Palmer v Police

[2016] NZHC 2633

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000083 [2016] NZHC 2633

BETWEEN

ROGER GORDON PALMER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 November 2016
Appearances:	Appellant Appears In Person P A Norman and C E Martyn for Respondent
Judgment:	3 November 2016

JUDGMENT OF GENDALL J

Introduction

[1]      On 21 July 2016 the appellant, Mr Palmer, was convicted in the District Court of theft under s 223(b) Crimes Act 1961, Section Act 1961 in relation to his retention of a “crusher bucket/ pulveriser” attachment to construction equipment. The context is that the complainant, a Mr Pearce, had earlier been sold (and had fully paid  for), the  item  by the appellant.    Later,  Mr Pearce had  agreed  to  lend the appellant the item.   From that point onwards, and despite repeated requests and demands for its return, the appellant refused to return the item. Over the course of time the appellant made various representations that he would return the item, but ultimately refused to do so, on the basis that he and the victim “had things to sort out”. That formed the background to the charge, which Judge Kellar in the District Court found to be proved.

[2]      The appellant now appeals against his conviction.

[3]      The present appeal, in my view, lacks merit.  For the reasons which follow, it is to be dismissed.

PALMER v NEW ZEALAND POLICE [2016] NZHC 2633 [3 November 2016]

Procedural matters

[4]      The appellant initially in the District Court applied for a rehearing, alleging a number of matters broadly falling within the bounds of “procedural unfairness”.  The appellant’s current appeal was adjourned so that process could be carried out.  It is understood that the rehearing application was refused, and the process has now run its course.

[5]      It therefore appears that the appeal can now legitimately be heard.

[6]      For the avoidance of doubt, I record here that the appeal is not out of time. The appeal was filed on 2 August 2016.   The principal judgment of Judge Kellar, which discussed the evidence and found “the various elements of the charge of theft…proved  beyond  reasonable  doubt”,1     was  delivered  on  23  June  2016. However, the Judge gave the appellant time to return the crusher bucket/pulveriser, and indicated a conviction with discharge would be entered if that was done.  The appellant duly returned the item.  On 21 July 2016, Judge Kellar gave a brief oral judgment entering the conviction, and discharging the appellant.  It is that decision

which began the relevant 20 working day period under s 231(2) of the Criminal

Procedure Act 2011.

Principles on appeal

[7]      Appeals  against  conviction  are  brought  under  s  229  of  the  Criminal Procedure Act 2011, and must be determined in accordance with s 232 of that Act. The present case involved a Judge-alone trial at first instance. In these cases, an appeal against conviction must be allowed only if it is found that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has

occurred.2   Miscarriage of justice means any error, irregularity, or occurrence in or in

1      Police v Palmer [2016] NZDC 13409 at [23].

2      Criminal Procedure Act 2011, ss 232(2)(b) and 232(4)..

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.3

Analysis

[8]      As best I can tell from the appellant’s notice of appeal here, in essence it appears to challenge his conviction on two bases:  first, that the Judge failed to admit certain  relevant  evidence,  and  secondly,  that  the  Judge  mistakenly drew  factual inferences necessary to prove the elements of the charge.  Ultimately, the appellant contends that he has been the victim of “procedural unfairness” here and that he has “never stolen anything in his whole active life”.

Admission of evidence

[9]      The appellant contends that his trial was apparently set for a whole day, but was shortened to “approx 2.5 hours preventing full witness proof”.  This was also part  of  his  case  for  a  rehearing  in  the  District  Court,  including  allegations  of perceived procedural unfairness, but a rehearing was refused.

[10]     It is not clear from the record that the appellant was indeed prevented from calling any particular witnesses.   It does seem undisputed that, in addition to the appellant     himself     giving     evidence,     he     also     called     two     witnesses, Alan Charles MacDonald and Christopher Mark Ramage.

[11]     In any event, the test on appeal is that the Judge has erred in his assessment of the evidence such that there was a “real risk” that the outcome of the trial was affected, or that the trial was otherwise “unfair”.  Real risk in these cases means a reasonable possibility that a not-guilty verdict could have ensued.4   What constitutes an “unfair trial” is rather more nebulous, but it is generally accepted to involve:5

…[an] error, irregularity or occurrence…of sufficient seriousness to warrant the setting aside of the conviction without further inquiry into the potential effect of the error on the trial’s outcome.

3      Section 232(4).

4      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

5      Adams on Criminal Law at [CPA232.06].

[12]     It  is  difficult  to  see  how  the  present  case  could  meet  those  tests.    The appellant himself gave evidence.  The appellant also called the two witnesses I have named above, neither of whom, it seems, were in a particularly good position to provide objective or corroborative evidence in support of the appellant.  In the end result, the Judge preferred the evidence of the victim, Mr Pearce, and the police sergeant, and made credibility findings accordingly.  As discussed below, all of the credible evidence Judge Kellar accepted pointed to the appellant having no lawful basis on which to refuse to return the crusher bucket/pulveriser to Mr Pearce.  Even if there may have been additional witnesses who might have been called, or if the

witnesses the appellant called had given more substantial evidence,6  it is wholly

speculative as to whether that would have had any effect on the key factual findings made by Judge Kellar.   These turned largely on findings as to the appellant’s credibility.  Certainly,  it  does  not  go  so  far  as  to  satisfy  the  high  threshold  for allowing an appeal on these grounds.

Credibility and factual findings

[13]     The crux of the appellant’s case seems to be that there was an unwritten agreement between himself and Mr Pearce that the appellant would retain the crusher bucket/pulveriser (despite it having been duly paid for), as satisfaction of certain debts which he alleges were owed to him by Mr Pearce.  None of that was proven in evidence, however, and the Judge concluded that there was no such agreement.

[14]     Ultimately, the judge’s decision on the evidence came down to questions of credibility, and legitimate inferences he drew from the evidence.  On the one hand, Judge Kellar was faced with written evidence which established Mr Pearce’s ownership of the chattel in question.   On the other hand, he had to consider an uncorroborated assertion by the appellant of an oral agreement vesting ownership in the appellant in partial satisfaction of the unproven debts.  Further, standing against that was the presence of various personal grievances the appellant clearly had with Mr  Pearce,  which  were  borne  out  by  the  evidence.     The  Judge  referred  to

inconsistencies in the appellant’s testimony, particularly his assertion that the initial

6      It  is  far  from  clear  that  is  in  fact  the  case  -  a  set  of  the  appellant’s  submissions  dated

12 September 2016, as I see it, are wholly mystifying on this point.

sale of the crusher bucket/pulveriser to Mr Pearce was done verbally, even though a signed sale agreement existed.7   He also accepted that Mr Pearce had an ongoing use for the crusher bucket/pulveriser, which was inconsistent with a supposed sale back to the appellant.

[15]     In all those circumstances, it is difficult to see how Judge Kellar could have reached any inference other than the one he did, namely that the appellant unlawfully retained  the  crusher  bucket/pulveriser,  without  claim  of  right.    As  the  Judge indicated, there were other methods  by which  outstanding debts  (if in  fact  any existed) could have been settled.8

[16]     This Court needs also to be mindful of the fact that Judge Kellar had the advantage of hearing the witnesses when making his credibility findings.9 The Judge was best placed to make the factual findings he did. Absent some good reason to depart from those findings, this Court should be slow to disturb them.10

[17]     One last matter needs to be mentioned.   Before me at the hearing of this appeal, the appellant, Mr Palmer, drew attention to the notes of evidence taken before Judge Kellar at the District Court hearing on 17 June 2016 and, in particular, at page 43.   This appeared to involve an interchange between Judge Kellar and Mr Palmer where the following was said:

Judge Kellar:    Q.  [Addressed, it seems, to Mr Palmer]  Hang on, stop.  Ok, hang on.  I’m not sure what the outcome of this is going to be but at the moment it’s not looking particularly good for you.  You probably don’t want to have a conviction for theft and you can avoid that by giving this [the crusher bucket/pulveriser] back. Would you do that?

MrPalmer:      A.  No, not without my bill being paid Sir or some of my bill anyway, come to an agreement over the bill.   As I said, I walk away from a lot of money at the time…

[18]     Before  me,  Mr  Palmer  contended  that  this  interchange  he  had  with

Judge Kellar at the original District Court hearing meant that if he gave back to

7      Police v Palmer, above n 1, at [17].

8      Police v Palmer, above n 1, at [22].

9      Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30].

10     Rangatira Ltd v Commissioner of Inland Revenue [1977] 1 NZLR 129 (PC); Austin, Nicholas & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 (SC) at [5].

Mr Pearce  the  crusher  bucket/pulveriser  he  would  not  be  convicted  for  theft. Therefore, he contends the later entry of a conviction against him by Judge Kellar on

21 July 2016 was inappropriate and wrong.

[19]     I disagree, however.   What does seem clear from the interchange at  the District Court hearing on 17 June 2016 was that Judge Kellar was endeavouring to find a way through this whole personal dispute Mr Palmer said that he had with Mr Pearce and made a proposal for the return of the crusher bucket/pulveriser.  This proposal, however, Mr Palmer clearly rejected and indeed the hearing and evidence continued for a further one hour and eight minutes with additional evidence provided after that point.  As I see it, there can be no justified complaint now by Mr Palmer that he should not have been convicted on that charge he faced when the District Court hearing was pursued and nearly 40 additional pages of evidence was provided according  to  the  notes  of  evidence,  and  it  was  not  until  21  July  2016  that Judge Kellar in his oral judgment entered the conviction and discharged Mr Palmer.

Conclusion

[20]     I  conclude  that  for  all  the  reasons  outlined  above,  this  appeal  must  be dismissed. The evidence simply does not bear out the assertions made by the appellant, in the context of all the facts as found.  The factual findings made by the Judge were entirely open to him.  And in any event, it cannot be realistically argued here that the Judge has erred such that a miscarriage of justice has occurred.

[21]     The appeal is dismissed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Appellant