K v Police HC Gisborne CRI-2005-416-10

[2006] NZHC 1557

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2005-416-10

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 December 2006

Counsel:         A M Simperingham for Appellant

D M Kerr for Respondent

Judgment:      11 December 2006

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Woodward Crisp, Gisborne

Crown Solicitor, Napier

K V NEW ZEALAND POLICE HC GIS CRI-2005-416-10 11 December 2006

[1]      The appellant applies under s 144 of the Summary Proceedings Act 1957 for leave to appeal on a question of law to the Court of Appeal from the judgment of this Court  delivered  by  Heath J  on  16 October  2006  dismissing  his  appeal  against conviction by Judge Adeane in the District Court at Gisborne on charges of theft as an employee.  The District Court found all five charges proved.  Heath J allowed the appeal against one but dismissed the appeal in relation to the other four charges.

[2]      The ground of appeal proposed is:

Did the High Court err in law when it held that whereas a claim of right defence was available in respect of the charge (CRN 4016014944) that between 1 November 2003 and 19 February 2004, Mr K   stole cash to the value of $11,844, the claim of right defence was not available in respect of the four other charges which were before the Court and which related to the same complainant and approximately the same (but not identical) timeframe?

[3]      Heath J distinguished between what was termed the “zedding” charge on which he allowed the appeal and the other four “Special 9” charges in respect of which the appeal was dismissed.

[4]      The “zedding” charge related to the taking of cash amounting to $11,844 from the till without accounting for it to the complainant who owned the hotel at which the appellant was employed.  The process that was supposed to be followed was for purchases of drinks to be recorded on the till tape, the total of which ought to have balanced with the physical cash remaining.  It was the appellant’s practice in relation to the removals of the moneys the subject of the “zedding” charge to remove both cash and till tape so there was no evidence of the removal available to the proprietor.  There was evidence of informality in the way in which the appellant was paid for services rendered.  It was his obligation to remunerate bouncers and band staff in cash from the till.

[5]      On one occasion the complainant gave the appellant a motor vehicle to settle accounts outstanding and Heath J found that the complainant owed the appellant a substantial amount of money at the time of the latter’s arrest.  Heath J found there to be colour of right in relation to the $11,844 which had not been excluded by the

Crown despite the fact that the appellant had failed to leave a note of his takings in accordance with so-called protocol said to have been agreed.

[6]      In relation however to the four “Special 9” charges the Judge took a different view.  Mr Simperingham argued that these related only to a total of $1,650 and as it was put in argument the Judge had as it were swallowed the camel of the major charge  but   strained   at   the   gnat   in   finding   the   four small   charges   proved. The “Special 9” charges were ones in relation to which patrons were refunding the complainant for special events of different kinds.  Again there was protocol requiring the receipt to be stapled to a note giving particulars of the person from whom the amount was received to facilitate inclusion in the business accounts.   The Judge distinguished the “Special 9” takings from the “zedding” allegations.  From the point of view of the payer they involved dealing with money paid by a customer for a particular purpose.   The Judge categorised them as more nearly analogous to misappropriation of particular funds than the general business moneys to which the “zedding” charges referred.  On the question critical to colour of right, namely the appellant’s position, Heath J stated:

[57]     While Mr K   suggested an ability to use the “Special 9” monies to off-set business expenses he had made on Mr and Mrs Grealish’s behalf, I do not accept tat he could have honestly believed he was entitled to deal, in that way, with monies paid for a particular purpose.

[7]      The  Judge  concluded   that   the   credibility  finding   was   made   by  the District Court Judge and that the general body of evidence was sufficient for the District Court to find the “Special 9” charges proved beyond reasonable doubt. Heath J  was satisfied that the Judge was right to hold that the prosecution had excluded as a defence the reasonable possibility of colour of right.

[8]      Mr Simperingham argued that the logic of the colour of right defence which led to the acquittals by Heath J in relation to the “zedding” conduct was of equal application in respect of the “Special 9” moneys.   In relation to each the moneys were those of the complainant.  But in relation to the former there was a colour of right defence that the proper discharge of the appellant’s duties required him to make contra-payments.  There was no logical reason why it was permissible to make such payments from the till the same should not have been the case in respect of the

“Special  9”  moneys.     Indeed,  it  might  be  argued  that  the  prospects  of  the complainant  discerning  what  had  taken  place  were  negligible  in  relation  to  the money taken from the till get reasonably high in relation to the “Special 9” money until and unless the debtor was able to show he had made payment.  There was the prospect of the complainant would make enquiry of the debtor or the prospect of the fact that moneys had been intercepted would come to light.

[9]      The difficulty is that s 144(1) confines any further appeal to questions of law. The formulated question asserts that a claim of right in relation to certain funds cannot exist in relation to other funds taken about the same time.  It is in logic and as a matter of reasoning perfectly possible as Heath J found that there may be colour of right in relation to one set of transactions and not in the case of the other.

[10]     The question for this Court is whether in terms of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 it is open to a reasonable District Court and on appeal a reasonable High Court, properly directing itself, to find that colour of right was excluded. Notwithstanding the points attractively presented by Mr Simperingham I find myself unable to categorise the point as one of law rather than one of fact.

[11]     Taking the point at its highest by asserting potential error of fact as an issue of law in accordance with the judgment of Cooke J in Daganashi v Ministry of Immigration [1980] 2 NZLR 130 (CA), care must be taken to avoid usurping authority not conferred on this Court by Parliament.

[12]     Mr Simperingham cited the observation of Blanchard J in Waller v Hider

[1998] 1 NZLR 412 where he said at 413:

…The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal… in the end the guiding principle must be the requirements of justice...

But Blanchard J was concerned with an appeal under s 67 of the Judicature Act not s 104 of the Summary Proceedings Act.

[13]     I am of opinion that the appellant is unable to get over the first hurdle of demonstrating an issue of law and the further questions to which s 144 gives rise do not fall for consideration.

[14]     The application must therefore be dismissed.

W D Baragwanath J