interpretation, that Mr Collins has caused some of this loss” through or by means of his offending.
We agree with Mr Collins’ submission that, for the Court to impose reparation pursuant to s 32 of the Sentencing Act 2002, there needs to be an appropriate causal link between the offending and the costs incurred.
We are satisfied that there was no such causal nexus. The encroachment of Mr Boyd’s yards and access road was a circumstance that existed at the time of the theft of the animals. Irrespective of his criminal conviction for that theft, Mr Collins was entitled to require Mr Boyd to rectify that encroachment. That that requirement may have been brought about by the circumstances of the offending is not, in our view, a sufficient basis upon which to order reparation of the cost of doing so.
Result
Mr Collins’ sentence appeal is therefore allowed to that extent and the order that he pay $4,000 reparation to Mr Boyd on account of Mr Boyd’s costs of removing the encroachment is quashed.
Mr Collins’ appeal against conviction, however, is dismissed.
Solicitors:
Sellars & Co, Helensville for Appellant
Crown Solicitor, Auckland for Respondent
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