R v Stacey Gary Quayle

[2003] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

CA39/03

THE QUEEN

v

STACEY GARY QUAYLE

Hearing:26 June 2003

Coram:Anderson J
Panckhurst J
Paterson J

Appearances:  J Aickin for the Appellant

A Markham for the Crown

Judgment:3 July 2003 

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1]      Mr Quayle was found guilty by a jury in the Christchurch District Court of breaking and entering a building with intent to commit a crime.  He was sentenced to twelve months imprisonment and given leave to apply for home detention.  Mr Quayle appealed against both the conviction and sentence.

Background

[2]      Mr Quayle was employed on a trial basis as an assistant chef at a Christchurch bar.  His contract was terminated for performance related reasons, and he was advised he would receive his final pay once he returned his uniform and key.  He failed to do so.  A few weeks after his dismissal, the bar was burgled at about 2.20 am.  The evidence suggested that it was an “inside” job.  Mr Quayle was charged with the burglary, and the Crown’s case was that he used his key and his inside knowledge of the bar’s security systems to enter the premises and steal approximately $6700 and two bottles of Jim Beam bourbon.  Most of the stolen money was in $2 coins. 

[3]      On the morning of the burglary a search warrant was executed on Mr Quayle’s residential premises.  Two unopened bottles of  Jim Beam bourbon were found hidden in a cavity behind a drawer in a desk.  The serial and batch numbers were similar to those on the bottles that remained in the carton at the bar.  In the kitchen pantry, the police found two tins containing approximately $3000 in $2 coins. 

[4]      Mr Quayle’s then defacto partner gave evidence that on the night of the burglary she arrived home at about 10 pm and found the appellant in bed asleep.  He woke up and began playing on the computer.  She went to bed about 1 am and left him playing on the computer.  She thought he came to bed at some stage but could not say when, and when she woke up he was already up.  She denied knowledge of the bottles of Jim Beam or the coins in the tins.

[5]      Mr Quayle’s explanation was that the bottles of bourbon were being saved for a surprise birthday party for his partner, and that the coins in the tins had been there for one to three months and came from “pokies winnings” and “general loose change.”

[6]      The Crown’s case relied on circumstantial evidence.  The Judge’s directions in his summing up on inferences were in the following terms:

[12]     “As a jury you are entitled to draw logical inferences based on facts which you are satisfied have been properly proved in evidence.  If you find certain facts proved, you may decide that even though there is no direct proof of it, you can nevertheless safely infer another fact from those which you have found proved.  However, any inference which you may draw must be a logical conclusion based on properly proved facts. In other words, you are not entitled to resort to speculation or guesswork. The process of drawing inferences can be an important one where the Crown relies upon circumstantial evidence, as it does in this case. I will say something more about circumstantial evidence in a moment but first I want to explain to you, as I said I would, the essential elements of the offence of burglary and remember that each of the essential elements, and there are three in relation to burglary, must be proved beyond reasonable doubt …”

[18]     There is no direct evidence to prove that it was the accused who entered the Bar.  There is no witness who has been able to say “I saw the accused outside the door about 2 am and I saw him open the door and go inside.” There is no witness who has been able to say “I saw the door open and a man come out and that man was the accused.”  In the absence of that sort of evidence, the Crown relies on what is called “circumstantial evidence.”

[19]      There is nothing inherently second-rate or dubious about circumstantial evidence, ladies and gentlemen.  Circumstantial evidence simply involves the process, which I have already referred to, that is, the process of drawing inferences or logical conclusions from evidence which you are satisfied is reliable.  When a series of reliably established facts connect with each other in a way which carries certainty in the minds of a jury, that can result in proof beyond reasonable doubt.  Taken individually, each fact may not prove much at all but if, when you put them all together, you find a series of otherwise inexplicable coincidences that as a matter of common-sense and logic point to only one conclusion which you can arrive at namely, that it is the accused who is guilty of the alleged offence, then that will be sufficient.  However, if the cumulative effect of the individual facts does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt.

[20]     It is the cumulative effect of the circumstances and the established facts which is important and the analogy which is almost always drawn (and Mr McRae I think referred to this in his address) is the analogy of a rope. A rope is made up of course of many strands of fibre. Separately the strands may not support much weight at all but sufficient of them woven together will do so, and so it is with circumstantial evidence.  It is for you to say whether you are satisfied that there is such a combination of facts or events established in this case that you are satisfied beyond reasonable doubt of the accused’s guilt.

[7]      The Judge again referred to circumstantial evidence when summarising the Crown’s case.  The relevant provisions were:

[27]     As Mr McRae emphasised in his closing address, the Crown relies in this case upon circumstantial evidence. Mr McRae submitted to you that the circumstantial evidence is strong and that it points overwhelmingly to the accused as the person who broke into Robbie’s Bar and stole the money and the two bottles of bourbon.  The Crown suggests that various aspects of the evidence demonstrate that the accused had a motive to commit the burglary and you will remember what Mr McRae said about motive and, furthermore, the Crown relies upon the fact that he had a key to the premises so as to be able to gain entry. The Crown case is that the evidence also discloses that the accused had the necessary inside knowledge in relation to the premises – the alarm system, knowledge of the location of the video security cameras, the whereabouts of the keys, the operation of the till, the access code for the office door, etc. The Crown submits that the evidence will satisfy you that the sum of more than $3,000 which the accused was found to have in his flat in mainly $1 and $2 coins was a substantial part, approximately half, of the money stolen from the safe in the Bar and, furthermore, that the two bottles of bourbon concealed under the bottom drawer of his computer desk were those two bottles stolen from the box in the office at the Bar.

[28]     The Crown submits to you that the accused’s explanation for having the coins and the bourbon at his flat was really quite implausible.  Mr McRae submitted to you that the accused’s evidence that this amount in coins had been saved as “shrapnel”, to use the accused’s word , simply tossed into the tins and the Stein glasses is really ridiculous particularly as the accused’s bank account was either very low at the time or in fact in overdraft. The Crown’s case is that when you balance the state of that bank account against the fact that here was more than $3,000 in coins in the flat, you will really have little difficulty in deciding that the accused’s explanation for possession of that money is implausible. 

[8]      In his summing up, the Judge summarised the three elements which the Crown was required to prove beyond reasonable doubt as being a breaking into of the building;  an entry into the building;  and that at the time of the entry the offender had an intention to commit a crime once inside.  On more than one occasion, the Judge noted that the issue was whether the Crown had proved beyond reasonable doubt that the person who entered the bar and who stole the money and the bourbon was the accused.  On one occasion, he noted that the essential issue was “whether the Crown has proved beyond reasonable doubt that the offender in this case was the accused rather than some other person.”  Suggestions from defence counsel that some other staff member or perhaps ex-staff member carried out the burglary were referred to in the summing up when summarising both the Crown and defence cases.  A reasonable comprehensive summary of the defence case was given occupying in all eight paragraphs in a 42 paragraph summing up. 

Points on appeal

[9]      The notice of appeal contained the following grounds of appeal:

The verdict was unreasonable and cannot be supported having regard to the evidence. 

(a)    In his summing up to the jury, the trial Judge did not adequately describe the law as it related to inferences to the jury or the law with respect to circumstantial evidence;

(b)    Did not adequately summarise the points made by counsel in the closing address to the jury.

[10]     The nub of the submissions of Mr Quayle’s counsel was that the Judge in his summing up did not adequately refer to other hypotheses. 

The appellant’s submissions

[11]     Although counsel did not advance some of the points made in her written submissions, it is necessary to briefly refer to them.  First, it was submitted that the direction in paragraph 19 of the summing up failed to emphasise that inferences may only be drawn logically from proven facts and by reference to established facts.  Secondly, it was submitted that there should in this case have been a Hodge direction.  A Hodge direction (based on R v Hodge (1838) 2 Lew CC 227), is a direction that the jury must be satisfied not only that the circumstances are consistent with the accused having committed the crime, but also that the facts are such as to be inconsistent with any other rational conclusion than guilt. 

[12]     Thirdly, it was submitted that the last sentence in paragraph 20 of the summing up should have included a statement of the need to exclude any reasonable hypothesis based on the evidence that was consistent with innocence.  This point was supported by a further submission that the summing up was not balanced because it made no reference to other possible hypotheses except the references made when summarising the defence case. 

Decision on conviction appeal

[13]     In our view, there is no substance in any of the criticisms of the Judge’s summing up on circumstantial evidence.  He gave conventional and complete directions and we find no fault with them.  This Court determined in R v Hart [1986] 2 NZLR 408 that a Hodge direction, while proper and in some cases desirable, is not required as a matter of law. When the Crown, as here, was relying on circumstantial evidence, the Judge has a duty to make clear to the jury the use to which it could put the circumstantial evidence and the necessity to be satisfied beyond reasonable doubt of the guilt of the accused before it can convict him. In our view, the Judge did just that. His directions included statements that the jury was “not entitled to resort to speculation or guesswork”, and that “if the cumulative effect of the individual facts does not reach the standard and still leave gaps, then the evidence does not amount to proof beyond reasonable doubt.” The summing up was balanced in that there was also a statement that it was for the jury to decide whether it was “satisfied that there is such a combination of facts or events established in the case that you are satisfied beyond reasonable doubt of the accused’s guilt.”

[14]     In summarising the Crown case, the Judge referred to the Crown submission that it was necessary to approach the circumstantial evidence in a common-sense way when considering whether it was the accused who committed the burglary.  When summarising the defence case, His Honour referred to counsels’ submissions that there was “a reasonable possibility that someone remained in the premises after they were secured for the night and then stole the money and the bourbon before leaving.”  The Judge noted that was a possibility which the jury would have to weigh and also noted that counsel “submits to you that it is a reasonable possibility that the Crown has failed to exclude it as a reasonable possibility.” 

[15]     This was a case where the circumstantial evidence against Mr Quayle was strong.  The Judge fairly put to the jury the defence case, including the possibility that someone remained in the premises after they were secured for the night and then stole the money and the bourbon.  In our view, the Judge appropriately directed on both circumstantial evidence and the defence case.  In considering whether Mr Quayle was guilty, it was necessary to consider the alternative proposition advanced by the defence, namely that the crime may have been committed by someone other than Mr Quayle.  We are satisfied that not only were the directions appropriate but also that there was no unfairness in them to Mr Quayle.  In these circumstances the appeal against conviction is dismissed.

Sentence appeal

[16]     Mr Quayle received home detention and has now been released from that detention.  The appeal against this aspect of the sentence was not seriously pursued. The only sentencing matter which needs to be considered is the reparation order.

[17]     The Judge ordered that Mr Quayle pay reparation of $3600, such sum being payable to the insurer of the owner of the bar.  At the same time, he remitted outstanding fines of $575.  The reparation of $3600 was the amount of the stolen money less the money recovered by the police at Mr Quayle’s premises.

[18]     We assume that the rationale for the reparation order was that Mr Quayle would have access to the balance of the stolen money to make reparation.  However, Mr Quayle may not have had the balance of the money as the summing up notes that Crown counsel suggested in opening that there may have been more than one person involved in the burglary.

[19]     The Judge did not obtain a reparation report.  The only evidence which appears to have been before him is the bank statement of Mr Quayle which was produced in evidence and which suggests there was either very little in the bank account, or that Mr Quayle was in overdraft at the time.  The pre-sentence report noted that for the period of his Court trial, Mr Quayle had been on a sickness benefit.  It did not contain any details of his assets. 

[20]     We accept Ms Markham’s submission on behalf of the Crown that a reparation report under s 33 of the Sentencing Act 2002 is not a pre-requisite to making a reparation order.  Section 33(1) gives the Court a discretionary power to seek a reparation report on various matters, including:

(d) The financial capacity of the offender;

(e) The maximum amount that the offender is likely to be able to pay under a sentence of reparation;

(f) The frequency and magnitude of any payment that should be required under a sentence of reparation, if provision for payment by instalments is thought desirable.

[21]     Section 33(2) of the Sentencing Act states:

2)    The court may decline to seek a report under subsection (1) and impose a sentence of reparation without further inquiry if—

(a)  the court is satisfied as to the amount of reparation that the offender should pay; or

(b)  the type of information referred to in a reparation report is available through other means (including, without limitation, a declaration made following a direction under section 41); or

(c)in all the circumstances the court considers that a report is unnecessary.

[22]     Subsection 2(a) has no application in this case because the Court was obviously satisfied as to the amount of reparation that should be paid, namely, the unrecovered balance of the stolen money.   However, an obvious purpose of a reparation report is to assess the financial capacity of the offender to pay and whether or not payment, if ordered, should be in a lump sum or by instalments.  While not a mandatory requirement, it is unwise for a Judge, in our view, to order reparation without such a report where there is evidence which suggests that the offender may not have the means to make payment. 

[23]     Section 36 of the Sentencing Act provides that when a reparation order is made, the Court must determine the following:

(a)    the total amount of reparation to be paid by the offender:

(b)    whether the amount is to be paid in 1 lump sum or in instalments:

(c)   if the amount is to be paid in 1 lump sum, whether it is to be paid immediately or at some specified future date:

(d)    if the amount is to be paid in instalments, the frequency and amounts of the instalments.

In this case, the order does not comply with the provisions of that section.

[24]     Another relevant factor is that the Judge remitted fines.  The remission was no doubt on the basis of lack of capacity to pay.  There is an inconsistency between ordering a payment of $3600 and remitting fines of $575.  Presumably, the Judge reasoned that Mr Quayle did not have the capacity to pay fines, but could pay reparation from the stolen money.  In view of the Crown’s suggestion that others may have been involved, and only approximately one half of the moneys were found in Mr Quayle’s possession, it does not necessarily follow that he has the capacity to make the reparation payment.  The Court, in our view, should also be satisfied that there is an ability to make the reparation payment either in one lump sum or by instalments from income.

[25]     In the circumstances, we quash the reparation order and allow the sentence appeal to that extent.

Result

[26]     The appeal against conviction is dismissed and the sentence appeal is allowed to the extent of quashing the reparation order requiring Mr Quayle to pay $3600.

Solicitors:
The Crown Solicitor, Wellington