The Queen v Capstick

[2008] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND

CA264/2008
[2008] NZCA 299

THE QUEEN

v

SHANE TRISTIN CAPSTICK

Hearing:30 July 2008

Court:Ellen France, Gendall and Miller JJ

Counsel:A Bailey for Applicant

N P Chisnall for Crown

Judgment:13 August 2008 at 11.30 am 

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       Mr Capstick, the applicant, was convicted following a trial before a judge alone, Judge Couch, on one count of theft under s 219 of the Crimes Act 1961: DC CHCH CRN 07609011448 19 February 2008.  Mr Capstick’s conviction related to the taking of a hard drive valued at $25.00 from a computer at his place of work.  MacKenzie J dismissed an appeal against conviction: HC CHCH CRI 2008-0409-36 19 March 2008.  Leave to appeal to this court was refused by MacKenzie J on 2 May 2008.

[2]       The applicant now seeks special leave to appeal to this court under s 144(3) of the Summary Proceedings Act 1957 against the decision of MacKenzie J. 

Basis of proposed appeal

[3]       The questions the applicant wishes to raise on appeal are as follows:

(a)What threshold must an appellant demonstrate on an appeal against a summary conviction involving findings of fact based on credibility before an appellate court will interfere with such findings?

(b)To what extent is a Judge required to specify reasons with respect to findings of fact based on credibility?

Background

[4]       There were three witnesses at trial, namely, Ms Van Den Broek, Mr Clark and the officer in charge.  The applicant gave a statement to the police but called no evidence.  The facts as they emerged before Judge Couch can be briefly stated.

[5]       Ms Van Den Broek owned a pizza business.  She kept accounting records on a personal computer.  When the business became part of a franchise, she stored the computer unused on the premises.  She said she wanted to keep the data on the computer relating to the previous business so that she could retrieve it at some point to prepare tax returns.  The applicant was also employed in the pizza business and for a period Ms Van Den Broek worked in the shop with him.

[6]       In late January/February 2006, Mr Clark came on the scene and it appears that he took over much of Ms Van Den Broek’s role.  The Judge put it at [6] that “effectively Mr Clark and [the applicant] became co-managers of the shop on a day to day basis”.

[7]       Mr Clark’s evidence was that he saw the applicant dismantling Ms Van Den Broek’s computer.  He said he saw the applicant remove the hard drive, put it in his bag and take it home.  Mr Clark also said that he asked the applicant why he was doing this and was told that the applicant was taking parts of the computer as spare parts. 

[8]       In early March 2006, the applicant was dismissed from his employment.  At about this time, Ms Van Den Broek asked Mr Clark to bring the computer to her.  This prompted Mr Clark to tell her he had seen the applicant taking the hard drive.  Ms Van Den Broek said in her evidence that she did not give the applicant any authority to interfere with the computer or to use it and nor did she give him authority to dismantle or remove any parts from it.  She also said that the hard drive was missing from the computer and that it had not been returned to her. 

[9]       The applicant was interviewed by the officer in charge on 6 July 2007.  He made a statement in which he admitted removing the hard drive.  He said that he put this hard drive into another computer at the premises and left it there.  He also said that he had Ms Van Den Broek’s authority to do that. 

[10]     The Judge in finding the case proven said at [14] that he preferred the sworn evidence of the three witnesses and indeed, had “no difficulty in putting entirely to one side” the applicant’s explanation in his statement to the officer in charge. 

[11]     When the matter proceeded to the High Court the focus was on the findings as to credibility and therefore on whether the conviction was supported by the evidence.  In this context, the applicant argued that the preference of the evidence of the sworn witnesses amounted to a misdirection on the Judge’s part as to the burden of proof.

[12]     MacKenzie J rejected the latter argument at [7] on the basis that Judge Couch “clearly” indicated he recognised that the onus was on the Crown.

[13]     As to the factual findings, MacKenzie J said at [8]:

It should be unnecessary to re-iterate the basic general proposition as to an appeal against findings of fact, namely that an appellate court cannot reverse a factual finding unless compelling grounds for doing so are shown.  The comments of Thomas J in Rae v International Insurance Brokers (Nelson Marlborough) Limited [1998] 3 NZLR 190 [(CA)] as to the reasons for that are well known. He referred to the manifest advantages possessed by the trial judge in determining questions of fact where necessarily their credibility [is involved] … .

[14]     MacKenzie J went on to discuss the submission on the applicant’s behalf that there were inconsistent aspects of the evidence of the prosecution witnesses.  The Judge questioned the relevance of these matters and concluded that the appeal must fail. 

Discussion

[15]     This court may grant special leave under s 144(3) where there is a question of law which, by reason of its general importance or for any other reason ought to be submitted to this court.  The court must be of the opinion that the question ought to be so submitted: R v Slater [1997] 1 NZLR 211 at 214 (CA).

[16]     In applying the statutory test in this case we do, however, make allowance for the fact that neither party was given the opportunity to make submissions to the High Court on the application to that court for leave.  As we understand it, the application was dealt with on the papers on the basis of the applicant’s application for leave and the respondent’s memorandum of opposition.  We also understand that the parties were not asked if they sought any form of oral hearing or whether they were content to have the matter dealt with on the papers. 

[17]     Having said that, we are satisfied that this is not a case where special leave ought to be granted.

[18]     The essence of the defence before Judge Couch was, put baldly, that Ms Van Den Broek and Mr Clark conspired together in the bringing of the charge as a way of Ms Van Den Broek getting her own back on the applicant.  The background to this apparently related to the applicant’s suggestion he would report various concerns about Ms Van Den Broek’s accounting to the relevant authorities.

[19]     This defence was different to that advanced by the applicant in his statement to the police.  Judge Couch’s decision to prefer the evidence of the sworn witnesses is therefore perfectly explicable.  Indeed, absent evidence from the applicant, the Judge was correct to find as he did.  In these circumstances it is plain that, even if the Judge on appeal had overstated the threshold for intervention, that is not going to affect the conclusion.  There is no basis for interfering with the factual findings.

[20]     The Judge’s reasons in this context were quite sufficient.  Accordingly, even if this question had been raised before the High Court, we would not grant leave to allow it to be pursued. 

[21]     For these reasons, the application for special leave to appeal is dismissed.

Solicitors:

Crown Law Office, Wellington