The Queen v Crowe

[2006] NZCA 84

IN THE COURT OF APPEAL OF NEW ZEALAND

CA6/06

THE QUEEN

v

MARK JOSEPH CROWE

Hearing:10 May 2006

Court:William Young  P, O'Regan and Robertson JJ

Counsel:N Deobhakta for Appellant

B J Horsley for Crown

Judgment:10 May 2006 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]       The appellant was convicted after a jury trial of one charge of theft and one charge of using a document with intent to obtain a pecuniary advantage.  He was sentenced by the trial Judge, Judge Wolff to six months imprisonment.  He now appeals against his convictions.

[2]       Only one ground of appeal is pursued by counsel for the appellant.  He alleges that the Judge intervened in a manner that went beyond clarifying the evidence of a prosecution witness, and as a consequence the jury could have formed the belief that the Judge had predetermined that the appellant was guilty of fraud.  Thus, counsel argues, a miscarriage of justice resulted. 

[3]       The “intervention” to which reference is made by counsel was not, in fact, an intervention at all.  Rather it was an incident in which the Judge misheard what a witness had said.  The witness was describing a conversation he had had with the appellant after the appellant had sold a motor vehicle.  The witness said that when the appellant told him he had sold the vehicle, the witness had told the appellant he was “a bloody fool in selling the vehicle”.  The Judge thought that the witness had said the appellant was “a bloody fraud”.  He asked the witness what the appellant’s response was to the suggestion that he was “a bloody fraud”.  Defence counsel immediately intervened to correct the Judge, explaining that the word used was “fool”, and this was confirmed by the witness.  Defence counsel then spelt out “F O O L”.  Thus, the Judge’s mistake was immediately corrected.

[4]       Sometime after this exchange happened, defence counsel asked the Judge to abort the trial for various reasons.  One of these was the incident described above.  The Judge declined to abort the trial. 

[5]       In his summing up, the Judge referred to the fact that the jury would have a copy of the transcript.  He reminded the jury of the above incident, and reiterated that he had made a mistake when he misheard the word “fool”, and that this was recorded in the transcript.  He did not mention the word “fraud”. 

[6]       Mr Deobhakta submitted that:

It is of serious concern that there was the appearance that the presiding Judge may have predetermined the fact that the appellant was a fraudster. 

As a consequence of his Honour’s error the jury may have formed a view that the Judge had formed the opinion that Mr Crowe was a fraudster. 

It is submitted that the Judge’s intervention and the use of the words “a bloody fraud” with reference to the appellant tainted the trial from that moment on.

…

It is of serious concern that the Judge’s intervention, which the members of the Jury heard and observed, may have influenced the Jury to reach a perverse verdict.

After the Judge’s use of the words “he was a bloody fraud” before the Jury, it is submitted that the appellant was thereby denied a fair trial, or even the appearance of a fair trial. 

[7]       Counsel submitted that the Judge’s reference to the incident in his summing up compounded the prejudical effect of the earlier incident.

[8]       In support of his argument, counsel referred us to a number of cases involving improper intervention in the trial by Judges.  He suggested that they were somehow relevant to the situation that arose in this case.  However, he subsequently noted, accurately, that he could find no authority which was directly on the point raised in this appeal. 

[9]       We take the same view of the situation as that which was taken by the trial Judge when he declined to abort the trial.  The situation that arose was a simple mistake by the Judge which was immediately corrected.  There is no reason to believe that the Judge’s error would have been perceived by the jury as an indication that the Judge had formed the opinion that the appellant was a fraudster, no basis for alleging that the incident tainted the trial, and even less basis for suggesting that the incident may have influenced the jury to reach a perverse verdict.

[10]     The appeal lacks any merit.  It is dismissed.

Solicitors:
Crown Law Office, Wellington