K v Police HC Gisborne CRI 2005-416-10

[2006] NZHC 1237

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2005-416-10

BETWEEN  K

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         3 and 4 August 2006

Counsel:        N H Wright for Appellant

D M Kerr for Respondent

Judgment:      16 October 2006 at 2.15pm

JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Napier

Counsel:

N H Wright, Gisborne

K V NEW ZEALAND POLICE HC GIS CRI 2005-416-10  16 October 2006

Introduction

[1]      In 2003 Mr K   was employed by Mr and Mrs Grealish, as the bar manager  of an  establishment  in  Gisborne  known  as  The  Irish  Rover.    Mr  and Mrs Grealish were the barkeepers for the tavern.

[2]      As a result of Police inquiries, Mr  K   was interviewed on suspicion of theft as an employee.  After providing an inculpatory statement to the Police, he was charged with theft.  However, when he came before the Court, Mr  K   entered pleas of not guilty to the five informations laid.

[3]      Following a defended hearing before Judge Adeane in the District Court at Gisborne from 21 to 24 March 2005, the charges were found proved.  Convictions were subsequently entered.  On 23 September 2003, Mr  K   was sentenced to undertake 250 hours community work and to pay reparation totalling $6,650.

[4]      Mr  K   appeals against conviction and, in part, against the sentence imposed.  The sentence of community work has been served.   Only the reparation order is challenged on the sentence appeal.

Grounds of appeal

[5]      The numerous points on appeal raised by Ms Wright, on behalf of Mr  K  ,  were  refined  during  the  course  of  argument.     What   follows   is   my reformulation of the arguments advanced:

a)      The District Court Judge erred in taking a “global approach” in determining whether the five theft charges had been proved.  In taking a “global approach”, the Judge failed to consider separately, in respect of each charge, whether Mr  K   had an intent to permanently deprive Mr and Mrs Grealish of the money and whether the Crown had excluded the reasonable possibility that Mr  K   had a “colour of right” or “claim of right” to the money taken.

b)       Mr  K   was denied a fair trial.  Two underlying reasons are given to support that contention:

i)        The first is an allegation of apparent bias said to result from excessive intervention on the part of the Judge and, more particularly, frequent interventions during the cross- examination of prosecution witnesses by counsel then acting for Mr  K  .

ii)       The second is an assertion that Mr  K   was denied the ability to put his defence directly to prosecution witnesses, particularly Mr Grealish and Mr Parata, the latter being a “bouncer” employed to work at the bar.  That inability is said to arise from warnings given to those witnesses that they could refuse to answer questions if their answers might incriminate them.

c)        The District Court Judge erred in making a reparation order because:

i)         The amount ordered included a sum of $1,650 in respect of identifiable cheques in respect of which Mr  K   was not accused of misappropriation.

ii)       There was a significant  dispute about  the quantum of cash taken  in  the  period  to  which  the   first   charge  referred. Therefore, the Judge was wrong to quantify the figure without obtaining a reparation report or holding a separate hearing on that issue.

[6]      A further point advanced was that the Judge failed to remind himself of the need to consider why people might lie in a statement given contemporaneously to the Police.  The complaint is that the Judge may have jumped to a conclusion of guilt without having considered an explanation for the original statement being wrong.  I regard that issue as one subsumed within the complaint about the “global approach”

taken by the Judge in determining whether the five charges had been proved beyond reasonable doubt.  For that reason, I do not deal with it separately.

[7]      On  the  sentence  appeal,  the  real  issue  is  whether  there  was  sufficient evidence for the Judge to assess an amount, referable to the first information only (see para [10](a) below), in respect of which a reparation order should be made.  The Judge acknowledged that he had, in part, estimated a minimum amount stolen and had added that to the total of $1650 which related to the  four  charges of theft involving specific sums.

[8]      Mr Kerr, for the Police, supported the convictions entered by the Judge and the sentence imposed for the reasons given by the District Court Judge.   Mr Kerr submitted:

a)      The Judge had considered the evidence fully and had reached determinations open to him on each individual charge.

b)       Evidence relevant to intent and colour/claim of right was common to all charges.  In those circumstances, it was unsurprising that the Judge adopted a similar approach when considering explanations given by Mr  K  .

c)       The Judge did not conflate discrete issues of intent to permanently deprive and colour/claim of right respectively.

d)Nothing that occurred at the defended hearing demonstrated apparent bias on the part of the Judge.   Nor did it demonstrate excessive or inappropriate intervention that might have rendered the trial unfair.

The charges

[9] The charges brought against Mr K straddle a period divided by enactment of the Crimes Amendment Act 2003. That statute made amendments to the law relating to offences of dishonesty. In part, those charges reflect the use of

more contemporary language.  In other cases, substantive charges have been made. The 2003 amendments came into force on 1 October 2003.

[10]     The informations laid charged that Mr  K  :

a)        Between 1 November 2003 and 19 February 2004, Mr  K   stole cash to a value of $11,844 from The Irish Rover.

b)       On 18 June 2003, in his capacity as an employee, Mr  K   stole cash totalling $1,100.

c)        Between 9  and  17  August  2003,  in  his  capacity as  an  employee, Mr  K   stole cash totalling $150.

d)Between  17  and  31  January  2004,  Mr  van  der  K    stole  cash totalling $200.

e)        Between  17  and  31  January  2004,  Mr  van  der  K    stole  cash totalling $200.

[11]     The  first, fourth and  fifth charges set  out  above  were brought  under the amended legislation.  They are governed by s 219(1) and (2) of the Crimes Act 1961 (the Act) in their amended form.  That provision states:

219    Theft or stealing

(1)     Theft or stealing is the act of,—

(a)      dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or

(b)      dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

(2)     An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that—

(a)       the property cannot be returned to any owner in the same condition; or

(b)     any owner is likely to be permanently deprived of the property or of any interest in the property.

[12]     The term “dishonestly” is defined in s217 of the Act as follows:

217    Interpretation

In this Part, unless the context otherwise requires,—

dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

[13]     The term “claim of right” is defined by s2 of the Act as “a belief that the act is lawful” although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[14]     The second and third charges were brought against Mr  K   under the pre-existing law dealing with theft as a servant.

[15]     Section 227(b)(ii) of the Act (prior to amendment) provided:

227    Punishment of theft

Every one who commits theft is liable to the following punishment:

…

(b)     To imprisonment for a term not exceeding 7 years if the object stolen is—

…

(ii)      Anything stolen by a clerk or servant which belongs to or is in the possession of his employer:

….

[16]     The term “colour of right”, was the term used before the 2003 amendments for what is now called a “claim of right”.  “Colour of right” was defined, in s 2 of the Act as meaning “an honest belief that the act is justifiable, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed”.   In most

cases nothing will turn on the changes made to the definition of the concept that underlies both terms: generally, see Dharam Singh v Police [2003] NZAR 596 at

601-603 per Williams J.

The case for the Informant

[17]     The  prosecution  case  was  that  Mr  van  der  K    used  two   distinct methodologies to effect the thefts.  The first charge, relating to the sum of $11,844 taken over a period of just over three months, was alleged to have been committed by the first methodology.   The remaining charges were alleged to have been committed through adoption of the second method.

[18]     The first method involved the use of the bar till.  The business tills were rung off daily, usually late in the evening (after trading had been completed) or early the following morning (before the doors were opened for the public).

[19]     This process is known as “zedding”.  Once the tills have been rung off, the till tape  and  corresponding  till  proceeds  are  brought  together  and  removed  for banking or, if the proceeds were not then removed, the tape is left with the proceeds to be banked later.

[20]     Mr  K   was alleged to have used this procedure during the course of the day’s trading,  with  the  consequence  that  money  was  removed  from the  till together with the relevant corresponding till tape.  Having completed that procedure, Mr  K   is alleged to have taken the cash while expunging any record of its receipt.

[21]     The  second  method  involved  catering  for  private  functions.    When  the business catered for such  functions,  tax invoices were raised and any payments received were rung up under the code “Special 9” on the till.  If this process were properly followed, the person operating the till would leave a note to explain the origin of the money to which the “Special 9” code referred.

[22]     Mr  K   is alleged to have misappropriated four such receipts in circumstances when he failed to ring up the “Special 9” code or leave an explanatory note.

[23]     Mr  K  ’s initial response to the allegations of theft was to admit removing money from the tills and to describe the way in which that was done.  In a written statement made on 19 February 2004, Mr  K   said that some money was for his personal use and some was for personal loans to other staff at the Irish Rover.  Mr  K   also said that he had used money taken from the till to pay “bouncers”, acquire property for the bar out of the money taken, but left no note of when that was done.

[24]     After giving that statement to the Police Mr  K   spoke with the business’ book keeper, Ms McGuinness.   She asked why he had taken the money, saying he had been treated like a member of the family.  She said that Mr  K   replied:

I don’t know why – I did it because it was there.

[25]     Three different themes emerged from the evidence Mr  K   elected to give at trial:

a)       Mr  K   recanted admissions made in the statement he made to Police on 19 February 2005.  He said he was aware, at that time, of a number of financial and  taxation  irregularities  in relation to the tavern business, its management, its staff and himself.   He was concerned that to reveal his whole defence when making his statement would necessarily have exposed those irregularities and placed others at risk.  Allied to this, allegations of improper or inadequate financial recording of bar takings were made against Mr Grealish.

b)       Mr  K   said that the detective who had taken the written statement (Detective Wilkie) had dissuaded him from obtaining legal advice, omitted to record exculpatory explanations given by him and

incorporated, as part of the statement, incriminating language which had neither been used nor adopted by him.

c)       Mr  K   admitted removing money from the tills but offered innocent explanations; these included drawing funds to pay legitimate business expenses or to reimburse himself for  moneys legitimately due to him as part of his terms of employment.

The District Court Judge’s decision

[26]     In a reserved judgment delivered on 22 June 2005, Judge Adeane found all five charges proved.

[27]     In effect, the Judge rejected Mr  K  ’s evidence, preferring to rely on his original written statement to the Police.   Where evidence of Mr  K   conflicted with that of Detective Wilkie and Ms McGuinness, the evidence of those other two witnesses was preferred.  I see no reason to interfere with those findings.

[28]     The Judge’s factual findings were influenced by the following factors:

[43] …

(i) Despite [Mr  K  ’s] claim of right, he made no written record of transactions which were otherwise prima facie irregular.

(ii) It is paradoxical that [Mr  K  ’s] at once criticises his employers accounting but then omits to record his own activities.

(iii) It is implicit in [Mr  K  ’s] claim of right, if accepted, that the whole accounting for these activities was in the defendant’s own head.

(iv) [Mr  K  ’s] first reaction to these allegations, demonstrated in his written statement, is one of acknowledgement, regret and remorse.

(v) [Mr  K  ’s] subsequent meeting with and comments to Deidre

McGuiness are consistent with the reactions in his statement.

(vi)  [Mr  van  der  K  ’s]  made  no  effort  prior  to  cross-examination  to address the issue of the four “special nine” payments.

(vii) [Mr  K  ’s] omitted to make his exculpatory explanation to others involved in the management of the Irish Rover.

(viii) [Mr  K  ’s] continues to rationalise and justify his own actions in a way which ignores the realities of the case.

[29]     Judge Adeane also referred to evidence of Mr  K   in respect of a sum of $600 taken from the till the day before his arrest.  The Judge said:

[44]  On  p23-25  of  the  transcript  of  his  evidence  [Mr  van  der  K  ’s] discusses a sum of $600.00 taken from the till the day before his arrest.  The evidence captures the convolutions which run through the case:

(i) [Mr  K  ’s] decided to pay $300.00 owed by his landlord to an electrician for work done on his flat.  The reason for this curious decision is not explained.

(ii) Having only $150.00 on him [Mr  K  ’s] added $600.00 taken from his employer’s till.

(iii) No note was left to record this transaction.

(iv) He then paid the electrician $300.00 from this fund.  In doing so he had effectively applied $150.00 of his own money and $150.00 of his employer’s money to pay a bill owed by his landlord to a contractor.  Apparently [Mr  K  ’s] reasoned that he might deduct this from future rent.

(v) On the same day, a co-worker asked [Mr  K  ’s] for a personal loan of $500.00.

(vi) [Mr  K  ’s] retained the balance of $450.00 taken from the till with the intention of adding $50.00 from his own wages the following day and lending the total to the co-worker.

[30]     In sentencing Mr  K  , on 23 September 2005, Judge Adeane said:

[2] Your employment arrangements, on any view of matters, were unconventional.   They involved unrecorded remuneration over and above your official salary. You continued to maintain that all that was taken was taken in that regard and that you were justified. I find that unacceptable for reasons, as I say, which I have already spelt out.  On the other hand, I have also been made aware of all of your personal circumstances.  In my view, a sentence of imprisonment in these circumstances, while available, would not accord with current thinking.   You have no previous relevant convictions. However, the matter is serious and, as I say, even now there is no acknowledgement whatsoever of the wrongness of what you have done.

[3] Because of the nature of the employment arrangements, reparation has not been an easy matter to address.  It is clear that you misappropriated four separate and identifiable cheques totalling $1650.00, and in my view that should be at least a starting point of reparation.   There is, over and above that, $10,000.00 or more alleged to have been stolen and in dispute, and I have really found it difficult to come to terms with what order ought to be made in this Court.

[4] At the end of the day, I acknowledge that there is an arbitrary element in the decision which I have made, but it is as follows: I am satisfied beyond reasonable doubt on the evidence that no less than a further $5,000.00 was taken which ought not to have been taken.   There will be reparation consequently in the sum of $6650.00.   So far as any balance which your employer   considers   entitled   to   receive,   as   I   say,   the   employment arrangements in which he acquiesced were so unconventional that I am not able to pursue the matter in this court.  There is, however, another tribunal where a different standard of proof applies; that is proof on the balance of probabilities.   If he wishes to pursue any moneys converted or taken, that option is available with a standard significantly less higher than the one the Police have to meet in proving your guilt of these offences. Otherwise, a sentence of community work is available.  But, as I say, the matter involves serious offending, an absence of remorse and a breach of trust.

Analysis of grounds of appeal

(a)  The “global approach” issue

(i)   Introductory comments

[31]     Ms Wright contended that the Judge erred in failing to analyse, charge by charge, whether the prosecution had proved its case beyond reasonable doubt.  She submitted that the Judge appeared to have approached the case globally,  having regard to his apparent rejection of Mr  K  ’s evidence and his explanation that he was entitled to take money from the till to pay a cash supplement for his wages and to meet other business expenses.

[32]     Ms  Wright   also   submitted  that,  because  the   interview  conducted  by Detective Wilkie covered only the first charge, based on “zedding” the till, it was inappropriate  for  the  Judge  to  rely  wholly  on  the  written  statement  to  reject Mr   K  ’s explanations,  notwithstanding the existence of evidence  from Mr Grealish that tended to support what Mr  K   had said.

[33]     Although all five charges were heard together for convenience, there is no doubt that each charge had to be considered separately.   It was necessary for the Judge to  address the elements of each charge to  determine whether  it  had been proved beyond reasonable doubt.  In this case, the need to do that was heightened by

a change in legislation, which required three of the charges to be dealt with under statutory provisions that differed from those applying to the remainder.

[34]     Having   said   that,   if  there   were   sufficient   commonality  between  the ingredients of each offence and the grounds upon which the District Court Judge relied to find the charges proved, there would be no basis on which this Court could interfere with the Judge’s conclusion.   Mr Kerr submitted that such commonality existed.

(ii)  The “zedding” charge

[35]     The one charge that relied upon the premature “zedding” of the till alleged that between 1 November 2003 and 19 February 2004, Mr  K   stole cash totalling $11,844.

[36]     The events which formed the subject of this charge all occurred after the

2003 amendments to the Act came into force.   Accordingly, the applicable law is s219(1) of the Act, in its present form.

[37]     There were three essential elements that the Crown was required to prove beyond reasonable doubt.  They were:

a)        Mr  K   took cash to the value of $11,844 from the till.

b)       Mr    K   acted  dishonestly and  with an  intent  to  deprive

Mr and Mrs Grealish of that money permanently. c)  The money was taken without “claim of right”.

[38]     Section 219(2) makes it clear that an intent to deprive any owner permanently of property includes an intent to deal with it in such a manner that it cannot be returned to any owner in the same condition or any owner is likely to be permanently deprived of the property.  Those examples are, however, not exhaustive.

[39]     Further, the term “taking” does not include obtaining ownership, possession of or control of any property with  the  consent  of the  person  from whom  it  is obtained, whether or not consent is obtained by deception: s219(3).

[40]     To act “dishonestly” means to act without a belief that there was express or implied consent to or authority for the act carried out from a person entitled to give consent or authority: see the definition of “dishonestly” in s217.  It follows that, to prove the charge of theft, the prosecution was obliged to prove, beyond reasonable doubt, that  Mr    K    “dishonestly  …  [took]”  the  money,  knowing  that Mr Grealish had not authorised him to do so.  In other words, the prosecution was required to  exclude the reasonable possibility that  Mr  van  der  K    acted  in  a genuine belief that the act was lawful, notwithstanding that his belief may have been based “on ignorance or mistake of fact or of any matter of law”: definition of “claim of right” is s2(1) of the Act.

[41]     Mr Grealish’s evidence was that a “protocol” existed whereby a note would be left when cash was taken from the till to  cover business expenses, including remuneration for bouncers and band members.   Mr Grealish said that he reminded Mr  K   of that protocol.

[42]   However, Mr Grealish also accepted that he operated a “cash based” remuneration system with informal accountancy practices.  Both bouncers and band staff  were  paid  in  cash  while  some  remuneration  was  applied  against  a  staff member’s “tabs”.

[43]     On one occasion, Mr Grealish gave Mr  K   a motor vehicle in full and    final   settlement    of   amounts   outstanding,   suggesting   that    he   owed Mr  K   a substantial amount of money at the time of the latter’s arrest.

[44]     Mr  Grealish accepted that  if Mr    K   had wanted to  reimburse himself for any amounts owing he could have taken the money from the till and left a note.

[45]     The critical issue is whether the Judge was right to hold that the prosecution had excluded the reasonable possibility of the “zedding” moneys being taken under a “claim of right”.  As mentioned in para [13] above, a “claim of right” will exist if Mr  K   had a belief that what he did was lawful, even though that belief may have been based on ignorance, mistake of fact or of any matter of law other than the enactment giving rise to the alleged offence.

[46]     With respect to the District Court Judge, I cannot see how such a reasonable possibility  could  have  been  excluded  given  Mr Grealish’s  own  evidence  of  the informal way in which Mr  K   was paid for services rendered.   While I accept  the  force  of  the  view  that  Mr van  der  K    could  have  left  a  note  in accordance with the “protocol” the central question was whether, by not leaving a note, a claim of right could be excluded.   R v Bhaskaran (CA185/98, 19 August

1998)  is  a  case  of  some  relevance  on  this  point.    Blanchard J,  delivering  the judgment of the Court, said:

… a defence of colour of right could succeed if there was a reasonable possibility that Mr Bhaskaran honestly believed that his wife was entitled to the money and that he was entitled to take possession of the bank card in order to obtain the money. …

[47]     For those reasons, I respectfully disagree with Judge Adeane’s conclusion that the reasonable possibility of a claim of right had been excluded.  The appeal will be allowed to set aside the conviction on the “zedding” charge.

(iii)  The “Special  9” charges

[48]     Of those charges which were based on the “Special 9” procedure two, each alleging theft of $200 between 17 January 2004 and 31 January 2004, were subject to proof of the same elements as the “zedding” charge.

[49]     The remaining two charges, alleging theft of $1,100 on 18 July 2003 and

$150 between 9 and 17 August 2003, were brought under the old regime on the basis charges of “theft as a servant”.

[50]     In order to establish the charge of theft as a servant, the prosecution was required to prove beyond reasonable doubt that:

a)       Mr  K   acted fraudulently and without “colour of right”

b)       With intent to deprive Mr and Mrs Grealish permanently of the cash alleged to have been taken.

[51]     Theft is committed when the offender moves the thing (in this case cash) with intent to steal it.  The definition of “colour of right” is set out in para [16] above.

[52]     In Bahskaran, the Court of Appeal held that:

… The defence of colour of right applies to any theft and so can negative one of the ingredients of robbery. Colour of right involves an honest belief in an entitlement to take the property in question. “A person has a claim of right...if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact” (R v Bernhard [1938] 2 KB

264, 270). The belief does not have to include belief in the right to take the property in the particular way in which it was taken.

[53]     The “Special 9” charges were distinct in nature.   They related to specific transactions.  The general evidence was that while Mr  K   often failed to follow an accepted protocol requiring a receipt to be stapled to a note stating from whom the amount was received to facilitate inclusion in the business accounts, often he would  tell  Mr  Grealish  of what  had  occurred  so  that  he  could  pass  on the information to the book keeper.

[54]     The real issues on the “Special 9” charges was whether the prosecution

a)        had proved beyond reasonable doubt that Mr  K  , in fact, took the money paid on account, and

b)       had excluded the reasonable possibility of a claim/colour of right.

Mr  K   did not recall receiving the money in issue but accepted that often he did not follow protocol.

[55]     The totality of the evidence before the Judge was sufficient, in my view, to find that Mr  K   took the specific money alleged and did so with an intent to deprive Mr Grealish permanently of that money.

[56]     On the claim/colour of right issue, the “Special 9” takings were of a different character from the “zedding” allegations.   They involved dealing with money paid by a customer  for  a particular  purposes.   They were  more nearly analogous  to misappropriation of particular funds than the general business monies to which the “zedding” charges referred.

[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 that he could have honestly believed he was entitled to deal with monies paid for a particular purpose.

[58]     In my view, the credibility findings made by the Judge and the general body of evidence was sufficient for the Judge to  find the “Special 9” charges proved beyond  reasonable  doubt.    In  my  view,  the  Judge  was  right  to  hold  that  the prosecution had excluded the reasonable possibility of a colour of right defence.

(b)  The fair trial issue

[59]     Ms Wright’s submission that, contrary to the guarantee contained in s 25(a) of the New Zealand Bill of Rights Act 1990, Mr  K   was denied a fair trial must be evaluated having regard to the way in which the hearing developed.

[60]     The starting point is that a Judge who sits alone to determine a criminal case is entitled to ask questions to assist performance of the fact-finding function.  More active questioning is permitted in a Judge alone trial than in a jury trial.   In E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 142 (CA) at 153, the Court of Appeal said:

We agree with Barker J that a trained judicial officer, knowing that he has to find the facts himself, is entitled in practice to ask  more questions  than

would be wise if he were sitting with a jury: he has to give a jury an example of impartiality as well as taking care not to usurp their function.

[61]     Judicial interventions must be viewed in the same light.  That was accepted in

R v H (2002) 19 CRNZ 518 (CA) at 526-528, paras [30]-[34]:

[30] This ground of appeal raises an issue of principle which goes to the heart of the criminal trial process. It concerns the extent and manner  to which a trial Judge may intervene in a criminal trial to question witnesses personally, without compromising the adversarial nature of the trial.

[31] In R v Matthews (1984) 78 Cr App R 23, in delivering the judgment of the Court of Appeal in England, Purchas LJ at pp 32-33 stated the applicable principles as follows:

To summarise these authorities the following propositions appear to emerge:

(1)      Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive;

(2)     The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either upon the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf  upon  vital  prosecution  witnesses  by  cross- examination administered by his advocate on his behalf;

(3)       In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other;

But the question which is posed ultimately for this Court is ‘Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that  the  jury’s  verdict  might  be  unsafe?’  In  the  presence  of conditions in which this Court has been alerted in the manner to which we have referred, it appears to us that if there is a possibility of a denial of justice then this Court ought to intervene.”

[32] This passage was cited by this Court with approval in E H Cochrane Ltd v MOT [1987] 1 NZLR 146; (1987) 3 CRNZ 38 (CA). Alongside it however should be put the balancing principle set out in E H Cochrane at p

150; pp 41-42 as to the legitimate judicial involvement in the course of a trial:

It is recognised . . . that even under the adversary system the Judge is entitled, provided that he avoids descending into the arena, to engage in what was called by Jeffries J in McClean v Ministry of Transport

Auckland M722/83, 16 September 1983, ‘a lively and active participation in the trial process’.  Of course,  the more lively  his activity, the more wary the Judge has to be of the pitfall. We would put it that he should avoid any appearance of taking on an adversary role himself  or  of espousing a  cause,  but that he can rightly be constructive, particularly in clarifying issues or eliminating irrelevancies.”

[33] Intervention by a Judge in performing the legitimate and important role of assisting a jury in a criminal trial can have the incidental effect of advancing  the  case  of  the  Crown  or  defence  to  some  extent.  That consequence of clarification of evidence is often inevitable and is not in itself objectionable. What the Judge is, however, bound to do is to refrain from stepping outside the limits of the judicial role, especially by assuming that of the Crown or defence in the trial. As well, while acting within the legitimate scope of the judicial role, the Judge must not act in a manner which reasonably gives rise to an impression there is a lack of neutrality in the Judge’s conduct of the trial. This reflects the underlying principle that a presiding Judge should not show bias (R v Parata (2001) 19 CRNZ 352 (CA), at para 12).

[34] Particular difficulties can arise from judicial intervention in the course of cross-examination in a criminal trial. The Judge may give the impression of criticism of the conduct of the cross-examination of a particular witness by counsel. This can equally apply to prosecution as well as to defence counsel. In such a case the Judge’s own questions, especially if asked in more neutral terms than those of counsel, may also indicate the Judge is impressed with the witness, reinforcing the credibility of the witness in the eyes of the jury. There is a risk also that frequent interventions may have a detrimental  effect  on  the  efficacy  of  cross-examination  of  important witnesses. Sometimes they can seriously interfere with the legitimate designs of counsel to weaken the adversary’s case by a structured and planned cross- examination. In general, while cross-examination is being competently undertaken, it is prudent for a Judge to interrupt only to the extent necessary to clarify matters in the evidence the jury may misunderstand: R v Sharp [1994] QB 261; [1993] 3 All ER 225 (CA), at p 270; p 235; R v M (1991) 7

CRNZ 439 (CA), at p 444.

[62]     The case as run on behalf of Mr  K   at the defended hearing was not foreshadowed in advance.  No criticism can be made of that: Mr  K   was lawfully entitled to elect to keep his powder dry.  However, the Judge’s need to intervene to understand the relevance of certain lines of questioning and to give appropriate self-incrimination warnings  must  be approached  against  that background.

[63]     In particular,  it  is clear  that, during the course of cross-examination, the Judge raised explicitly with counsel acting for Mr  K   the “tax evasion” allegations that underlay much of the defence case.  The Judge remarked that counsel

was entitled to explore those matters, but that he would  need to  give witness’s appropriate warnings should he do so.

[64]   In those circumstances, the self-incrimination warnings were entirely appropriate.  Any disadvantage those warnings may have caused to the conduct of the  defence  case,  was  not  sufficiently  fundamental  to  require  a  finding  that Mr  K  ’s case could not adequately be put.

[65]     In my view, the case was adequately put.  If a witness decides to forego an opportunity to explain a proposition put on the basis that he or she may incriminate themselves, the Judge  is left  with the balance of evidence on which to  make  a finding.  My view is that the Judge appreciated that position and made his findings of fact on that basis.

[66]     While it is true that the Judge intervened a good deal when asking questions, having regard to the way in which Mr  K  ’s case was presented, that was not unreasonable.   The interventions were not excessive or inappropriate   On any view, the Judge’s interventions did not deny Mr  K   a fair trial.

[67]     There is no basis for a suggestion of apparent bias on the part of the Judge of the type necessary to impugn a decision: see, generally, Man O’War Station Ltd v Auckland City Council (Judgment No 1) [2002] 3 NZLR 577 (PC).

(c)   Sentence appeal

[68]     The sentence appeal was based on the amount of $5000 being added to the reparation order as an estimate of the minimum amount stolen by Mr  K   on  the  “zedding”  charge.    The  balance  of  the  reparation  order  was  made  by calculating the total of the four specific charges involving the “Special 9” procedure, an approach that was open to the Judge.

[69]     Having regard to my conclusion on the “zedding” charge, the $5000 awarded by way of reparation on that charge must be set aside.

[70]     There is no basis to interfere with the balance of the reparation ordered.  The money was found to have been stolen and the Judge was entitled to order reparation.

Result

[71]     For the reasons given, the appeal against conviction is allowed, to the extent that the conviction entered on the charge of stealing cash to a value of $11,844 from The Irish Rover is set aside.  Otherwise, the conviction appeal is dismissed.

[72]     The sentence appeal is allowed by setting aside the quantum of the reparation order made in the District Court and in lieu thereof ordering that reparation be paid in the sum of $1,650 on the basis outlined by the Judge.

[73]     I thank counsel for their assistance.

P R Heath J

Delivered at 2.15pm on 16 October 2006