Peryer v The King

[2024] NZHC 1481

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-1

[2024] NZHC 1481

BETWEEN

M J PERYER

Applicant

AND

THE KING

Respondent

Hearing:	5 June 2024
Appearances:	E J Forster and S B W Yee for Appellant M Mitchell for Respondent
Judgment:	6 June 2024

JUDGMENT OF CHURCHMAN J

[1]    On 27 October 2023, Judge Earwaker convicted Michael Peryer of one charge of making a false statement1 and two charges of dishonestly using a document for pecuniary advantage2 after a judge alone trial.3

[2]    The essential issue for the Judge was whether Mr Peryer had falsely claimed that two vehicles, a Ford Ranger registration LBB190 and a Premium brand horse float registration number 299U2, had been stolen. Mr Peryer had made insurance claims in respect of both vehicles. Mr Peryer now appeals the convictions, alleging that the Judge was wrong to find that the Crown had proved the claim to be false beyond a reasonable doubt.

1      Crimes Act 1961, s 111; maximum penalty three years’ imprisonment.

2      Section 228(1)(b); maximum penalty seven years’ imprisonment.

3      R v Peryer [2023] NZDC 22075.

PERYER v R [2024] NZHC 1481

What happened?

Alleged offending

[3]    Mr Peryer is the director of a company that specialises in the transport of trailers, horse floats and caravans. He also runs another company which specialises in the transportation of pets.

[4]    On 16 May 2022, Mr Peryer made a statement to police that the two vehicles stolen from his property at Hastings overnight between 12 and 13 May 2022 were:

(a)a Ford Ranger with registration LBB190 (the Ford Ranger); and

(b)a horse float with registration 299U2 (float 299U2), which Mr Peryer had purchased from Premium Floats in Christchurch on 12 April 2022 for $36,000.

[5]    Mr Peryer claimed float 299U2 was attached to the Ford Ranger and both were stolen together.

[6]    The Crown alleged that this statement was false because neither item was stolen. The Crown also alleges that Mr Peryer went on to wrongly lodge an insurance claim for both the Ford Ranger and float 299U2 on 17 May 2022, again under the pretence that they had been stolen. One charge of dishonestly using a document arises from lodging the claim in relation to the Ford Ranger and another arises from lodging the claim in relation to float 299U2.

[7]    The Crown alleges that float 299U2 was not stolen, and that Mr Peryer instead re-registered float 299U2 under the registration 314G3 on 21 April 2022, removing any Premium Horse Floats branding that would identify it as such and replacing it with the branding of his pet transportation company.

[8]The Crown alleges that Mr Peryer’s Ford Ranger was not stolen because:

(a)the make of vehicle has a number of security features which make it extremely difficult to steal without a key; and

(b)Mr Peryer claimed he still possessed the single key he had been given for the vehicle when he purchased it, but Police investigations found that he had been provided two keys when he obtained possession of the vehicle.

[9]    The Crown alleges that the vehicle was either taken by a third person to whom Mr Peryer gave the second key or it was disposed of; either way it was not stolen.

District Court decision

[10]   In the District Court, Mr Peryer denied re-registering the horse float, claiming that he purchased a horse float with registration 315G3 (float 315G3) from the side of the road for $20,000 cash. He asserted that was not an unusual amount of cash for him to have due to his gambling habit. He claimed to not recall who he had purchased it from, nor where this occurred. He also maintained that he was only given one key to the Ford Ranger upon purchase.

[11]   In the decision under appeal, the Judge correctly canvassed the relevant law, noting the burden on the Crown to prove its case beyond a reasonable doubt and the need for him to assess all of the evidence dispassionately.4

[12]   The Judge correctly identified the ingredients of the charges before him. First, he discussed the ingredients of the charge of making a false statement, where the Crown must prove that:5

(a)the defendant made a statement before a police officer; and

(b)that statement would amount to perjury if made on oath in a judicial proceeding; in that it contained an assertion as to a matter of fact which was known to be false and intended to mislead.

[13]He noted that Mr Peryer only disputed the latter ingredient.

4      At [10]–[16].

5      At [17]–[20].

[14]   The Judge then discussed the ingredients of the charge of dishonestly using a document, stating that the Crown had to prove that the defendant:6

(a)between 12 May 2022 and 19 May 2022 used a document (namely an insurance claim);

(b)used the document with an intention to obtain a pecuniary advantage for himself;

(c)used the document dishonestly and so without an honest belief or right he was entitled to obtain money from the insurance claim; and

(d)he used the document without claim of right, meaning without a belief that the act was lawful and he had a right to use it. The Judge observed that such a belief does not need to be reasonable but must be genuine and can be based on ignorance or a mistake of fact.

[15]He noted that only the latter two ingredients were in dispute.

[16]   The Judge also correctly observed that under s 112 of the Crimes Act 1961, he could not convict Mr Peryer of this charge on the evidence of one witness alone, unless that evidence was corroborated in some material particular by evidence implicating Mr Peryer.7 He observed that s 112 has been interpreted as encompassing reliance on circumstantial evidence, although such evidence is likely to be adduced from two or more independent sources and therefore is likely satisfy the requirements of the section. Therefore, as was stated by the Court of Appeal, the only question likely to be asked in relation to circumstantial evidence is whether it adequately sustains the inference that the statement was false.8

[17]   After canvassing the evidence, including the evidence called by the defence, the Judge ultimately concluded that Mr Peryer had lied in stating that the vehicles were stolen.

6      At [23]–[26].

7 At [21].

8      At [22], citing Marks v R [2014] NZCA 609, (2014) 27 CRNZ 519 at [30] and [38].

[18]   The Judge found that float 299U2 and float 314G3 were one and the same and that Mr Peryer had falsely tried to pass off float 314G3 as a different float to sustain the false narrative that float 299U2 had been stolen. The Judge’s reasons were that:9

(a)First, Mr Peryer’s explanation of how he came to own float 314G3 was implausible and lacked credibility. Mr Peryer had no record of the transaction but claimed it occurred sometime between buying float 299U2 and the claimed theft, when he had happened to have $20,000 cash with him before driving past a horse float in a paddock, striking up a conversation with the owner and purchasing it for cash. The Judge found the combination of unlikely circumstances to be implausible, particularly where:

(i)Mr Peryer could not remember where this sale happened and did not know who the vendor was;

(ii)the unknown vendor did not use registration plates, requiring the defendant to re-register the vehicle;

(iii)Mr Peryer claimed he purchased float 314G3 about one week after he purchased float 299U2, which the Judge found to be in itself somewhat implausible given the substantial cost of both vehicles ($36,000 and $20,000) and the similarities between the two vehicles.

(b)Second, the Judge accepted much of the evidence of Mr Mitchell, the owner of the Premium Horse Floats brand, in finding that float 314G3 contained many features unique to Premium Horse Floats that in combination satisfied him that float 314G3 was in fact float 299U2, including a depiction of a horseshoe identical to Premium Horse Float signage.10 The Judge addressed an invoice produced by Mr Peryer that

9      At [113]–

10     At [118]–[121], and see the evidence of Mr Mitchell outlined at [46]–[59].

suggested float 314G3 had been repaired on an earlier occasion, finding this evidence did not go towards a finding either way.11

[19]   The Judge addressed the Ford Ranger next. In finding that the Crown had proven it was not stolen, the Judge:12

(a)did not accept Mr Peryer’s evidence that he only received one key for the vehicle when he purchased it;

(b)accepted the Crown evidence that the security features of the vehicle make it “very difficult” to steal without a key;

(c)had already made a finding that Mr Peryer had lied about float 299U2 being stolen and considered that finding to be “extremely relevant and probative” to his further finding that Mr Peryer had also lied about the Ford Ranger being stolen, especially when Mr Peryer had claimed the Ford Ranger was attached to float 299U2 and the two vehicles were stolen together.

[20]   The Judge’s findings that Mr Peryer had lied about float  299U2 and  the  Ford Ranger being stolen were fundamental in his ultimate assessment that the three charges against Mr Peryer were proven beyond a reasonable doubt.13

Further evidence

[21]   Mr Peryer applied to adduce further evidence. The evidence is an affidavit dated 29 May 2024. Mr Bryan is a retired automotive mechanic. He deposes to having worked on “many trailers’ … “including a small number of horse floats.” He also says: “I do not have any specific horse float expertise.”

[22]   The relevant part of his evidence is that using double nuts on the D bolts securing the leaf springs of a trailer is not unique. It is one of three methods he was

11 At [121].

12     At [122]–[124].

13     At [126]–[132].

aware of to address the possibility of single nuts becoming loose and creating a safety hazard. The other two methods he was aware of were putting a tack on the thread of the D bolts or using a flanged nut. Mr Bryan also expressed the view that it was neither unique nor distinctive for D bolts on trailers to be double nutted.

[23]   Ms Mitchell did not oppose the admission of Mr Bryan’s affidavit and I allowed it to be filed, reserving the question of its relevance.

Position of the parties

[24]The appellant submits that all three convictions should be overturned:

(a)The  appellant  submits  that  the  prosecution  breached   the  Criminal Disclosure Act 2008 by failing to disclose each of the features Mr Mitchell described in oral evidence that were not described in the written brief of evidence. It is said that these features supported the Judge’s finding that several features of Premium Horse Floats are unique and therefore that float 314G3 was in fact float 299U2. The appellant submits that this non-disclosure amounts to a breach of the New Zealand Bill of Rights Act 1990 (NZBORA) and materially disadvantaged the defence case such that a miscarriage of justice occurred.

(b)Relying on the affidavit of Mr Bryan discussed above, the appellant submits that “double nutting”, one of the features the Judge relied on in finding that float 314G3 was in fact float 299U2, is not unique to Premium Horse Floats. He submits that the Judge therefore erred in finding that float 314G3 was in fact float 299U2 and the conviction is therefore a miscarriage of justice.

[25]The Crown submits that:

(a)no disclosure issue arises from Mr Mitchell going beyond his brief of evidence in his oral evidence at trial in circumstances where his brief

made it clear that he would rely on the physical features of float 314G3 in identifying it as a Premium Horse Float; and

(b)while it accepts that “double nutting” was likely not a feature unique to Premium Horse Floats, the “double nutting” was not determinative of the Judge’s decision.

Approach on appeal

[26]   This appeal proceeds under s 232 of the Criminal Procedure Act 2011, subs (2) of which provides that this Court must allow an appeal if it is satisfied that:

(b)in the case of a judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

[27]   The approach to be taken under s 232(2)(b) was clarified by the Supreme Court in the case Sena v Police.14 The Court held such appeals proceed by way of rehearing.15 The appeal court must form its own view of the facts and, if it comes to  a different view than the trial judge on the evidence, it must allow the appeal.16 However, the appeal is not considering the issues de novo; it is for the appellant to show that an error has been made.

[28]   In assessing whether there has been an error, an appeal court must account for any advantage a trial judge may have had. In particular, where the appellant challenges credibility findings based on contested oral evidence an appeal court must exercise “customary” caution, reflecting the advantage the trial judge has in evaluating the strengths and weaknesses of a case as the evidence emerges during trial and in making an assessment of witnesses, and the disadvantage for an appeal court dealing with a case based on the written record of what happened at trial and counsel’s submissions.17

14     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.

15     At [32], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

16 At [38].

17     At [38]–[42].

Did the prosecution adequately disclose Mr Mitchell’s evidence?

Legal requirements for criminal disclosure

[29]   Criminal disclosure by the prosecution is intimately linked to fair trial rights: a person accused of a crime must know the nature and extent of the allegations against them in order to mount an adequate defence. Disclosure therefore engages the rights set out in ss 24(d) and 25(a) of the NZBORA. The fair trial right contained in s 25(a) is absolute and cannot be subject to reasonable limitations under s 5 of the NZBORA.18

[30]   Relatedly, criminal disclosure ensures that defendants are not disadvantaged by the imbalance of resources available to them as against the resources of the state.19 That is to say, criminal disclosure also ensures an “equality of arms”.20

[31]   Mr Peryer submits that the prosecution breached its duties under the Criminal Disclosure Act, the purpose of which is described in s 3 as:

… to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings.

[32]   Under the Act, the responsibility for disclosure lies with the “prosecutor”, a term defined in s 6 as “the person who is for the time being in charge of the file or files relating to a criminal proceeding”. The Act envisages that prosecuting authorities provide disclosure in three stages: initial disclosure under s 12; full disclosure under s 13; and particularised disclosure requested by the defendant under s 14.

[33]   Under s 13, the prosecution must, when engaging in full disclosure, disclose to the defendant “any relevant information”. The term “relevant” is defined in s 8 as information that “tends to support or rebut, or has a material bearing on, the case against the defendant”.

18     King v Attorney-General [2022] NZHC 695.

19     Te Aka Matua o te Ture | Law Commission Criminal Prosecution (NZLC R66, 2000) at [193] [Criminal Prosecution Report].

20     Her Majesty's Advocate v Murtagh (The High Court of Justiciary Scotland) [2009] UKPC 36, [2011] 1 AC 731 at [10] per Lord Hope.

[34]   The failure of a prosecutor to comply with the  requirements  of  the  Criminal Disclosure Act can give rise to a miscarriage of justice.21 However, not every failure to disclose will reach this threshold: a miscarriage of justice requires “more than an inconsequential or immaterial mistake or irregularity”.22 As was said by the Supreme Court in R v Condon:23

It is important to remember that … the assessment of the fairness of the trial is to be made in relation to the trial overall. A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair, as Lord Bingham made clear in a passage in Randall, which was referred to with approval in Howse. He said that it is at the point when the departure from good practice is ‘so gross, or so persistent, or so prejudicial, or so irremediable’ that an appellate Court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.

[35]   It follows that for a failure to disclose to amount to a miscarriage of justice there must be a risk that it materially affected the result of the trial.

Analysis

[36]   Mr Peryer points to the following features of Premium Horse Floats he says were advanced at the hearing and were “relevant” in terms of s 13, but were not in the written brief of evidence provided to the defence:

19.   The annexed steel tap with the curved top; the hooks on the drawbars for the chains; the honeycomb fibreglass floor; the double nuts; the black silicone by the mudguard which Mr Mitchell did himself; and the split pin on the door latches

[37]   Mr Peryer submits further that the prosecution owed higher duties of disclosure because Mr Mitchell was an expert witness, giving evidence that was technical and “therefore akin to expert evidence”.

[38]   I do not accept these submissions. The written brief of evidence provided to Mr Peryer clearly identified that Mr Mitchell would rely on the physical features of float 314G3 in identifying it as a Premium Horse Float.  Those features included the

21     R v Takiari CA273/98, 22 July 1999 at [19]; and see R v Bublitz [2017] NZHC 1059, and R v Lyttle

[2018] NZHC 2689 to a reasonable apprehension of a miscarriage of justice.

22     Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

23     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78] (footnotes omitted).

double locking nuts on the U bolts. As such, the defendant was aware that the prosecution would be pointing to physical features of float 314G3 that were similar to Premium Horse Floats in an attempt to show it was the same as float 299U2. In circumstances where Mr Peryer was not taken by surprise, it is difficult to say that the defence case suffered prejudice and that there was any miscarriage of justice—even had I accepted that the prosecution breached their duties to disclose.

[39]   However, I do not accept that the prosecution breached their duties to disclose. As the Crown has submitted, s 15 of the Criminal Disclosure Act expressly states that a prosecutor has no obligation to disclose information they do not possess. The prosecutor here did not possess the information Mr Peryer submits should have been disclosed to him; it was not recorded anywhere until Mr Mitchell gave his oral evidence. Mr Mitchell’s expansion on the evidence contained within his brief whilst giving oral evidence was part of the ordinary and natural process of trial. I accept the Crown’s submission that to confine witnesses solely to the content of their written statements would undermine the very purpose of oral evidence.

[40]   Mr Mitchell was not called as an expert witness. He was called as a witness in his capacity as the importer and assembler of float 299U2, not as an expert providing comment on the appearance of horse floats in general. Even if he could be classified as an expert witness, that would not assist Mr Peryer: s 23 of the Criminal Disclosure Act only requires the prosecution to disclose the expert’s brief of evidence 10 days before trial, and there is no suggestion that that duty was not complied with here.

[41]   Also relevant is the fact that defence counsel did not raise an objection to the evidence at the time under s 34 of the Act.

Did the Judge err in relying on “double nutting” being a unique feature in finding that float 314G3 was in fact float 299U2?

[42]   The Judge, at [118] of his decision referred to the evidence of Mr Mitchell about the features of 299U2 which, in combination, satisfied the judge that it was a Premium imported horse float.

[43]The relevant passages in Mr Mitchell’s prepared brief of evidence state:

From viewing the photographs that were supplied to me, I was also able to confirm that the trailer had been manufactured this year, 2022.

I was able to confirm that fact based on the double locking nuts on the U-bolts, holding the axles to the springs.

We only started adding the second unlock nut to these at the beginning of this year.

[44]   Mr Mitchell’s evidence was therefore not that having double nuts on the springs of the horse float made it unique, but that this was something that he himself had put on the horse float and assisted him in identifying when it had been manufactured.

[45]   To that extent, it can be said that by referring to the double nut as being a unique feature, the Judge has misstated its significance. However, the presence of the double studs is consistent with the horse float being 299U2 because of Mr Mitchell’s evidence that he put them there. It therefore has a positive evidential value. It was also one of the large number of distinctive features, which, in combination, provided compelling supporting evidence that the horse float was indeed 299U2.   There is nothing in    Mr Bryan’s affidavit that undermines that conclusion.

[46]   It is also important to note that the similarity of the features of float 314G3 to those present in float 299U2 was but one of two strands of the Judge’s reasoning. The first reason he gave was that the narrative presented by Mr Peryer was implausible and lacked credibility, a finding which is not disputed on appeal.

Conclusion

[47]   There was no material error on the part of the Judge and no miscarriage of justice. The appeal is dismissed.

Churchman J

Solicitors:
Crown solicitor, Napier for Respondent