The Queen v [ ] Dawson

[2004] NZCA 450

IN THE COURT OF APPEAL OF NEW ZEALAND

CA430/03

THE QUEEN

v

[     ] DAWSON

Hearing:         27 May 2004

Coram:William Young J Williams J

Wild J

Appearances: T K Stevens for Appellant

C J Lange for Crown Judgment:  17 June 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Appeal

[1]    On 12 September 2003, at the conclusion of her second trial, a jury convicted the appellant, Ms Dawson, on 48 counts of theft as a servant. She was formerly employed as a part-time receptionist at Orana Wildlife Trust, a private zoo, and 45 of the counts related to her thefts from the till at Orana Park on many of the days she was on duty. Two other counts related to theft of two Orana Park T-shirts and a disposable camera. The final count was described as a “wrap-up” count  alleging theft of $1937.30 from Orana Park between 29 January 2000 and 6 May 2001, that being a representative count and said by Mr Stevens, counsel for Ms Dawson, to be

R V [   ] DAWSON CA CA430/03 [17 June 2004]

an aggregation of till discrepancies which could not be ascribed to a particular day when Ms Dawson was working or were amounts too small to warrant a separate charge.

[2]    This judgment deals with Ms Dawson’s appeal against all convictions. There was no appeal against the sentence of 300 hours community work and reparation of

$13,000.

[3]The grounds of appeal were:

a)That the investigation of the deficiencies was inadequate, particularly because they were conducted by a Mr Stewart, Orana Park’s administration manager, rather than by Police.

b)There was inadequate prosecution disclosure, particularly a failure to retain all Orana Park’s till and EFTPOS records, especially those for days Ms Dawson was not working.

c)That a ruling was wrong which prevented counsel from cross- examining a witness on a remark she allegedly made to the officer-in- charge which was overheard by a juror during the first trial and relayed to Mr Stevens.

d)That the verdicts were unreasonable and could not be supported having regard to the evidence.

Investigation and Disclosure Grounds of Appeal

[4]    The Crown case was that Ms Dawson was employed by Orana Park as a receptionist and counter sales person, her duties including receipt of admission fees and other payments by means of a cash register and, where the customer wished to use EFTPOS, completing the transaction on a nearby EFTPOS machine. She was also responsible for sales of souvenirs for which there was a separate till. The  Crown alleged that up to 25  times  daily  when  the  EFTPOS  facility  was  used, Ms Dawson entered the transaction on the EFTPOS machine but failed to enter it on

the cash register. At the end of the day she tallied up the sums rung up on the EFTPOS machine but not rung up on the till and removed that amount of cash. Her actions meant her daily cash register summary still balanced. She was alleged to have stolen money in that way on almost every day she worked, taking sums totalling approximately the amount of reparation ordered. The specific  counts related to souvenirs and a disposable camera which she took from the souvenir shop and gave to a colleague.

[5]    Mr Stewart was responsible for Orana Park’s financial affairs. Returning from holiday in early 2001 he checked Orana Park’s banking reconciliations and daily till sheets. He became concerned at the high proportion of EFTPOS transactions by comparison with the comparatively small amounts of cash being banked. The position was particularly pronounced on Sundays and Mondays when Ms Dawson usually worked. In April-May that year he re-checked the position, covering a longer period than in his original investigation, and found a number of EFTPOS transactions that did not appear on the till tapes. After spending hundreds of hours checking the dates, times and amounts of thousands of transactions, he produced documentation and schedules of various transactions on the days listed in the indictment. At trial these became the principal basis for the prosecution  including the representative count. The base documents relating to each day listed in the indictment were produced in separate exhibit booklets.

[6]    Police were contacted at a fairly early stage of Mr Stewart’s analysis. At that point he believed he discerned a trend pointing to Ms Dawson as a thief. There was then a delay until Mr Stewart completed his analysis covering every day Ms Dawson worked. The Police accepted Mr Stewart’s calculations. They did no similar examination themselves nor contracted any independent person to repeat or check Mr Stewart’s calculations though Sergeant White, the officer-in-charge, analysed  Mr Stewart’s calculations and familiarised himself with their detail.

[7]    Disclosure followed Ms Dawson being charged. In addition to material relating to the days Ms Dawson worked which formed the basis of Mr Stewart’s calculations and, ultimately, the prosecution case, in December 2001 the defence also sought disclosure of all documentation including EFTPOS receipts, tapes for

both tills and daily summary sheets for the days Ms Dawson did not work to check whether there was a pattern of discrepancies in her absence.

[8]    What the defence received by way of disclosure was photocopies of all the many documents on which the prosecution intended to rely plus the originals of all other documents still held by Orana Park. The photocopies of the documents underlying the charges filled two boxes. The defence was given five other cartons. One contained 56 complete till tapes.  The other four contained boxes of receipts.  All five related to days Ms Dawson did not work. The defence signed a receipt for all that material.

[9]    Police took the view they had disclosed to Mr Stevens all the EFTPOS and till tapes still held by Orana Park. They included not just the souvenir till tapes but also those relating to the main till and the EFTPOS tapes. Mr Stevens claimed the defence never received the main till tapes.

[10]   It was common ground that till and EFTPOS records for days Ms Dawson did not work at Orana Park were not adduced in evidence. But the impasse was not resolved as to whether they were ever disclosed to the defence or whether, having been disclosed, they had been mislaid or even destroyed by the accused.

[11]   Without evidence from Sergeant White and Mr Stevens, it is impossible for us to resolve that question, but we note that Mr Stevens’ receipt for the boxes of disclosed documents a description which, on its face, included the requested records for the days Ms Dawson did not work. All of that notwithstanding, Mr Stevens – who has acted for Ms Dawson ever since she was charged – felt able to submit to us that the appellant had suffered a possible miscarriage of justice through inability to check whether there were discrepancies on days she did not work similar to those on days she was at Orana Park. For the reasons mentioned, there is no evidential basis on which we could conclude Ms Dawson’s defence was prejudiced through incomplete disclosure.

[12]   For the Crown, Mr Lange submitted the Court should regard the defence receipt of all the documents listed as binding. In any case, he submitted, evidence

which has been lost does not afford an appellant relief unless the loss occurs through inadequate Police investigation or a failure to preserve items held. That appears  from the decision of this Court in R v Harmer (CA324/02 and CA352/02 26 June 2003 paras [87]-[91]) where the following appears:

[87]      It is not of course the position that a criminal trial cannot proceed or must be regarded as unfair to the defence or in breach of the right guaranteed under s24(d) merely because certain material or testimony which might possibly have contradicted the Crown case is unobtainable or is no longer available or has been contaminated. But what if the reason for the absence  or contamination of evidence is the failure by the police to carry out an adequate investigation or a failure to preserve items which have come into their possession or which they could have secured? Some guidance is to be found in the jurisprudence of the North American jurisdictions although the constitutional guarantees, while largely concerned with the same values, are not identical to the guarantees found in our Bill of Rights.

[88]In the United States in the two leading cases, California v Trombetta

467 US 479 (1984) and Arizona v Youngblood 488 US 51 (1988), the Supreme Court has erected a major obstacle for defendants. The failure to preserve evidence of “apparently exculpatory value” will not result in a violation of the right to due process unless (a) the exculpatory value of the evidence was apparent before it was destroyed; (b) there are no reasonable alternative means of obtaining evidence of comparable value to that lost; and

(c) the accused demonstrates actual bad faith on the part of the police. That approach seems overly restrictive and we do not propose to follow it.

[89]      In Canada the majority view of the Supreme Court in R v La (1997) 116 CCC (3d) 97, was that there is a breach of the right to make full answer and defence under s7 of the Charter whenever the police have destroyed or failed to secure evidence with the deliberate intention of making it unavailable to the defence or as a result of “unacceptable negligence”. In the principal judgment of Sopinka J, it was said that in order to determine whether the explanation of the Crown was satisfactory, the court should analyse the circumstances surrounding the loss of the evidence:

The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off- chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. (para [21])

Thus the Supreme Court regarded the failure to preserve evidence as a breach of an obligation to make full disclosure which was seen as an important means of ensuring that an accused was afforded the right to make full answer and defence. In addition, there was said to be an abuse of  process if evidence had been deliberately destroyed for the purpose of defeating the Crown's obligation of disclosure.

[90]      We find particularly helpful the concurring judgment of L'Heureux- Dubé J, in which La Forest, Gonthier and McLachlin JJ joined. She agreed with Sopinka J that where relevant material once in the possession of the Crown or the police has become unavailable, the Crown must explain the circumstances which led to its absence. The focus must be on the reason  why the material did not make it into the hands of the defence. But, she said, where no abuse of process is demonstrated, that concludes the inquiry into the lack of disclosure. However, the accused can still attempt to demonstrate that there is a real likelihood of prejudice to the trial as a result of the loss. Earlier in her judgment L'Heureux-Dubé J quoted from her own opinion in R v O'Connor (1995) 130 DLR (4th) 235 at para [74], in which she approved the statement of the British Columbia Court of Appeal in the same case ((1994) 89 CCC (3d) 109 at 148-9) that there will be no violation of the accused's right unless the accused establishes that the non-disclosure has probably prejudiced, or had an adverse effect on, his or her ability to make full answer and defence. L'Heureux-Dubé J said in O'Connor, and affirmed in La, that:

Where the accused seeks to establish that the non-disclosure by the Crown violates s.7 of the Charter, he or she must establish that the impugned non- disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect.   I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. (para [41]) [Emphasis in original]

[91]      In our view, there are two relevant considerations, namely whether the evidence has been lost because of acts or omissions by the police involving bad faith, and whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case. The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt. That is after all the fundamental question. The characterisation of the conduct of the police in this regard will not be determinative save that, if it appears that they were motivated by a desire to avoid having the evidence before the court or otherwise acted in bad faith, it may readily be inferred that the evidence would have been helpful to the defence. But, in the absence of  such deliberate conduct or other bad faith by the police – which is the position in this case - the concern should be with the effect on the defence of the absence of the evidentiary material rather than with whether the police have been negligent. The particular significance of the missing evidence to the defence will necessarily have to be considered in light of all the available evidence. When, as here, the issue arises on an appeal from a conviction, the ultimate question will be whether the unavailability of the evidence to the defence appears to have given rise to a miscarriage of justice.

[13]   For the reasons discussed in the next paragraph, the position as outlined in that extract shows there is nothing in this point which avails Ms Dawson.

[14]   All material in Police possession – both relating to days when Ms Dawson worked and other days – was disclosed to the defence, or arguably so. It was acknowledged by prosecution witnesses that the entirety of the till and EFTPOS records for the whole of the period covered by the charges had not been retained by Orana Park but, beyond that, there is no evidence that what was unable to be disclosed would have been of real assistance to the defence. Responsibility for the records, after all, lay with Orana Park rather than the Police. There is no basis for  any conclusion Police acted in bad faith. Mr Stevens vigorously cross-examined witnesses as to the absence of records, possibilities of errors or discrepancies on days other than those on which Ms Dawson worked and lack of independent checking of Mr Stewart’s calculations. Within the records available, Mr Stevens mounted as effective a defence as was possible. For the reasons mentioned, we are unable to make a ruling one way or the other on whether Mr Stevens received the main till tapes. All of that notwithstanding, the jury plainly regarded the documentary and  oral evidence as providing sufficient proof of the charges. Even if Orana Park failed to hand all their records to the Police or did not keep them, no basis has been made out for concluding there was any miscarriage of justice or significant prejudice  to Ms Dawson on this aspect of the appeal.

[15]   The second aspect of the investigation which was attacked was the fact that it was wholly conducted by Mr Stewart of Orana Park, the complainant. After his initial analysis, Mr Stewart was claimed  to  be  biased  in  favour  of  concluding  Ms Dawson was the thief. That analysis, it was said, was accepted, unchecked, by the Police. Additionally, no checks were made to verify its accuracy such as the installation of security cameras filming employees, there was no comparison between days worked and not worked and no independent interviews of other till operators or evidence of till practice. Orana Park was also said to be biased against Ms Dawson because of an employment dispute arising out of her dismissal.

[16]   In relation to this aspect of the appeal Mr Stevens submitted that before criminal proceedings are commenced it is crucial the State conducts all inquiries and

investigations underlying criminal prosecutions so as to ensure impartial and objective assessment by experienced investigators. He submitted Ms Dawson’s defence was severely and irretrievably compromised by the lack of such an investigation, a submission buttressed by extensive reference to evidence. He relied on the High Court of Australia’s decision in Penney v The Queen (1998) 72 ALJR 1316 where deficiencies of a police investigation were in issue. However, in that case, Callinan J, speaking for the Court, said (at para [18] p1319) that “there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process or indeed of a fair trial”. The Judge went on to cite (para [22] p1320-1321) from Jago v District Court (NSW) (1989) 168 CLR 23, 57 which created an exception to that principle for cases of “actual or ostensible bias”. Mr Stevens submitted those exceptions applied in this case.

[17]   The broad proposition advanced by Mr Stevens is unsupported by authority and cannot be accepted. While, of course, investigations underlying criminal proceedings are usually undertaken by Police or other State agencies, there is no rule of law requiring such. Not infrequently services of private individuals are retained where investigations require information or the application of skills not available from State agencies. It is by no means uncommon for investigations  of circumstances giving rise to possible criminal conduct to be undertaken privately before matters are reported to Police. Corporate, insurance or other frauds are commonly-found  examples.   Private   prosecutions   would   be   impossible   if   Mr Stevens’ propositions were held to be law.

[18]   While Mr Stewart adhered in evidence as to the correctness of his analysis,  he could not be said to have been biased in his investigation within the meaning normally accorded that term. And, again, he was vigorously cross-examined on all aspects of his investigation yet the jury still found the  proof  adequate  to  convict Ms Dawson.

[19]That aspect of the appeal must accordingly also be dismissed.

Restricted cross-examination:

[20]   After the first jury had been discharged following disagreement, a juror sent Mr Stevens a computer disc expressing concerns about the trial. One issue apparently raised was that she said she heard Detective White and a Ms Anderson, the Chief Executive of Orana Wildlife Trust, speaking in the courthouse lift during a luncheon adjournment. According to Mr Stevens, Ms Anderson said words to the effect that “If I thought those bloody tapes were so important I would never have got rid of them”. Without seeking directions beforehand (Tuia v R [1994] 3 NZLR 553,

556) Mr Stevens arranged for a private investigator to obtain a statement from the juror. The conversation recorded in that statement was that Ms Anderson said “If I knew those tapes were so important I would have kept them”.

[21]   During the retrial Mr Stevens put to Ms Anderson the purport of both conversations. He received indignant denials. She said “I did not destroy those  tapes” and any statement to the contrary was untrue. Cross-examination on the topic was then halted by the trial Judge. He directed the jury to disregard that evidence.  Mr Stevens submitted he was in error in so doing as the cross-examination was relevant and bore on whether the defence had received all the till tapes for the days Ms Dawson did not work.

[22]   This aspect of the appeal again raises the sufficiency of disclosure. To that extent, it has already been dealt with.

[23]   Secondly, the point does not raise a question of juror misconduct since it was fortuitous that the person who overheard the conversation was a juror. However, in light of this Court’s decision in Tuia, it may have been prudent for Mr Stevens to have sought leave before having the matter investigated and raising the topic in cross-examination.

[24]   In any event, the form of the conversation to be preferred is that in the juror’s signed statement. In that form, it appears innocuous. It amounts to no more than an acknowledgement that all tapes would have been retained had it been realised that the alleged investigative deficiencies were to be so thoroughly probed by Mr Stevens

in cross-examination. Seen in that light, the remark would appear to have been no more than regretful acceptance that, as matters turned out, retention of all tapes would have been desirable and would have avoided that line of cross-examination. It certainly does not appear to be any acknowledgement of deliberate destruction of evidence.

[25]We therefore find ourselves unable to accept that ground of appeal.

Verdict unreasonable or unsupportable?

[26]   Mr Stevens’ submission on this aspect was that, if the verdicts were to be upheld, they meant Ms Dawson committed theft on virtually every day she worked despite never being seen. Further, Mr Stewart’s analysis made no allowance for her ever making an error and disregarded evidence given by Ms Dawson and accepted by others as to how till anomalies may have innocently occurred. From that, he submitted, the jury must have been unable to understand the detail of the case, the verdicts were not based on any proper comprehension of the evidence and were therefore unreasonable.

[27]   In response, Mr Lange pointed to passages in the summing-up dealing with defence evidence and alternative scenarios advanced to explain the discrepancies.  He submitted that, on the totality of the evidence, there was a sufficient evidential basis to justify the verdicts.

[28]   We agree, having considered the evidence and the submissions. It is apparent that despite the numerous matters raised in cross-examination and in Ms Dawson’s evidence and the innocent explanations proffered for the discrepancies, there was ample material before the jury to justify the verdicts it reached on the individual counts, the representative count and the counts relating to the T-shirts and camera.

[29]   We accordingly again find ourselves unable to accept that any basis has been made out to interfere with the jury’s verdicts on this ground.

Result

[30]   All grounds on which the verdicts were challenged having been rejected, all the appeals against conviction are dismissed.

Solicitors:

Crown Solicitor, Christchurch