Elliot v Police

[2024] NZHC 3244

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-23

[2024] NZHC 3244

BETWEEN

STEPHEN RANIERA RANGI ELLIOT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 October 2024
Appearances:	W R Hawkins for Appellant S B Manning for Respondent
Judgment:	4 November 2024

JUDGMENT OF GRICE J

(Appeal against conviction)

Introduction

[1]    On 23 January 2024, Mr Stephen Elliot, was convicted of one charge of stealing $10,000 after a judge-alone trial in the District Court at Napier.1 For this offending, Mr Elliot was sentenced to four months’ community detention, 150 hours of community work and nine months’ supervision. He was also ordered to pay $5,000 to the victim of the offending.2

[2]    Mr Elliot now appeals his conviction. He contends that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. He says, in the alternative, that a miscarriage of justice occurred anyway as the Police failed to provide full disclosure before the trial. In support of this alternative ground

1      Police v Elliot [2024] NZDC 1260 [Decision under appeal]; and Crimes Act 1961, ss 219 and 223. Maximum penalty of seven years’ imprisonment.

2      Police v Elliot [2024] NZDC 18522 at [17]–[19].

ELLIOT v POLICE [2024] NZHC 3244 [4 November 2024]

of  appeal,  Mr  Elliot  seeks  leave  to  file  an  affidavit  from  his  trial  counsel,   Ms Amelia Gunson, on the effect the non-disclosure had on her legal advice and, therefore, the trial. Mr Elliot has, accordingly, waived privilege in respect of the evidence that has been filed.

Background

The offending

[3]    Mr Elliot worked as an employment advocate and  was  the  director  of  Deco City Employment Law, a company he set up to provide employment advocacy services. On 28 March 2021, the victim, Ms Rukshana Pitman, engaged Mr Elliot as she wanted to bring a personal grievance against her previous employer. An agreement was reached that Mr Elliot would work for Ms Pitman on a “no-win, no-fee” basis, but that, if Ms Pitman was successful, she would pay 33 per cent of the award to Mr Elliot. This agreement was later changed so that Mr Elliot would receive 50 per cent of any award.

[4]    On  2  June  2021,  following  mediation,  a  settlement  was  reached,  and Ms Pitman’s former  employer  agreed  to  pay  her  $10,000.  Mr  Elliot  advised  Ms Pitman that as she had been on a benefit through Work and Income New Zealand (WINZ), WINZ was likely to stop her benefit and take the whole award of $10,000. He, therefore, suggested the award be paid to Deco City Employment Law and he would pay her a sum of the award in cash.

[5]    Deco City Employment Law received the award of $10,000 and no money was paid to Ms Pitman. Accordingly, Mr Elliot, through his  position  as director  of Deco City Employment Law, stole $10,000 that was rightfully Ms Pitman’s.

The trial and decision

[6]    The Judge set out the following elements the Police had to prove beyond reasonable doubt:3

3      Decision under appeal, above n 1.

[7]    The relevant law is under s 219 of the Crimes Act 1961. The charge is one of theft under s 219(b). The prosecution must prove, beyond reasonable doubt, that the defendant obtained possession over the property in whatever manner, the defendant subsequently used or dealt with that property, the defendant did so dishonestly, the defendant did so without claim of right, the defendant intended to permanently deprive the owner of their interests in that property, and the value of the property falls into the category set out in the charging document.

[7]    Mr Elliot had elected not to give evidence at trial. There was no contest that Mr Elliot had retained the $10,000 through his company, Deco City Employment Law.4 Mr Elliot’s case was that the Police could not  prove the rest  of the charge.  Ms Gunson, trial counsel for Mr Elliot, pointed to an email, allegedly sent from     Ms Pitman, which expressed that she was happy that settlement was reached, but could not take the settlement because she is on a WINZ benefit and will have to pay them back.5 The email went on to say:6

I would rather your business takes all the money, so can you send me the invoice. I know you have done more than $10,000 in work anyway, I want you to have the $10,000 but I need the bill to show WINZ the fee.

[8]    Ms Gunson also pointed to a document that was signed by Mr Elliot and    Ms Pitman.7 It is labelled a “Receipt of Refund Form” and dated 14 June 2021. It says:8

This document confirms that Rukshana Pitman has received a sum of $10,000 in physical cash from Deco City Employment Law Limited. Deco City Employment Limited has made the decision not to charge Ms Pitman for the work that is conducted on her behalf in regards to her personal grievance with Restaurant Brands Limited.

[9]    Ms Gunson relied on this to submit that Ms Pitman had, in fact, received the cash sum of $10,000.

[10]   Ms Pitman explained both the email and the document when she gave evidence at trial. She said that she did not write the email. She said she had a discussion with Mr Elliot and he mentioned to her that WINZ would take all of, or a proportion of, her

4 At [8].

5      At [18]–[19].

6 At [19].

7      At [22]–[23].

8 At [23].

settlement as she was on a benefit. He suggested that she transfer him the settlement funds and he would withdraw the funds in cash and give it to her so WINZ would not be able to track the money.9 She said that when they met to discuss this, he said he would email something to himself off her phone and sent the email in question.

[11]   Ms Pitman agreed that she had signed the document on 14 June 2021, but she said she did not receive any money on the day she signed the document. She admitted that she had been drinking before she met with Mr Elliot and was, therefore, confused as to what she was signing. Ms Pitman thought it was just another element of the agreement, but denied receiving any of the money.10

[12]   The Judge accepted Ms Pitman’s evidence and found that she did not receive the $10,000. He said the inference was that Mr Elliot had retained the cash and refused to give it back “or has done so dishonestly.”11 He had no claim of right to this cash and, therefore, the charge had been proven.

The appeal

[13]   This appeal is brought under s 229 of the Criminal Procedure Act 2011 (CPA). Accordingly, this Court must allow the appeal if it is satisfied that the Judge erred in the assessment of his evidence to such an extent a miscarriage of justice occurred or that a miscarriage of justice occurred for any other reason.12 The definition of “miscarriage of justice” for the purposes of this appeal is set out in s 232(4) of the CPA:

(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[14]   To be successful under subs (4)(a), Mr Elliot must establish there is a reasonable possibility that a more favourable verdict, such as not guilty, might have

9 At [20].

10     At [24]–[25].

11 At [31].

12     Criminal Procedure Act 2011, s 232(2).

been entered had there been no error.13 To succeed under subs 4(b), Mr Elliot need not be concerned necessarily about the verdict itself but, rather, the process in reaching the verdict.14 He must point to an error which is such a gross departure from good practice that the verdict cannot be sustained.15 The error, irregularity, or occurrence must be of “sufficient seriousness to warrant the verdict being set aside without further inquiry”.16

[15]   The appellate approach to a conviction appeal is that of a general appeal. If this Court comes to a different view of the evidence, the trial judge has accordingly erred in his assessment of the evidence. However, customary caution must be exercised in assessing the evidence as an appellate court does not have the same advantages a trial judge may have had in hearing evidence in the first instance.17

Evidence on appeal

[16]   Although no formal application has been made, Mr Elliot seeks to adduce additional evidence on appeal. Namely, an affidavit from Ms Gunson about the trial strategy, finding out about the statement Mr Elliot made to Police via email about the allegations from Ms Pitman and how, if this email was disclosed, her trial strategy would have changed. Mr Elliot has also sought to adduce the text messages and email he sent Senior Constable Susan Liley and the job sheet of Senior Constable Liley. For evidence to be adduced on appeal, it must be fresh, credible and cogent.18

[17]   The affidavit evidence is fresh, as it could not have been adduced at trial. It is also credible and cogent as it forms the basis for one of the two grounds of appeal. The Police take no issue with this evidence being admitted on appeal and I grant leave for it to be adduced on appeal.

13     R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

14     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [39] adopted by the Supreme Court in Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [50].

15 At [35].

16 At [41].

17     Sena v Police [2019] NZSC, [2019] 1 NZLR 575 at [38] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [13].

18     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

[18]   The email is not fresh. The appellant had it in his possession at all times, but did not produce it until after trial. However, it was not brought to the attention of trial counsel for the purposes of the trial. I consider in the circumstances it is cogent and, like the affidavit, it goes directly to one of the two grounds of appeal. I grant leave for this evidence to be adduced on appeal.

[19]   Leave is not granted to admit the job sheet or the text messages. They are not relevant nor cogent to the issues on appeal. The job sheet sought to be adduced relates to a summary prepared by Senior Constable Liley of the steps taken in the investigation prepared for another purpose and is not relevant to this case. It was mistakenly disclosed to Mr Elliott. Nor are the text messages of any relevance — they are Mr Elliott’s exchanges with Senior Constable Liley making various allegations and complaints about her, which have no bearing on issues in the present case.

First ground: failure of prosecution to disclose evidence

Submissions

[20]   Mr Hawkins, for Mr Elliot, submits that by not disclosing the email sent by Mr Elliot to Senior Constable Liley, which provided a narrative of what happened between himself and Ms Pitman, the Police breached the New Zealand Bill of Rights Act 1990 (NZBORA) resulting in a miscarriage of justice. This email was Mr Elliot’s only statement to Police.

[21]   In her affidavit, Ms Gunson deposes she was not aware of the email’s existence, and it would have changed the advice she gave to Mr Elliot about his election to give evidence. She says it also prevented her from putting the statement before the Court, or summonsing Senior Constable Liley as a witness. She claims this was prejudicial to the outcome of the trial as the statement explained much of the evidence the Police sought to rely on at trial.

[22]   Mr Manning, for the Police, says that the email was in Mr Elliot’s possession before the trial as it was from him to Senior Constable Liley and that in any event the defence was run consistently with the statements which Mr Elliot had made in his

email. He submits that the failure to disclose the email did not affect the outcome of the trial and there is no risk of a miscarriage of justice.

Discussion

[23]   The importance of criminal disclosure, and the link to fair trial rights, was recently summarised by Churchman J in Peryer v R:19

[29]      Criminal disclosure by the prosecution is intimately linked to fair trial rights: a person accused of a crime must know the nature and extent of the allegations against them in order to mount an adequate defence. Disclosure therefore engages the rights set out in ss 24(d) and 25(a) of the NZBORA. The fair trial right contained in s 25(a) is absolute and cannot be subject to reasonable limitations under s 5 of the NZBORA.

[30]      Relatedly, criminal disclosure ensures that defendants are not disadvantaged by the imbalance of resources available to them as against the resources of the state. That is to say, criminal disclosure also ensures an “equality of arms”.

[31]      Mr Peryer submits that the prosecution breached its duties under the Criminal Disclosure Act [2008], the purpose of which is described in s 3 as:

… to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings.

[32]      Under the Act, the responsibility for disclosure lies with the “prosecutor”, a term defined in s 6 as “the person who is for the time being in charge of the file or files relating to a criminal proceeding”. The Act envisages that prosecuting authorities provide disclosure in three stages: initial disclosure under s 12; full disclosure under s 13; and particularised disclosure requested by the defendant under s 14.

[33]      Under s 13, the prosecution must, when engaging in full disclosure, disclose to the defendant “any relevant information”. The term “relevant” is defined in s 8 as information that “tends to support or rebut, or has a material bearing on, the case against the defendant”.

[24]   Churchman J went on to note, however, that not every breach of the Criminal Disclosure Act would necessarily amount to a miscarriage of justice.20 There must be a real risk the outcome of the trial was affected or the failure to provide disclosure was such a gross departure from good practice that the verdict cannot be sustained.

19     Preyer v R [2024] NZHC 1481. Footnotes omitted.

20 At [34].

[25]   Ms Gunson says that if she had known the content of the email that Mr Elliot sent to Senior Constable Liley, her advice about his election to give evidence would have been different. She says that she: first, would  have  asked  Police  to  call Senior Constable Liley as a witness or had her summonsed as a defence witness in regard to the statements made to her by Mr Elliot; and second, would have strongly weighted her advice to Mr Elliot in support of his giving evidence in his defence, because any cross-examination challenging his version of events would have allowed the statement to be entered as a prior consistent statement under s 35 of the  Evidence Act 2006.

[26]   The relevant email is dated 10 September 2021 from  the  appellant  to  Senior Constable Liley21 and largely relates to the appellant making claims of blackmail and extortion against the officer (so to that extent is irrelevant). It also sets out the appellant’s narrative of events, which, the Police accept, is relevant in the sense of tending to rebut the prosecution case.

[27]   As the Police submit, the email was in Mr Elliot’s possession at all material times as he sent it and after the trial gave it to his counsel. The email covered ground that formed part of the District Court case in any event. In addition, attachments to the email were produced as exhibits at the trial. These included: the email purporting to be from Ms Pitman surrendering her claim to the money, the bank records showing transfer of the money from Ms Pitman to the appellant, the subsequent withdrawal of the cash by the appellant, and the signed “receipt” form purporting to show a refund of the cash.

[28]   As Mr Manning points out, the only substantive aspects of the email that did not form part of the evidence at trial are the appellant’s claim that he did refund the money in cash to Ms Pitman (which was put before the Court in the form of cross-examination) and the claim of a motive of revenge for a rebuffed sexual advance by the complainant (which was suggested in cross-examination but not pursued with any vigour). It is apparent from the cross examination that while counsel for Mr Elliot may not have had the email she was well aware of the appellants narrative of events.

21     The email trail includes an earlier email from Constable Liley which is not relevant to the appeal. The email also includes annexures which I refer to below.

[29]   In addition, the email would not have been admissible had Mr Elliot not given evidence in accordance with s 21 of the Evidence Act. If Mr Elliot did give evidence at trial, the statement would have only been admissible if one of the situations under ss 35(2) or 35(3) of the Evidence Act arose. Section 35 of the Evidence Act provides:

35       Previous consistent statements rule

(1)A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2)A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3)A previous statement of a witness that is consistent with the witness’s evidence is admissible if—

(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)the statement provides the court with information that the witness is unable to recall.

[30]   The only possibility of referring to the email if Mr Elliot had given evidence was if there was a challenge in cross-examination to his veracity or accuracy, based on a previous inconsistent statement made by him or on a claim of recent invention on his part. Section 35(2) would then allow reference to it in re-examination. However, this was unlikely to occur.

[31]   I am not satisfied that the email would have been of any assistance to Mr Elliot in his defence. In addition, the reason Ms Gunson said she advised Mr Elliot not to give evidence was, in her words down to: “in relation to how he would come across as a witness, and how he would react to being cross-examined”. This reason would not have been affected by knowledge of the email, given the tenor of the email and the extravagant allegations made against Constable Liley. Ms Gunson’s concerns about how Mr Elliot would present himself in giving evidence would not have been allayed.

[32]   I conclude that the failure to disclose the email was a  breach  of  the  Criminal Disclosure Act but did not amount to a miscarriage of justice.   I am not

satisfied that there was a real risk the outcome of the trial was affected or the failure to provide disclosure was such a gross departure from good practice that the verdict cannot be sustained.

Second ground: error in assessment of the evidence

[33]   Mr Hawkins submits the trial Judge erred in his assessment of the evidence for the following reasons:

(a)contrary to the Judge’s conclusion, it was not impossible the appellant would waive his fee in respect of the advocacy work, as he had done so with Ms Kupa;

(b)contrary to the Judge’s conclusion, there was an explanation available as to why Ms Pitman would  give  away  the  settlement  figure  as  Ms Pitman believe it would impact her WINZ payments; and

(c)the Judge did not properly explain why Ms Pitman would sign the receipt if she had not received the money.

[34]   I agree with Mr Manning’s submission that although it was not impossible that Mr Elliot would waive his fee, it did not make sense in light of the documentary evidence about the settlement money. Further, although Ms Pitman expressed concern about the effect on her WINZ payment, there was also considerable evidence that she had no intention to forfeit the right to the settlement funds.

[35]   There was an evidential foundation for the Judge’s conclusion that although Ms Pitman signed the document, she never received the money. Ms Pitman had said that she did not understand what the document was for and her drinking on the morning she signed the document, likely added to her confusion.

[36]   The Judge believed Ms Pitman. He explained that he was left with the impression that “although Ms Pitman may be someone who might have been difficult

to work with, her evidence has the ring of truth to it”.22 The Judge considered it made no sense for Mr Elliot to go from saying, if there was a settlement, that he would get 33 per cent and then 50 per cent; to then say he would not charge Ms Pitman anything. It also did not make sense for Ms Pitman to give up the $10,000 considering there was ample evidence that she needed the funds.23

[37]   Mr Hawkins says the Judge was required to address in more detail the reasons as to why Ms Pitman would have signed the document. I disagree. The Judge was not obliged to refer to every aspect of a potential defence.24 He gave the reasons for believing Ms Pitman and his conclusion was a finding supported by the evidence. The Judge also had the advantage of seeing and hearing Ms Pitman’s evidence which would have put him a better position to assess her veracity and reliability, a crucial issue in this case.

[38]   Mr Hawkins also submits that the Judge failed to detail Ms Kupa’s evidence so failed to consider it. Ms Kupa had been previously represented by Mr Elliot in an employment dispute. She said that Mr Elliot had never expected any money for his services, and had represented her, and 20 other people, free of charge. She also noted she never signed an agreement for Mr Elliot’s services.

[39]   The Judge noted that Ms Kupa had given evidence but did not go into any detail on what she said. However, the Judge was not required to refer in detail to every item of evidence or issue that a party has advanced.25 The evidence of Ms Kupa did not go to the substance of the case advanced by Mr Elliot. The Judge adequately set out his reasons for reaching his decision. He made no error in failing to refer to her evidence.

[40]   The Judge made no error in his assessment of the evidence and, accordingly, there has been no miscarriage of justice.

22     Decision under appeal, above n 1, at [29].

23     At [29]–[30].

24     Sena v Police [2019] NZSC 55 at [37].

25 At [37].

Result

[41]The appeal is dismissed.

Grice J

Solicitors:

Hawkins Law Ltd, Havelock North for Appellant

Elvidges & Partners, Crown Solicitor Napier for Police