Kirby v Police
[2020] NZHC 770
•22 April 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000007
[2020] NZHC 770
BETWEEN TREVOR PATRICK KIRBY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 March 2020 Appearances:
A Bailey for the Appellant
S Bicknell for the Respondent
Judgment:
22 April 2020
JUDGMENT OF NATION J
Introduction
[1] A young man travels overseas for a short time. He arranges to leave computer items with a family friend. One computer contains years of photographs and records he needs for his tax returns. On his return from overseas, he asks the friend to make the property available to him. The friend refuses to do so unless the young man’s mother does what the friend wants. Was the friend wrongly convicted of theft?
[2] The appellant, Mr Kirby, was found guilty of one charge of theft.1 Judge Couch sentenced Mr Kirby to a fine of $1,500, reparation of $4,500 and ordered him to pay
$130 in court costs.2 Mr Kirby appeals his conviction on the grounds the Judge
reversed the presumption of innocence and burden of proof when determining the
1 Police v Kirby [2020] NZDC 26457 (conviction judgment).
2 Police v Kirby [2020] NZDC 26456 (sentencing judgment).
KIRBY v POLICE [2020] NZHC 770 [22 April 2020]
charge, that inadmissible hearsay evidence was admitted and relied upon, and the Judge adopted illogical reasoning in support of his factual findings.
Background
[3] The complainant, Jeremy Thomas (Jeremy), resides in Queenstown and planned an overseas trip between June and October 2018.3 Jeremy was due to depart on his trip from Christchurch. In anticipation of his departure, Jeremy approached Mr Kirby and asked if he could leave his car at Mr Kirby’s home and stay for two or three nights. This is what occurred. Mr Kirby had been a longstanding friend of Jeremy’s mother, Michelle.
[4] When Jeremy arrived at Mr Kirby’s home, he had with him two computers and some headphones which were stored in a brown box. One of the computers was an older model and the other a new MacBook. It was agreed Jeremy would leave the items with Mr Kirby and collect them when he returned.
[5] While overseas, Jeremy sent a message to his father, Mark Thomas (Mr Thomas), in Queenstown, asking him to collect the box from Mr Kirby. Jeremy did not discuss this with Mr Kirby.
[6] Jeremy returned to New Zealand on 11 October 2018 and collected his car. Upon returning to Queenstown, he realised his father had not collected the property. Jeremy asked his father to contact Mr Kirby. According to Jeremy, Mr Thomas reported to his son that Mr Kirby said he still had the box.
[7] On 25 November 2018, Jeremy went to Christchurch to collect the property. When he asked Mr Kirby for his laptop back Mr Kirby refused, indicating it was the only hold he had over Jeremy’s mother. This and another conversation on 6 January 2019 were recorded by Jeremy.
3 Because I refer to both Jeremy Thomas and his father Mark Thomas in this judgment, I will refer to the complainant as “Jeremy” and his father as “Mr Thomas”.
[8] Throughout these conversations, Mr Kirby indicated he had the property in his possession or would be able to recover it and was not going to return it until Michelle did what he wanted.
[9] Mr Kirby stated, both in these conversations, and in his evidence in the District Court, that he had received threats in his mailbox that he believed came from Andy, Michelle’s partner. Mr Kirby felt so threatened by these messages that he removed a number of cars from his property, at considerable expense. It appears Mr Kirby had demanded an apology from Michelle and Andy as well as reimbursement for the cost of storing the cars.
[10] In the conversation on 6 January 2019, Jeremy told Mr Kirby he had done everything he could to persuade Michelle to apologise or pay Mr Kirby. There was nothing more he could do. Jeremy asked Mr Kirby if he would get his laptops back. Mr Kirby replied he would not.
[11] Mr Kirby is a retired businessman. He represented himself in the District Court. In his evidence in the District Court, Mr Kirby denied he retained possession of the property or knew where it was. He stated it was not at his address. He said he presumed Mr Thomas had collected it. He believed the property had been in Jeremy’s vehicle. Mr Kirby also suggested the items could have been stolen, as he had previous problems with theft at his address. He accepted that, in the recorded conversations, he had spoken as if he still had possession of the items and would make them available if Jeremy’s mother and Andy did what he wanted. But, in evidence, Mr Kirby said, in making those statements, he had been lying because it was the only way he could bring pressure to bear on Jeremy’s mother and Andy.
[12]It is against this background Mr Kirby appeals his conviction.
Principles on appeal
[13] Section 232 Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A
miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.4
District Court decision
[14] Judge Couch was satisfied beyond reasonable doubt that Mr Kirby retained possession of the computers and other items, or deliberately parted with possession of them. The Judge rejected Mr Kirby’s version of events given in his evidence. The Judge said Mr Kirby had no knowledge that the conversations with Jeremy on 25 November 2018 and 6 January 2019 were being recorded. Accordingly, the Judge considered Mr Kirby was being entirely candid and not lying during those conversations.
[15] The Judge considered Mr Kirby had become obsessed with the idea that Michelle and Andy were threatening him, and he wanted to use possession of Jeremy’s property to get back at them. He considered Mr Kirby’s evidence given in the District Court to be unreliable and the recorded conversations were an honest reflection of events.
Submissions
Appellant’s submissions
[16] The first ground relied upon was that the Judge reversed the presumption of innocence and burden of proof in determining the charge. Counsel submitted the Judge assessed the evidence from the basis that Mr Kirby had a significant motivation to lie “to avoid a criminal conviction.”
[17] Secondly, the Judge relied upon inadmissible hearsay evidence. This related firstly to evidence from Jeremy that, when he found he did not have the property, he asked his father to contact Mr Kirby. His father told Jeremy that he had rung Mr Kirby and Mr Kirby said, “yes the box is here, it’s sitting in front of the counter”. The second item was a handwritten affidavit prepared by Mr Kirby. Mr Kirby said in evidence he
4 Criminal Procedure Act 2011, s 232(4).
sent this to Mr Thomas. Mr Thomas swore it before a JP and then returned it to Mr Kirby. Referred to in the affidavit and attached to it was a floor plan of Mr Kirby’s garage and first floor area on which Mr Thomas had shown where, according to his affidavit, he had seen “the computer box”.
[18] The Judge treated both items of evidence as being hearsay and said the evidence needed to be treated with “caution”. Counsel submitted the Judge erred in not determining whether or not the evidence was admissible. Furthermore, Mr Bailey submitted, rather than treating the evidence with caution, the Judge appeared to have placed significant weight on it.
[19] Thirdly, Mr Bailey submitted the Judge adopted illogical reasoning in support of his factual findings. He argued it was illogical for the Judge to have decided that, in the second conversation, Mr Kirby would have continued to pretend he had possession and control of the property if this was not true, given Jeremy had made it clear there was nothing further he could do to have his mother and her partner comply with Mr Kirby’s wishes.
[20] Counsel argued Mr Kirby had been consistent in what he said in the conversations so the Judge should not have relied on that as reason to reject Mr Kirby’s evidence at trial that what he had said in the conversations was a lie.
[21] In summary, Mr Bailey argued there had been errors made by the Judge and they were errors that, individually and collectively, had a consequence in that they had resulted in a miscarriage of justice.
Respondent’s submissions
[22] For the respondent, Ms Bicknell accepted the Judge should have decided whether or not hearsay evidence was admissible before referring to it, even with caution. She submitted the fact there had been some reference by the Judge to Mr Kirby having a motive to lie would not necessarily have resulted in a miscarriage of justice. She argued that, the way in which the Judge had considered how Mr Kirby’s position had not changed, even when he had been told there was nothing more Jeremy
could do to bring about what Mr Kirby wanted, was not totally illogical or indicative of reasoning that was not open to him.
[23] Ms Bicknell noted it is not in every case that a comment about the defendant’s motive to lie will result in a miscarriage of justice. The Judge in this case had provided other reasons for his decision.
[24] Counsel submitted the Judge’s findings were not illogical and his reasoning was sound. Specifically, she referred to passages from the recorded conversations where Mr Kirby explains, with reference to the items, that he will “make an effort to find them”, “might’ve thrown them in the rubbish”, they had “mysteriously disappeared”, and that he had “given the box to someone else to look after”. When Mr Kirby’s explanation that he had continued to lie in the recorded conversations was considered in light of the entire conversation, his explanation was “impossible to accept”.
[25] Overall, Ms Bicknell submitted that, in his decision, the Judge had to decide whether what Mr Kirby said in the two conversations provided proof that he had been in possession of the property and had deliberately withheld it from Jeremy or whether, with the evidence Mr Kirby had given in court, it was a reasonable possibility that either he never had possession of the property or it had been taken by Mr Thomas or someone else without his knowledge. The Judge had found that Mr Kirby, in his evidence in court, was not a credible witness. The Judge decided what Mr Kirby said in his telephone conversations established the truth as to what he knew of the items and how he had dealt with them.
[26] Even if the Judge had been in error in the way he dealt with hearsay evidence or made a comment about Mr Kirby potentially having a motive to lie when giving evidence, this would not be enough to establish that a miscarriage of justice had occurred with his being found guilty of theft.
[27] Ms Bicknell thus submitted the conviction is safe and the appeal should be dismissed.
[28] She referred to Sena v Police in which the Supreme Court discussed the kind of reasons judges should provide.5 The Court acknowledged that “imperfection of expression is practically unavoidable, particularly in oral judgments.”6 An “appellate court must take into account any advantages a trial judge may have had” and ought to exercise “customary caution”.7
Discussion
The evidence that could prove theft
[29] In his evidence, Jeremy explained how he had arranged with Mr Kirby to leave his car and the items he was not taking on his travels at Mr Kirby’s address. He said, the night before he left, he took photographs of everything. He had photographs of the headphones, a Dell computer and a brand new MacBook. He put what he was leaving in New Zealand in a cardboard box. He said he asked Mr Kirby if he could leave the box with him along with the car. Mr Kirby had said it would be fine for Jeremy to leave his stuff there and collect it when he came back. Jeremy gave Mr Kirby the dates of his return from the travel.
[30] While Jeremy was away, he asked his brother to contact his father to arrange for his father to pick up the box of computer equipment. When Jeremy returned to Christchurch, he collected his car and drove to Queenstown. He did not collect the box because he assumed the box had been picked up.
[31] About a week after he was back, Jeremy realised he did not have the box and contacted his father. It was in relation to that, he said in evidence, that his father rang Mr Kirby and Mr Kirby said “yes the box is here, it’s sitting in front of the counter”.
[32] At that point, the Judge intervened. He said “this is clearly hearsay” and then added, “while it is not necessarily inadmissible, it needs to be treated with some caution”. The Judge clarified the prosecution were not planning on calling Mr Thomas as a witness.
5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575
6 At [37].
7 At [38].
[33] Jeremy then said he had come to Christchurch on 25 November 2018. He went to Mr Kirby’s house, was invited in and they talked. Jeremy recorded the conversation.
[34] A disc with a recording of that conversation and the second conversation were produced by consent. This first conversation lasted some seven minutes. At the beginning of that conversation, Jeremy said he needed his laptops to do his tax returns and he could not because his laptops were with Mr Kirby in a box. Mr Kirby’s immediate response was to say, “well, look, I’ll tell you what … I’m not going to give your laptops back until I get the information from your mother. It’s the only hold I’ve got over her”. Jeremy said that they had an agreement he could collect the items when he got back from overseas. In response, Mr Kirby referred to the fact that Jeremy had seen his mother. Jeremy said Mr Kirby should not hold him responsible for what Michelle was doing. Again, Mr Kirby said “I’m sorry, it’s the only hold” that he had. Jeremy said it was affecting not just himself but also his employer. Mr Kirby said “oh, I’ve, I’ve mislaid it” and “I, I don’t know where it is”. Jeremy said to him “you do know where it is. It was here. You have my laptop”. Mr Kirby interrupted saying “look, I’m sorry you’ve got mixed up with this. You can blame it on your mother”. Jeremy made it clear he was there to collect his laptops to which Mr Kirby’s response was “I had a deal with your mother and she shit on me”. When asked as to why Jeremy was being held accountable for things his mother had done, Mr Kirby said “it’s the only hold I’ve got over her”. When Jeremy said he was not going to leave without his laptops, Mr Kirby said “I don’t know where they are”. When Jeremy persevered in saying that Mr Kirby had the laptops and that Jeremy would not be leaving without them, Mr Kirby said “I’ll make an effort to find them when I get, when I, when your mother gives me …” Mr Kirby then started talking about the complaint he had against Jeremy’s mother.
[35] At another point, when Jeremy insisted his laptops were with Mr Kirby, Mr Kirby said he would have to go and look to find them but he was not prepared to do that until he had written Jeremy’s mother a letter. The conversation ended with Mr Kirby reiterating that he was holding the laptops because it was the only hold he had over Jeremy’s mother. When Jeremy said this was not fair, Mr Kirby said that Jeremy had been going to call in and pick up the items on the way through. Jeremy had not
done that, so he said “you didn’t do it so I threw the – I might have thrown them in the rubbish”.
[36]The evidence of Jeremy at that point established:
(a) he had left the computer equipment and other items at Mr Kirby’s address with Mr Kirby’s agreement, on the basis he would be able to collect the items on his return;
(b) Mr Kirby knew the items had been left there on that basis;
(c) Mr Kirby either still had the items or had dealt with them in a way he would still be able to recover them and return them to Jeremy if Jeremy’s mother acted in the way Mr Kirby wanted;
(d) a reasonable inference could be drawn, from the fact Jeremy had contacted his father, had not located the items and had gone to Mr Kirby’s address to ask for their return, that neither Jeremy nor his father had possession of the items; and
(e) Mr Kirby was refusing to return the items to Jeremy as a way of indirectly putting pressure on Jeremy’s mother to act as Mr Kirby wanted.
[37] Mr Kirby cross-examined Jeremy. He referred to Jeremy’s evidence that Jeremy had put a computer in a box and asked where he had put the box. Jeremy said it was in the spare room down by the front door, the bedroom he stayed in for the night when he arrived at the house. Mr Kirby asked few other questions despite the Judge telling him on several occasions he must give Jeremy an opportunity to comment on anything Mr Kirby might say differently about what happened to the property. In cross-examination, Mr Kirby did not suggest in any way that the property had not been left at his home. He did not suggest that Jeremy’s father had collected the items. Mr Kirby obtained confirmation, as he said he wanted to, that he had been having a relationship with Jeremy’s mother although, in response to a question from the Judge, he said it could have been a friendship relationship.
[38] The Judge however asked a number of questions. As a result of those questions, Jeremy reiterated he had left the items in a spare room at the house for them to be collected when he came back from overseas and Mr Kirby had seen what was being left there. The Judge asked why Jeremy’s father had not collected the items.
[39] Following those questions, Mr Kirby was asked if he had any questions. As a result of that, there was an exchange where Jeremy confirmed he had left the items on top of a set of drawers beside the door going into the garage. There were some further questions asked by the Judge as a result of which Jeremy confirmed the items had been left on top of the chest of drawers, not inside them. Following that answer, Mr Kirby put it to Jeremy that he was “telling porkies”. Jeremy was adamant he was not lying. That had been where he put the box. Mr Kirby did not question him further.
[40] Mr Kirby gave evidence. He began by going into some detail about his relationship over many years with Jeremy’s mother and also his father. He talked about what happened when they separated. That led him to say Jeremy’s mother was in a new relationship. The Judge said Mr Kirby seemed “fixed” on events concerning Jeremy’s mother but he needed to know what Mr Kirby had to say about the items that had been left at the house. At that point, Mr Kirby said Jeremy had asked if he could leave his car there with his gear while he went overseas. He talked about Jeremy having left his car in the building. The Judge asked him where he understood the box was. Mr Kirby said “the only time I saw his computer was when he was sitting on the bed when I went through to do the washing one day and he was fiddling on it”. This had been in the downstairs bedroom. He said, when he went overseas, Jeremy told him he had left it in the boot of the car and he had made a point of leaving a key to the car so his father could call and pick it up. This was not a proposition that had been put to Jeremy.
[41] Mr Kirby then said, when Jeremy’s father had rung him, he had presumed that Mr Thomas had picked up the items. Mr Kirby said he had contact with Mr Thomas but, after he had not heard from Mr Thomas for a couple of months, Mr Thomas had called him and said he knew where he last saw the box. Mr Kirby said that, on an earlier trip up from Queenstown, Mr Thomas had been at his home for a time and had said he needed to pick up a box of Jeremy’s things. Mr Kirby had said he would go
upstairs and make a cup of tea. He said this was when Jeremy was still overseas. He said Mr Thomas had told him that Jeremy had asked him specifically to do this.
[42] He said, sometime after this, Mr Thomas had come upstairs and they had conversed about various things before Mr Thomas left. Mr Kirby said:
… and we left – and I presumed he had picked up the computer box thing. It was just a cardboard box as I remember it, he used to drop his stuff in, and I presumed it had gone down to Queenstown.
[43] With this evidence, Mr Kirby had thus confirmed that Mr Thomas had spoken to him about needing to collect Jeremy’s items. In the course of giving evidence about that, Mr Kirby confirmed he had known the property was in a cardboard box as Jeremy had explained. Mr Kirby did not say he had seen Mr Thomas take the box. He said nothing about giving Mr Thomas a key to Jeremy’s car so he could collect the box from the car where, in evidence, he had said he understood Jeremy had left it.
[44] Mr Kirby then said Mr Thomas had telephoned him later and had talked about having seen the computer equipment at Mr Kirby’s place. It was as a result of that conversation that Mr Kirby had sent him a document in affidavit form, which Mr Thomas had signed and returned to Mr Kirby.
[45] What Mr Thomas said in that affidavit was hearsay evidence as to whether Mr Thomas had actually seen those items on an earlier visit and as to where he had seen them. Mr Kirby’s evidence that, in response to a conversation with Mr Thomas, he had sent Mr Thomas an affidavit in which he asked Mr Thomas to set out in writing what Mr Thomas had told him, was not hearsay evidence as to how Mr Kirby responded to the conversation he had with Mr Thomas. There was nothing in his account of those events to suggest that, when Mr Thomas spoke to him about the missing items, Mr Kirby told Mr Thomas that he had already collected the property or that Mr Thomas was not telling the truth in saying he had seen the items inside Mr Kirby’s home. Mr Kirby said he had prepared an affidavit for Mr Thomas to confirm this was what had happened. With his evidence, Mr Kirby thus confirmed there had been a conversation with Mr Thomas about the property.
[46] The Judge then questioned Mr Kirby as to why, in the conversations he had with Jeremy, Mr Kirby had indicated he was withholding the property to get some satisfaction from Jeremy’s mother. It was in responding to those questions Mr Kirby said he had been telling lies in those conversations. The Judge then said he wanted Mr Kirby’s explanation about the box of computers. In response to that, Mr Kirby said the only thing he could think of was that, when Mr Thomas came upstairs when he was meant to be picking up the computers, he must have left them on the floor and they could have been stolen. He could only guess that Mr Thomas had taken things out of the boot of Jeremy’s car and, instead of putting them in his Toyota Corolla, he must have left them on the floor from where they had disappeared.
[47] Jeremy was not challenged over the essential aspects of his evidence as to how he came to leave his property with Mr Kirby, his evidence as to Mr Kirby knowing it was there and his agreeing it would be returned to Jeremy on his return from overseas. Mr Kirby had told Jeremy on 27 October 2018 that he was keeping the property to have a hold over Jeremy’s mother. Given that and the way Mr Kirby said he dealt with Mr Thomas when Mr Thomas spoke to him about the property, Mr Kirby’s suggestion in evidence that the property had been collected by Mr Thomas or had been stolen did no more than raise a fanciful possibility.
[48] There was then the second conversation which took place on 6 January 2019 when Jeremy met with Mr Kirby at a bar. That conversation began with Mr Kirby, at length, talking about how he had been threatened, how he had to move vehicles that had been in storage, what that cost, and of the grievances he had against Jeremy’s mother and her new partner. Mr Kirby then talked at length about Jeremy’s mother and her new partner. Jeremy responded in a way that indicated he heard and understood what Mr Kirby was saying. There was then this exchange:
TK (Mr Kirby): Hold up. All right, I’ve just started to make notes but I haven’t got it finished. What I would need before I manage to find these things of yours, which, it’s not, they’re not at your place, I can tell you that straightaway (inaudible), you know – um, they’re not at my place, sorry.
JT (Jeremy): So, so in the, in the box, in the box that I left at yours, there was my old laptop, which is …
TK: I didn’t check what was in it.
JT: ei, it’s about, it’s about …
TK: I’ve, I’ve given the box to somebody else to look after.
[49] This exchange ended with Jeremy saying how much he needed the MacBook back and Mr Kirby saying he would be writing out a list of what he needed and would post it down to Jeremy. Jeremy explained he had done everything he could for Mr Kirby. He suggested Mr Kirby should go to the Police or to the courts to get a restraining order against his mother and her partner. Mr Kirby explained why he did not want to do that. There was then this exchange:
JT: You holding my laptops from me … TK: I’m not holding them.
JT: Oh, Trev. Ah, so what do you want then? TK: Ah …
JT: What do you want for me to get my laptops back?
TK: Well, well, for a starter, she owes me 2,000, 2,000 for me having to shift all my fuckin’ cars and that …
[50]Later, Jeremy asked:
JT: But why are you having a go at me or holding my laptops against me? TK: Because that’s the only, that’s the only hold I’ve got against them now.
[51] At a later point in the conversation, Jeremy told Mr Kirby that 10 years of memories were on his computer. To that, Mr Kirby said “I’m not refusing to relea-, release the properties … I haven’t got the properties to release at this point, so it doesn’t matter”. And later:
TK: I’d given them to someone to store.
JT: To store, so you’ve given them to someone to look after, so you know where they are?
TK: I, I, I can get them back at, at a given t-, at a given time, but unt-, unt-, until your mother come, comes, comes … Ah, righto, the thing is, a written apology for [sic] Andy for his threatening notes stuffed in my letterbox on June the 1st and June the 2nd 2018, and his agreement that he or any of his associates will not visit the street I live on.
[52] Over the balance of the conversation, there were a number of statements made by Mr Kirby in which he reiterated that Jeremy was not going to get his property back. Mr Kirby was going to hold the property because it was a way of having a hold over Jeremy’s mother and her new partner, unless he got an apology from the mother’s new partner. The conversation ended with Mr Kirby saying Jeremy would not get the property back until he achieved the resolution he wanted with Jeremy’s mother and her new partner.
[53] At trial, Mr Kirby accepted that the recording of what he said during this second conversation was an accurate record of what he had said. In that conversation, he made a number of statements which provided compelling evidence that he had previously been in possession of Jeremy’s property and he knew it had not been returned to Jeremy or to anyone on Jeremy’s behalf. There was no suggestion in that conversation that the property had been collected by Jeremy’s father or that it had been stolen. There were statements clearly to the effect that, if Jeremy’s mother and her partner did as Mr Kirby wanted, he could have the property returned to Jeremy. The only reasonable inference that could and should have been drawn from that evidence was that Mr Kirby knew where that property was and it had not been stolen from him.
[54] On an appeal, the Court must reach its own view on the evidence. On the evidence I have referred to, I am quite satisfied the charge had been proved beyond reasonable doubt.
The Judge’s comment that could have reversed the onus of proof
[55] The first ground of appeal as to the Judge reversing the onus of proof arose out of a statement the Judge made to Mr Kirby when the Judge was questioning him towards the end of his evidence. The Judge said there were some things he wished to put to Mr Kirby, to be fair to him and to give him an opportunity to comment on them. In that context, the Judge referred to Mr Kirby having said he had been in business for 30 years, that he was always honest and straight up with people, yet his explanation for the charge of theft was that he had repeatedly and deliberately lied to Jeremy. The Judge asked Mr Kirby why he would have behaved in that way when there might be a submission that he had an incentive to lie to avoid criminal prosecution.
[56] Mr Bailey submitted that, with this comment, there was an indication the Judge had assessed Mr Kirby’s evidence from the basis that he had a significant motivation to lie to avoid a criminal conviction. He said this approach was clearly impermissible and had the potential to result in a miscarriage of justice.
[57] In Mann v Police, Dunningham J allowed an appeal where a defendant had been convicted through the Judge accepting a Police officer’s account of what he had observed of how a car was being driven on a sustained loss of traction charge and had rejected the defendant’s account of what occurred.8 In deciding what evidence to accept, the Judge, in his decision, had said, “who has the reason in this case not to be truthful? Well, of course, the defendant and I know it is not easy when you have been charged with something”. The Judge had also gone on to say, “the defendant of course has more to lose and I suspect the defendant has tried to reinvent what has happened”.
[58] Dunningham J referred to relevant authority. She concluded the Judge had used inappropriate logic in his judgment. In the circumstances of that case, she was unable to determine that the Judge’s credibility findings stood independently from the erroneous reasoning. For that reason, she allowed the appeal and set aside the conviction.
[59] In Mann, Dunningham J referred to relevant statements from the Court of Appeal in R v Leef:9
[29] It is, however, one thing, and a perfectly proper approach, for prosecuting counsel to suggest an accused has a motive to lie and has lied because of previous convictions, the improbability of his evidence, its conflict with proved facts or other circumstances of the case. If that approach is taken, the Judge may choose to reflect those submissions in summarising the prosecution case. But it is quite another matter, and an incorrect approach, for prosecuting counsel or the Judge to suggest in submissions or in summing-up that an accused’s motive to lie results from no more than the fact that he or she is the accused.
[30] If it is suggested that the accused’s status as such is his or her sole motive to lie, such a direction invites more searching scrutiny of an accused’s evidence than that of the complainant or other Crown witnesses. It almost inevitably risks skewing the burden and standard of proof against an accused. Further, as the High Court said in Robinson, remarks such as the italicised sentence jar when measured against the presumption of innocence and, in this
8 Mann v Police [2015] NZHC 588.
9 At [20]-[22], citing R v Leef CA14/06, CA 57/06, 24 August 2006.
country, do not sit easily with the New Zealand Bill of Rights Act 1990, s 25(c).
…
[32] Here, even though the Judge again mentioned the burden and standard of proof after commenting on the appellant’s motive, our view is that the bluntness of the comment about Mr Leef’s motive to lie greatly outweighed that passage. Read as a whole, the effect of [77] of the summing-up was to leave the jury with the clear impression that the accused had a strong motive to lie simply because he was the accused. That impression, taken with the Judge’s direction two paragraphs later to apply “robust common sense” to the resolution of the facts, leads to the conclusion the summing-up was unfair to the accused. For the reasons discussed above and in Robinson the appropriate course is to allow the appeal against conviction and order retrial.
[60]Dunningham J also referred to the Supreme Court decision in R v Stewart:10
[26] A witness should not be accused of having a motive to lie without there being an appropriate evidential foundation for the accusation. A generalised allegation that an accused person has a motive to lie simply to avoid conviction is particularly serious because it subverts the presumption of innocence. Only if the accused were presumed guilty could there be any basis for the suggested motive.
[61] In the current case, the Judge’s comment was made by way of a question and framed as only a possibility. There was nothing in the Judge’s decision to indicate he had adopted this line of reasoning in ultimately concluding that Mr Kirby’s evidence at trial was not credible.
[62] In contrast to Mann, this was not a situation where the Judge was having to make an assessment as to the credibility of a defendant as against the credibility of another witness. The Judge had to decide whether he could accept as truthful the evidence Mr Kirby had given in court when that evidence was in conflict with the statements he made in two conversations with Jeremy.
[63] Also, in contrast to Mann, the question was not asked simply because Mr Kirby was facing a criminal charge. The Judge asked the question because of the way Mr Kirby had acknowledged he had lied in making the statements in the two conversations he had with Jeremy.
10 At [23], citing R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425.
[64] The Judge also posed the question in a way which indicated it might not necessarily be the appropriate way for him to make an assessment as to Mr Kirby’s credibility when giving evidence. He asked the question as if it was something that might be submitted by the prosecutor. The possibility of Mr Kirby lying in his evidence because he was facing a criminal charge was not expressed with the bluntness or in the context of a decision or summing up in the way that had led the Court of Appeal to decide in R v Leef there had been unfairness of the sort that necessitated a retrial.
[65] In his decision, the Judge discussed the evidence Mr Kirby had given. He referred to it as being “initially very discursive, to the point where” the Judge had to direct him to focus on the key events.11 The Judge referred to his having asked Mr Kirby to comment on the fact he had continued to falsely claim to have the computers when it was clear there was nothing further Jeremy could do to influence his mother. He said he had continued to lie because he wanted to continue putting pressure, through Jeremy, on his mother. The Judge said “I find this explanation impossible to accept, given the manner in which the conversation had progressed”.12 The Judge said that “[a]s to the fate of the computers themselves, the defendant gave what was initially very confusing evidence”.13 The Judge then referred to Mr Kirby’s evidence that Mr Thomas had presumably picked up the box. The Judge said “[c]learly that was wrong as the box was never returned to Jeremy Thomas”, a conclusion and inference that was open to the Judge on all the evidence.14
[66] The Judge then said, when pressed further, Mr Kirby had rather vaguely suggested that somebody might have come onto his property and stolen it. The Judge noted this was not an explanation that Mr Kirby suggested when initially questioned by the Police much closer to the time of those events.
[67]After discussing Mr Kirby’s evidence, the Judge said:
11 Conviction judgment, above n 1, at [15].
12 At [16].
13 At [18].
14 At [19].
[24] I can only find the defendant guilty if I am satisfied beyond reasonable doubt that he did retain possession of the computers and other items in question, or if he deliberately parted with possession of them. I can only do that if I reject his version of events.
[68]The Judge concluded:
[25] Having heard all the evidence today I do reject the defendant’s version of events. It is clear that the defendant had no knowledge that his conversations with Jeremy Thomas were being recorded on 25 November and 6 January. From their content, I am entirely convinced that the defendant was being candid in what he said in those conversations and that he was not lying.
[26] He had become obsessed with the idea that his former friend Michelle Thomas and her relatively new friend, this man Andy, were threatening him unjustly and unreasonably and he wanted to use the possession of these computers to get back at them through Jeremy Thomas.
[27] In essence, my conclusion is that I am left with no reasonable doubt that what the defendant said in those conversations was correct and that what he said in his evidence today is unreliable.
[69] In his consideration of the evidence and in his decision to reject Mr Kirby’s evidence at trial as being untruthful, the Judge made no mention of the fact that, when giving evidence, Mr Kirby had a motive to lie.
[70] It appears the Judge was trying to be fair to Mr Kirby in asking him to comment on a possible motive for him to lie in his evidence. Neither a prosecutor nor a Judge should suggest to a jury that such a general motive would be relevant to an assessment of credibility. The Judge should not have asked about it in the way he did.
[71] Nevertheless, I have not been persuaded that, with the way the Judge asked Mr Kirby to respond to what would have been an impermissible line of reasoning, there was ultimately a miscarriage of justice because of such an error. In the particular circumstances of this case, there was good reason to reject Mr Kirby’s evidence at trial that he had lied in the two conversations as unreliable without having to consider in any way what his motive for lying in Court might have been.
The Judge’s reference to hearsay evidence
[72] The second ground of appeal related to what was submitted was the impermissible way the Judge had relied on hearsay evidence. When Jeremy first said
in evidence his father had reported to him that Mr Kirby indicated he still had the property, the Judge noted this was hearsay evidence. At the time, the Judge said he had to treat the evidence with caution. In this regard, the Judge was in error.
[73]In terms of s 18 Evidence Act 2006, the Judge had to decide if:
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
[74] The Judge made no assessment as to these matters but simply proceeded on the basis the evidence could be admitted, although had to be treated with caution.
[75] The Judge referred to this evidence in his decision. He noted that, in his evidence, Mr Kirby said he could not recall such a conversation with Mr Thomas so there was disagreement about whether such a conversation had occurred. Counsel argued that this hearsay evidence must have been material to the Judge in reaching his decision.
[76] There was nothing in the Judge’s decision which would suggest he relied on hearsay evidence, as to Mr Kirby telling Mr Thomas that he still had the property, in rejecting Mr Kirby’s evidence at trial as to Mr Kirby having lied to Jeremy in the recorded conversations. He noted that Mr Kirby had not accepted he had talked to Mr Thomas in the way Jeremy had referred to. To the extent there was a rejection of Mr Kirby’s evidence as to the disputed conversation, it was based on the Judge observing that Mr Kirby’s evidence, that he thought Mr Thomas must have collected the items, was wrong. The Judge reasonably inferred on all the evidence that Mr Thomas had never collected the property.
[77] Because he had not relied on hearsay evidence in this respect, it is not surprising the Judge did not formally caution himself as to how he ought to weigh such
evidence in the balance. The Judge had however noted, when first observing the evidence was hearsay, that it had to be considered with caution.
[78] This was not a case where any adverse inference could be drawn from the fact Mr Thomas was not called as a witness for the prosecution. Neither the Police nor Jeremy could reasonably have anticipated that Mr Kirby’s defence at trial would be to suggest the property had been collected from his address by Mr Thomas. Jeremy had spoken to Mr Kirby twice in an attempt to obtain the property. In neither of those conversations had Mr Kirby suggested the property had already been collected by Mr Thomas.
[79] There was thus no reason for the prosecution to think they would have to prove that Mr Kirby had been in possession of the property at a time Mr Thomas had visited Mr Kirby’s address or that, at trial, they would have to prove Mr Thomas had not collected the property.
[80] The way in which the Judge referred to this hearsay evidence and of the need to treat it with caution was not an error that led to a miscarriage of justice. It was not, in Mr Bailey’s terms, an error of consequence.
[81] The same can be said of the way the Judge dealt with the affidavit from Mr Thomas in which Mr Thomas portrayed where he had seen the property when he had visited Mr Kirby’s house. It was Mr Kirby who sought to put that hearsay evidence before the Court. The Judge noted it was hearsay evidence. At the time Mr Kirby sought to put this document before the Court, the Judge said it carried “very little weight” and had to be treated with caution. Again, the Judge should first have decided whether to admit Mr Kirby’s evidence as to the statements made by Mr Thomas in the affidavit.
[82] Mr Kirby’s evidence as to what led to his preparing that document and the fact that he prepared the document was not hearsay evidence insofar as it provided evidence as to Mr Kirby having communicated with Mr Thomas over the property and the fact Mr Thomas had said to Mr Kirby that he had seen the property and Mr Kirby did not, either through any verbal response or in his subsequent actions in preparing
the affidavit, do anything to indicate he rejected what Mr Thomas had told him. There was nothing in the Judge’s decision to indicate he had relied on the hearsay evidence from Jeremy, as to what Mr Thomas reported as having been told by Mr Kirby, as weighing against the honesty and reliability of Mr Kirby’s evidence at trial on the crucial issue as to whether what Mr Kirby had said in the two conversations was all a lie.
[83] For those reasons, the error the Judge made in not clearly ruling that statements in the affidavit were hearsay and inadmissible, for the purpose of proving the truth of statements referred to in them, has not led to a miscarriage of justice. Had this hearsay evidence not been admitted at all, it would have made no difference to the way admissible evidence was sufficient to prove the charge against Mr Kirby.
Submitted illogical reasoning
[84] The third ground was that there had been illogical reasoning when the Judge commented that it had made no sense for Mr Kirby to say that his whole reason for falsely pretending to Jeremy that he was still in control of the property was to have a hold over Jeremy’s mother and her partner, when he knew from what Jeremy had told him that there was nothing Jeremy could do to have those people act in the way Mr Kirby wanted.
[85] It was open to the Judge to adduce from all the evidence presented that Mr Kirby was either lying in the recorded conversations or in his evidence before the Court. In the recorded conversations, Mr Kirby’s motivation was consistent. The evidence given before the Judge contained many inconsistencies. The fact Mr Kirby did not know he was being recorded during the conversations did make it more likely that he was telling the truth in those conversations.
Conclusion
[86] This was not a case where the Judge’s determination required an assessment as to the credibility of different witnesses. The evidence of Jeremy was unchallenged. That evidence, with the hearsay evidence put to one side, together with evidence from Mr Kirby over how he had dealt with Jeremy and Mr Thomas, was more than sufficient
to prove the essential elements of the charge of theft which had been brought against Mr Kirby.
[87] The only evidence which might have detracted from the strength of the prosecution case was Mr Kirby’s evidence that, in his two conversations with Jeremy, he had lied in indicating he had been in possession of the property and was refusing to return it to Jeremy as a way of putting pressure on Jeremy’s mother and her new partner to take certain action.
[88] The Judge rejected Mr Kirby’s evidence in this regard, deciding that what Mr Kirby had said in the two telephone conversations was correct and what he said in evidence at trial was unreliable. The trial Judge was at an advantage in making this credibility finding through hearing Mr Kirby’s evidence as it was given.
[89] The Judge did not rely on inadmissible hearsay evidence, or the possibility that Mr Kirby had a motive to lie in giving his evidence because he was facing a criminal charge, in rejecting Mr Kirby’s evidence at trial.
[90] For valid and permissible reasons, the Judge decided that what Mr Kirby had said in the two conversations, as to how he had been in possession of the property but was choosing not to return it, was correct. The conclusions he reached in this regard were more than open to him. On my assessment of all the evidence, the conclusion the Judge came to was fully justified given the uncontested and admissible evidence.
[91] I am thus satisfied that, at trial, there was no error of consequence. There was no error that, in the circumstances of this case, produced a miscarriage of justice.
[92]Accordingly, Mr Kirby’s appeal is dismissed.
Solicitors:
A Bailey, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.
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