Scott v Police HC Napier CRI-2011-441-36
[2011] NZHC 1643
•28 October 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2011-441-36
BETWEEN CHERIE SCOTT Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 25 October 2011
Counsel: R B Phillip (on instructions from E J Forster) for Appellant
F E Cleary for Respondent
Judgment: 28 October 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 28 October 2011 at 4:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS/COUNSEL
E J Forster (Hastings) for Appellant
Elvidge & Partners (Napier) for Respondent
SCOTT V POLICE HC NAP CRI-2011-441-36 28 October 2011
Introduction
[1] On 19 July 2011, in the District Court at Napier, Judge JE MacDonald convicted the appellant on a charge of stealing $2,000. The appellant appeals the conviction.
[2] The ground of appeal is, in essence, that there was insufficient evidence to identify the appellant as the thief.
Factual background
[3] On 22 September 2010, someone entered the back area of the Sideline Bar at
Napier and stole $2,000. The crucial evidence was given by the duty manager, Mr Fleming:
The bar had a “pokie room”.
Thecash float for the pokie room was kept in a cupboard in an area behind the bar.
Access to the cupboard could be gained from the public area of the bar
through unlocked doors.
The “pokie float” consisted of $7,000 made up of $20 notes, $10 notes and
$2 coins. He checked the amount before he opened the bar that morning.
On the morning of 22 September 2010 customers in the bar were not drinking
alcohol but were playing the “pokies”. There were eight or nine of them including “the defendant”.
“The defendant” was a regular user of the “pokies” and on the previous Sunday she had won $1,000. On that occasion Mr Fleming had to fill in a sheet for “the defendant” to sign to say she had received the money. Prior to
that Mr Fleming had seen her at the bar probably twice a week, perhaps three
times a week, over a four week period.
Mr Fleming had no relationship with “the defendant” other than through
working at the bar. However:1
A. I know her by name, excuse me, ’cos she had signed the actual book to, when she received the money so I knew her name from that.
Q. Okay. Was there any distinctive about her?
A. She normally used to dress quite provocatively when she used to enter the, the pokie room, also she used to talk to the machine sometimes.
Onthe morning in question Mr Fleming changed some $50 notes for her so that she could have cash of denominations suitable for the pokie machines.
That occurred on several occasions.
Over the course of the morning Mr Fleming accessed the float for the pokies
by doing “a couple of refills on the machine and some hand payouts”.2 He noticed nothing unusual about the float.
Thecupboard where the pokie float was kept was locked. However, one of the male customers had a win which required to be paid out in cash. Accordingly, Mr Fleming collected the amount of cash from the pokie float cupboard and went to the pokie room to hand over the money and get a receipt. He did not lock the cupboard door while he was away. There was
no-one else in the bar.
Approximately half an hour later Mr Fleming again had to get cash from the
cupboard to pay a winner. He noticed then that the float “seemed a bit low”.3
He checked it and found there were $2,000 missing. His evidence follows:4
1 Notes of evidence taken on 19 July 2011, at 6.
2 Ibid, at 7.
3 Ibid, at 8.
4 Ibid, at 9.
A. The only time it could have gone missing from the time I actually went to pay a certain gentleman amount of money and within 15, 20 minutes afterwards.
Q. Can you recall what time that was? A. Approximately 1.30 to 2 o’clock.
Q. And around that time did you see the defendant? A. Yes I did, she was still in the pokie rooms.
Q. When she left did you see her leave? A. No I did not.
[4] At this point in the evidence Mr Fleming was shown security camera footage of the bar area. He had viewed it also prior to coming to Court. He gave evidence that the appellant was shown in the footage. His evidence was:5
Q. Where is the defendant seated in the pokie room?
A. She’s about the third machine in on your right-hand side, you can see her face as she turned. That’s me coming in basically to do the payment to machine 9.
Q. Yes.
A. (Inaudible 11:14:21) picture 15.
Q. Fifteen yes.
A. The bar, you can see the defendant going through, you can see the metal flaps from behind the bar actually opening, (inaudible
11:14:30) behind the bar.
Q. Yes. Now what – just pause you there. What makes you say that’s
the defendant?
A. Because I know her by sight and you can see from the picture on the top left-hand corner you see her look at me as I go to pay the
gentleman and she walks out.
Q. Okay.
A. You can see she walks back into the pokie room in the top left-hand picture, that’s me getting the signature from the gentleman that’s just won some money. That’s me leaving the poke room to get the money for the gentleman I’ve just got the signature from.
Q. Yes and where’s the defendant now?
A. The defendant is at the top (inaudible 11:15:47) pokie machine in on the right-hand side.
Q. Who is that leaving now?
A. That’s the defendant leaving the pokie room now.
Q. And where did she go do you know?
A. Don’t know, that’s me going back to pay the gentleman his money.
Q. Did you see the defendant after this?
A. No. On the picture in the right you can see her going out the main entrance.
[5] Later Mr Fleming was asked:6
Q. Now I just want to pause you again I, just to confirm what makes you positive that that is the defendant?
A. I’m positive from knowing her using the pokie rooms and basically
the fact that she’d won on the previous Sunday night and basically I’ve got her signature on the actual pokie bill to say that it is Cherie Scott.
[6] The rest of Mr Fleming’s examination-in-chief is by reference to photographs but the effect of his evidence was to place “the defendant” in the bar area, and behind the bar, at a time when he considered the money had been stolen. No other person was identified as having the opportunity to steal the money.
[7] The cross-examination focused on the poor quality of the security footage. The quality was not good enough to enable identification of the person shown acting suspiciously by her facial features. The photographs show a female and give an idea of her build, but that is about as far as it goes. The relevant passage of the cross- examination is as follows:7
Q. That’s because the quality of the footage is poor isn’t it?
A. Ah, from the photographs but from the actual footage you see on the large screen you probably get a better picture of it.
Q. Well where did you watch this footage? A. I just watched it now.
Q. Is this the first time you’ve watched it?
A. Yes.8
Q. And based on the footage that you watch for the first time now you’re telling us that you can identify the person who goes out of the bar, sorry, leaves the pokie rooms and goes out into the bar being the person that you had given $1000 to the previous Sunday?
6 Ibid, at 12.
7 Ibid, at 17.
8 Later in re-examination the witness clarifies that prior to trial he had been shown some but not all of the footage.
A. I can, yes.
Q. And this is despite the fact you accept that you don’t have any independent memory of what that person was wearing on this day the 22nd of September 2010?
A. Not exactly the colour of the clothes no.
Q. Well to be fair you said before you could no longer recall what that person was wearing?
A. Yes.
Q. I suspect, correct me if I’m wrong but what you’re now saying is that you can tell what clothes that person was wearing from the video footage and the photos?
A. No I never said that. I said she came before she used to dress provocatively, on the day I cannot tell what she was actually
wearing.
[8] Subsequently, Mr Fleming gave evidence of the degree of attention he was paying to the appellant that morning:9
Q. So from the 22nd of September 2010 you walk in to get a man to sign a book and you’re telling us you noticed where one individual was sitting in the pokie room?
A. Yes I do. I also have a camera behind the bar that looks into the pokie room on a small screen and I keep a check that no underage
people or anyone that goes in there that shouldn’t be in there and I
was keeping an eye on the defendant that day because of her behaviour in the pokie room and because of the amount of money
she changed up we had to keep an eye on people with problems with
gamble, with people talking to the machines and that’s how I know
where the defendant was sitting on that day.
[9] Mr Fleming was unshaken in his identification of “the defendant” as the person shown in the security footage. That identification was based not on facial recognition but on his recollection of where “the defendant” was seated in the pokie room at the time that he walked past her to pay out the winner at another machine. In other words, he was sure that it must have been her, although he expressed that certainty in terms of recognition.
The appellant’s submissions
[10] Mr Phillip, for the appellant, narrowed his submissions to concentrate on one aspect of the Court procedure. That is, at no time was Mr Fleming called on to
identify the appellant as being the person who he had identified in the security footage and who he repeatedly referred to as “the defendant”. Mr Phillip submits that in the absence of such identification the District Court Judge could not have been sure that the appellant was the person to whom Mr Fleming was referring.
[11] There is nothing to this point. I have already quoted the passage of evidence in which Mr Fleming referred to his knowing that “the defendant” was Cherie Scott. That was because he had obtained a receipt from her for the $1,000 she had won the previous Sunday. There is no reasonable possibility that the appellant was not the person of whom Mr Fleming referred as “the defendant”.
[12] However, despite Mr Phillip’s focus on this point, I must still be satisfied that Mr Fleming’s evidence was sufficient to justify the District Court Judge’s conclusion that he could be sure that it was the appellant who was shown in the security footage leaving the pokie room to go into the bar and then to enter the area behind the bar.
The Crown’s submissions
[13] I agree with the Crown’s submission that:10
10.The key question in this case must be whether the Judge was able to be sure that the person referred to in the evidence as being the only person able to have committed the theft by virtue of their location at the time of the offending was the appellant.
[14] The Crown submits that on the evidence the District Court Judge was able to reach the conclusion as to identification which he reached. Not only was there the positive evidence of identification but in terms of opportunity Mr Fleming had excluded the possibility that the other two employees working at the Sideline Bar that day could have been behind the bar at the relevant time.
The District Court Judge’s decision
[15] The District Court Judge went through the evidence and directed himself to the quality of the security footage. He made the point that Mr Fleming was not
relying only on the photographs “but more so his recollections on the day in question”.11 His Honour went on to say:
[12] Accepting then, as I do, Mr Fleming’s evidence that the defendant was present on this particular day, it really comes down then to whether or not I accept his evidence that the photographs show and accords with his recall that it was the defendant who had left and indeed it was the defendant who is shown in the various photographs that he has relied upon. If it is, then it would place the defendant as one of the suspects, given my acceptance of Mr Fleming’s evidence that the money would have gone missing at the time that he said it did. I am also prepared to accept his evidence that he did notice that money was missing and he did count it to know that it was $2000 that was missing.
[13] That being the case, it is a question then of what are the other reasonable possibilities. I am prepared to accept Mr Fleming’s evidence that it was the defendant who was there and is shown in the photographs. That is obviously crucial in the end. I am also satisfied that there was no-one else in the bar area. There was, admittedly, one other female employee as I understand it and one other male employee. I have to consider whether it is a reasonable possibility that they might have taken the money, but going back from that, the real issue is this: if I accept Mr Fleming’s evidence that it was the defendant in the pokie room and that she was the one who left, that she was the one who went across the bar and then she did indeed go behind the doors, then that, in my view, is very strong evidence that the defendant has gone to the area were the float money was kept.
[14] There is, of course, no justification whatsoever for the defendant of having gone into that area. She was not employed by the hotel quite obviously and, as I say, that is important.
[15] I appreciate that caution is required when it comes to matters of identification, but the case was slightly different in the sense that it is not just the photographs that are relied upon, it is the other evidence. Mr Fleming has knowledge and recollection of the day and of prior contact with the defendant that is important. I have, of course, acknowledged at the start that the photographs are murky and on their own they would be insufficient to prove this charge, but having listened to Mr Fleming, in the end, I am satisfied that he has drawn the correct conclusion. It was the defendant who went out, she was the one who went into this area and she therefore is the one who must have taken this money. That is the inference I draw and that is the conclusion I reach beyond reasonable doubt, on the basis of the evidence that I have heard.
Decision
[16] This is an appeal by way of rehearing.12 I have to satisfy myself that there was sufficient evidence for a conviction to be entered. In making this assessment, I can have regard to the reasoning of the District Court Judge but I do not have to give it any special deference. I can bear in mind that the District Court Judge had the benefit of hearing the oral evidence and making direct assessments of the reliability and credibility of the witnesses. However, I must make my own independent assessment of the evidence.
[17] In this case I am satisfied that the District Court Judge was entitled to draw a sure inference that the appellant was the person who stole the money. This was not a case where identification depended upon facial recognition of a person depicted in photographs. Mr Fleming knew the appellant, had reason to observe her on the morning of the theft, and when he went into the pokie room to pay the winner he knew that the appellant was in the pokie room and he knew where she was seated. He did not see her leave. When he saw the security footage of the female coming out of the pokie room immediately after he entered it, he knew that that person had to be the appellant. The security footage showed that that person went behind the bar area. The inference that such access must have been for an unauthorised purpose is irresistible.
[18] Accordingly, I find that the District Court Judge was entitled to conclude beyond reasonable doubt that the appellant stole the $2,000. The appeal is
dismissed.
Brewer J
12 Summary Proceedings Act 1957, s 121; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
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