M v Police HC Napier Cri-2009-441-49

[2010] NZHC 793

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2009-441-000049

M

Appellant

v

POLICE

Respondent

Hearing:         13 April 2010

Appearances: G W Calver for Appellant

G Thornton for Respondent

Judgment:      31 May 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against conviction and sentence.

[2]      Following  a  defended  hearing  in  the  District  Court,  the  appellant  was convicted of two charges, theft and threatening to do grievous bodily harm.

[3]      He  was  sentenced to  150  concurrent  hours  of  community work  on  each charge, and ordered to pay reparation of $20,586.80.

M V POLICE HC NAP CRI-2009-441-000049  31 May 2010

[4]      On appeal, his counsel Mr Calver requested that submissions on sentence be deferred until after the outcome of the appeal against conviction was known.  This judgment therefore deals only with the conviction appeal. It raises two key issues:

i)Whether the District Court Judge correctly applied the concept of claim of right to the facts

ii)Whether there were excessive judicial interventions, which resulted in an unfair trial or the appearance of bias and pre- determination.

The evidence at the District Court hearing

[5]      At the hearing, the prosecution called two witnesses: the complainant Mr Hudson, who was a farmer, and the arresting police officer.  In addition there was some written evidence, admitted by consent.

[6]      The appellant, Mr M  , also gave evidence.

[7]      The evidence established that in late-2008 Mr Hudson had advanced Mr M   the sum of $9450 to enable the latter to obtain a lease of some land which he wanted to farm on his own account.

[8]      At the time Mr M   was an employee of Mr Hudson, working on Mr

Hudson’s farm.

[9]      The evidence also established that the two men verbally agreed Mr M   would repay the advance by allowing Mr Hudson to put some of his lambs on the leased property for fattening.  The basis of the deal was that for every kilogram of weight the lambs gained after coming onto the leased property, Mr M   would be entitled to a credit of $2 against the advance.  Once the amount of the advance had been extinguished, Mr M   was to be entitled to a cash credit of $2 per kilogram of added weight for any remaining lambs still to be processed.

[10]     In evidence Mr M   said he calculated the debt would be repaid after approximately 450 to 460 lambs had been fattened.

[11]     Mr Hudson had a contract to process a certain number of his lambs through a firm called Rissington Breeding, and accordingly it was a further term of the agreement between Mr Hudson and Mr M   that when it came time for the Hudson lambs on Mr M  ’s leased property to be killed, they would be processed through Rissington.

[12]     It was also agreed it would be Mr M  ’s responsibility to draft the lambs and arrange for them to be killed when they reached the target weight of approximately 40-41 kilograms.  The target weight had been set by reference to Mr Hudson’s contract with Rissington, because it was at that weight the lambs would be suitable for the Rissington contract.

[13]     The undisputed evidence was that Mr Hudson moved 896 of his lambs onto the leasehold property and that in due course, in January 2009, two batches of his lambs were drafted and dispatched through Rissington, as had been agreed.

[14]     During this time the appellant was also still working as a farm worker for Mr Hudson on the latter’s own farm, albeit on a part-time basis.   The terms of his employment were that he would be paid an hourly rate and that he was to keep a record of his hours and submit them for payment.

[15]     On 22 February 2009 Mr Hudson went overseas.   While he was away, Mr M   resigned unexpectedly from his employment.  Mr Hudson did not return from overseas until 15 April 2009.

[16]     Mr Hudson testified his expectation was that by the time of his return, all the remaining lambs on the leased property would have been processed and the money banked in his bank account.  As Mr M   knew, the arrangement Mr Hudson had with Rissington was that if stock were booked through them, the proceeds would be direct credited to Mr Hudson’s farming account.

[17]     However,  when  Mr  Hudson  checked  his  account,  no  payment  had  been received.

[18]     Mr Hudson testified that he then phoned Mr M  .   According to Mr Hudson’s version of events, Mr M   was evasive about the whereabouts of the lambs.  Mr Hudson said he would ring again on Sunday to arrange to come to the leased property for an inspection.  When he phoned on the Sunday, Mr M   told him to stay away.   Mr Hudson claims that when he insisted on coming so he could find out what had happened to his lambs, Mr M   said “If you come up the driveway I will shoot you”.

[19]     It  was  this  alleged  threat  which  constituted  the  basis  of  the  charge  of threatening to do grievous bodily harm.

[20]     After   the   two   phone   conversations,   there   followed   an   exchange   of acrimonious texts, during the course of which Mr M   sent Mr Hudson a text stating “I killed 214 lambs and received $17,900.88.  I can pay it back in instalments as I kill lambs.”

[21]     Mr Hudson said he then ascertained that Mr M   had sold the 214 lambs to a firm other than Rissington, with the result that the money had gone into Mr M  ’s account and not Mr Hudson’s account, as it would have done had they been processed through Rissington.

[22]     For his part, Mr M   admitted having sold the lambs through another organisation and at a time when they were not at the target weight.

[23]     In  explanation  he  stated  there  had  been  problems  beyond  his  control  in getting the lambs to target weight and that he needed to get the lambs off the property because he required the space for the purposes of another contract.

[24]     He also claimed that although Rissington would still have been prepared to accept the lambs (albeit at a lower price than if they had been at the target weight), he got a better price by going to the alternative organisation.

[25]     Mr M   further testified that the reason he sent the lambs elsewhere was so that he and not Mr Hudson had control of the proceeds.   He testified he wanted control of the proceeds because he was concerned Mr Hudson was intending to renege on the deal about the lambs and was also intending to withhold his wages.

A.I decided to sell the lambs in a way that I could get the proceeds and then negotiate with John over what was owing, that’s basically what I did.

Q.You say you weren't confident at all of getting what was owing to you?

A.       No.

Q.       And you therefore decided to sell the lambs?

A.In a manner that I could get control of the proceeds then I could actually negotiate with John over what was outstanding basically.

[26]     When asked why he was not confident of getting what was owed to him, Mr M   claimed there had been past problems with Mr Hudson over another deal, that in a conversation prior to his departing overseas Mr Hudson had attempted to re- negotiate the agreed figure for the lambs, and that by then their working relationship had broken down.

[27]     Mr M   said his intention was to prepare an invoice, deduct the monies that were owed to him and then distribute the balance to Mr Hudson.

[28]    In his evidence, Mr Hudson denied that prior to the appellant’s sudden resignation there had been any difficulties in their relationship.  He further contended (and this was accepted by Mr M  ) that in the past there had been no problems regarding payment of wages.

[29]     Mr M   also acknowledged that the first time he tendered any money to Mr Hudson for the lambs was after criminal charges had been laid. Mr Hudson said he received a cheque for $14,900, which he did not accept because in his view it did not adequately compensate him for the loss he had suffered as a result of the lambs being sold at below target weight.

[30]     As for the threatening charge, Mr M   denied ever uttering any threat to shoot.  He said the first conversation after Mr Hudson’s return from overseas had been brief and that in the second conversation he had informed Mr Hudson that the lambs had been killed and that it had been necessary to get rid of them from his leased property in a hurry.  He acknowledged that although Mr Hudson had asked for details, he would not give them to him.  In cross-examination he was unable to explain why he had not been prepared to provide the details.  He claimed that during the course of the conversation Mr Hudson was abusive towards him and that all he had said was “You are lucky I do not knock your block off”.

The District Court Judge’s decision

[31]     Turning first to the charge of theft, the Judge identified the relevant provision as being s 219(1)(b) of the Crimes Act 1961:

Dishonestly without claim of right dealing with any property with the intent to deprive any owner permanently of that property after obtaining possession of or control over the property in whatever manner.

[32]     The Judge then applied that definition to the facts, adopting the following analysis:

•      The property in question was the 214 lambs.

•      The 214 lambs were the property of Mr Hudson.

•      The lambs never belonged to Mr M  .

•Mr M   knew the lambs did not belong to him and he knew the terms on which they had come into his possession.

•      Mr M   knew of Mr Hudson’s contractual obligations to

Rissington.

•Mr  M    knew  that  selling  the  lambs  to  another  firm would be a breach of his contract with Mr Hudson.

•The clear point of acting as he did was to gain a position of commercial advantage, and in the course of doing that he disposed of property which, while he had certain permission to do so, it was limited and on terms.

•In deliberately and knowingly going beyond those terms, he dealt with the property in such manner that it must necessarily have deprived Mr Hudson permanently of ownership of it.

[33]     The  Judge  then  said  the  question  was  whether  Mr  M    did  so dishonestly and without claim of right.  After referring to the decisions of Hayes v R [2008] NZSC 3 and R v Cooley [2008] NZCA 149, the Judge continued:

[14]      I am entirely satisfied on the strength of the clear evidence given by the defendant himself that he knew in substance that his actions in selling someone else’s stock were both unlawful and without claim of right.  He was acting dishonestly.   He was acting dishonestly to position himself to best advantage given the view he held that he had moral entitlement to further monies from Mr Hudson.  He was not entitled to dispose of Mr Hudson’s property in order to secure those rights in the way in which he did.  In those circumstances the correct inference is that he was acting unlawfully and dishonestly.  There can be no claim of right unless one honestly believes that the law permits what one is doing, not simply that one is morally entitled by one’s own reasoning process to do it.  In these circumstances, in my view, the  act  of  selling  these  214  lambs  constituted  an  act  of  theft  and  Mr M   is convicted accordingly.

[34]     As for the charge of threatening to do grievous bodily harm, the Judge found that charge to be proved, reasoning as follows:

[15]      There is one further matter – it is alleged also that in the course of the discussion about coming to check on the state of things Mr M   told Mr Hudson that if he came up the driveway he would be shot.   Mr M   says that while he may have used the expression, “I should have knocked  your  block  off’  that  he  did  not  use  the  words  claimed  by  Mr Hudson.  Here then the Court has had the advantage of seeing and hearing both witnesses.  It will have become apparent that this Court has not formed a favourable view of Mr M  , of his views on his own rights and entitlements  and  the  actions  which  he  has  taken.    The  evidence  of  Mr Hudson was given carefully, deliberately and in my view it is reliable evidence.   There is no doubt that there was a dispute between these two people.  Even now there is an emotional overlay in Mr M  ’s view of matters which is apparent while he is giving evidence.  I am satisfied despite Mr M   no longer recollecting it that he used the expression which Mr Hudson alleges, namely, “If you come up the drive you will be shot” and that when doing so he intended that to be taken seriously by Mr Hudson.

[16]      Those are the ingredients of the charge.  There is no need to prove that he had either the present ability or the intention to carry out the threat provided that it was made and intended to be taken seriously.  In the context of a dispute of this kind, with a significant emotional overlay, how could any such threat be taken otherwise than seriously. That charge is also proved.

Grounds of appeal

[35]     On appeal, counsel Mr Calver advanced two grounds of appeal:

i)        The Judge erred in his analysis of the concept of claim of right. ii)     Mr M   did not receive a fair trial, because the Judge

adopted an overly interventionist style and reached premature conclusions.

[36]     I turn now to consider each ground.

Discussion

Did the Judge err in his analysis of the concept of claim of right?

[37]     The offence alleged against Mr M   in the information was:

did commit an offence against

CRIMES ACT 1961 SECTION: 219 and 223(b) in that he

DID STEAL 214 LAMBS VALUED AT

$17900.88 THE PROPERTY OF JOHN CARLYON HUDSON

[38]     Although the information does not specify the relevant sub-section of s219, counsel agree the Judge was correct in identifying ss(1)(b) as being the appropriate provision

Dishonestly without claim of right dealing with any property with the intent to deprive any owner permanently of that property after obtaining possession of or control over the property in whatever manner.

[39]     An absence of claim of right is a definitional element in the offence created by s 219(1)(b). Accordingly it was incumbent on the prosecution to prove its absence beyond reasonable doubt, although there was an evidentiary burden on Mr M   to raise it as an issue.

[40]     As noted by the Supreme Court in Hayes, “claim of right” has replaced the older and more familiar expression “colour of right.” Claim of right is defined in s2 of the Crimes Act:

claim of right, in relation to any act, means 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.

[41]     Following Hayes and Cooley, the key points regarding “claim of right” are:

•The essence of the defence is that the accused must believe the act in issue was lawful.

•A  qualifying belief  does not  have  to be reasonable or  based on reasonable grounds.

•Previously  colour  of  right,  subject  to  certain  qualifications,  had meant “an honest belief the act is justifiable”.   The change from

‘justifiable’ to ‘lawful’ and the removal of the word ‘honest’ as a qualifier of the word ‘belief’ in the new definition is intended to exclude the possibility of an accused raising the defence based on an idiosyncratic moral claim their actions were justifiable.

•     The belief therefore must be as to a legal, rather than a moral right.

[42]     It is clear from the Judge’s decision in this case that he was cognisant of these principles.

[43]     Mr Calver accepts the Judge correctly stated the relevant legal principles, but submits  his  application  of  those  legal  principles  to  the  facts  was  wrong.    In particular, he argues the Judge wrongly characterised Mr M  ’s view of his entitlement to the further monies from Mr Hudson as being a view that he had a moral entitlement.  Mr Calver says correctly analysed, Mr M  ’s view was a view that he had a legal entitlement.

[44]     I agree that Mr M  ’s assertion of a claim to outstanding wages and payment of money under the lamb contract was the assertion of a legal right rather than a moral right. He had a belief of legal entitlement to that money.

[45]     However, in my view, that is not sufficient to constitute a claim of right for the purposes of the offence with which he was charged.

[46]     The gravamen of the offence was selling the lambs contrary to the terms of his authority.  It was the act of selling the lambs that constituted the theft, not the retention of the proceeds.  Therefore, the claim of right must pertain to the former, not the latter.

[47]     To put it another way, there is a clear distinction to be drawn between a belief in the legality of the end sought to be achieved and a belief one is lawfully entitled to adopt a particular means of achieving that end.

[48]     At no stage in his testimony did Mr M   ever assert that although his actions were a breach of contract, he considered he was lawfully entitled to sell the lambs through another firm.  The closest he came to it was saying he had an interest in the stock.  It was clear however he did not mean he had a proprietary interest in the  lambs,  but  rather  a  right  to  some  money.    Essentially  the  thrust  of  Mr M  ’s evidence was that he anticipated a dispute and was simply taking a pre- emptive strike.  This case is thus on all fours with the appellant in Cooley who may have honestly believed she was entitled to a benefit but dishonestly made a false declaration.

[22]      We  agree  with  the  Crown’s  submission  that  the  essence  of  the defence is that the accused must believe that the act in issue was lawful. The appellant’s argument in this respect is that the relevant act was applying for the special needs grant or benefit. Her case is that she thought she was entitled to the payments sought because she was in need of financial assistance. However, for the purposes of claim of right, the relevant conduct is understating her income on the relevant forms. Any other approach is both artificial and inconsistent with the statutory definition. (Cooley at [22])

[49]     Like  the  appellant  in  Cooley,  Mr  M    used  a  dishonest  means  to achieve an end to which he believed he was lawfully entitled. The evidence established beyond reasonable doubt he knew the sale was contrary to the terms of his authority but that he deliberately went ahead anyway not because he thought the sale was legally justifiable but so as to secure a commercial advantage.

[50]     I do not, therefore, accept the Judge has erred in focusing on the act of selling the lambs and saying it did not really matter what sum of money was received.  The fact  that  from  the  outset  it  was  never  intended  the  lambs  should  return  to  Mr Hudson’s farm is also irrelevant.

[51]     Mr Calver acknowledged the limitations of Mr M  ’s testimony as to claim of right, and told me that in hindsight he would have conducted the case differently.  However, he also submitted that his ability to lead his client’s evidence and present the defence in an orderly and coherent manner had been significantly hampered by the Judge’s overly interventionist approach.  That relates to the second ground of the appeal, to which I now turn.

The Judge’s interventions

[52]     It is an over-riding principle that a defendant is entitled to a fair trial and that the adoption of a semi-prosecutorial role by a Judge is contrary to her or her proper function: see Rangihuna v Police HC Napier AP52/01, 1 March 2002, Gendall J following E H Cochrane Ltd v MOT [1987] 1 NZLR 146.

[53]     As I have already mentioned, in this case only three witnesses were called at the hearing.  Yet, the 98-page transcript records no fewer than 140 interventions by the Judge.

[54]     On anyone’s view of it, that is an unusually large number of interventions, even allowing for the fact this was of course a summary hearing and did not involve a jury.

[55]     However, as the authorities make clear, while a large number of interruptions puts an appellate Court on notice of the possibility of a denial of justice, ultimately it is not the number of interventions that is crucial, but the nature and quality of them; see R v H (2002) 19 CRNZ 518 at [31]; Akast v Police HC Auckland CRI-2004-404-

000183, 26 August 2004, Gendall J at [18]; Rangihuna at [10]. I have therefore reviewed not only the number, but also the type and quality of the various interventions as well as considering their collective effect.

[56]     The  first  point  I would  make  is  that  most  of  the  Judge’s  questions  and comments consist of the Judge seeking to confirm or clarify what the witnesses were saying.  It is apparent from the transcript that the Judge was taking notes and was understandably anxious to be sure he understood exactly what was being said and

was recording it accurately.  Some of the detail, especially regarding lamb numbers and weights, became quite confusing, and the Judge’s interruptions were helpfully designed to resolve this.   Similarly, while the Judge undoubtedly asked leading questions, a careful reading of the transcripts establishes the Judge was on most occasions simply restating what the witness had said, presumably because he was writing it down.

[57]     On the other hand, not all of the Judge’s leading questions fall into that category, and at one point the Judge appears temporarily to have taken over the questioning of Mr Hudson from the prosecuting sergeant. He thereby stepped into the arena which he should not have done.

[58]     It is also clear there were a significant number of interruptions during Mr Calver’s cross-examination of Mr Hudson and that during the course of the hearing the Judge made two references to a possible appeal.   Another legitimate concern raised  by  Mr  Calver  was  the  Judge’s  querying  of  the  admissibility of  the  text communications, despite these being clearly admissible. I accept too that aspects of the Judge’s questioning of Mr M   could properly be described as being in the nature of cross-examination.

[59]   In my view, the Judge’s interventions were excessive and on occasion imprudent, a state of affairs which has troubled me, not least of all because there were credibility issues to be resolved especially relating to the threatening charge.

[60]     However, after very careful consideration I have come to the conclusion that despite the concerns there has not been a miscarriage of justice as would warrant my quashing the convictions.  I am satisfied the Judge’s findings as to guilt were sound, and that any irregular judicial questioning did not create a real danger the trial was unfair.  I am also satisfied it is not likely that any reasonable and informed observer might consider the hearing to be unfair or the Judge biased, as opposed to robust and at times impatient.

[61]     I have come to that conclusion for the following reasons:

i)Where there were leading questions which went beyond clarification, confirmation or re-statement, the information those questions elicited was ultimately non-contentious.

ii)A significant number of the exchanges between counsel and the Judge to which Mr Calver takes exception were the result of what the Judge (correctly) considered to be the defence’s flawed analysis of the police case.   A Judge is entitled to interrupt cross-examination to eliminate irrelevancies.

iii)While the Judge certainly queried the admissibility of certain documentary evidence, he did not exclude it.

iv)Further, there were interventions which were helpful to the defence.  On one occasion, for example, the Judge intervened to say he would allow Mr Calver to adduce evidence which Mr Calver had assumed was inadmissible.

v)I do not accept that the Judge’s querying of the admissibility of the text communications shows bias or pre-determination or the  appearance  of  same.    A  fair  minded  and  reasonable observer  would  have  appreciated  from  what  was  said  in relation to this issue and other admissibility issues that the Judge held particularly strict views about hearsay and the interpretation of the Evidence Act.

vi)The Judge’s reference to appeals were made in the context of discussions about legal issues and relevance.

vii)The police case against the appellant on the theft charge was strong.  It included incontrovertible evidence that the appellant knew of the arrangements and had deliberately breached them; he wanted the lambs gone; he sold the lambs in early March, yet  did  not  tell  anyone;  he  did  not  action  his  professed

intentions of issuing an invoice and paying the balance, but spent  all  the  money and sent  a  text  proposing  payment  in instalments; he was, by his own admission, less than forthcoming during the phone call; he was unable to explain why he did not give Mr Hudson the details during the phone call; he admitted there had been no prior history of problems with payment of wages.

viii)There was little or no credible evidence that the appellant honestly believed he was legally entitled to sell the 214 lambs otherwise  than  in  accordance  with  the  agreement.    I  am satisfied   the   Judge’s   interventions   did   not   inhibit   Mr M   from adducing evidence on that point, not least of all because that was not the basis of his case.

ix)      The   incontrovertible   evidence   regarding   Mr   M  ’s conduct did not reflect well on him. The Judge had the benefit of seeing and hearing the witnesses and his findings regarding the making of the threat are reasoned and reasonable.

[62]     In my view, neither of the grounds of appeal are sustainable. [63]     The appeal against conviction is accordingly dismissed.

[64]     I direct the registry to now arrange a date for the hearing of the appeal against sentence.  In this regard, I would invite counsel to consider the possibility of video conferencing.

Solicitors:

G W Calver, Hastings

Carlile Dowling, Napier