The Queen v Kant
[2008] NZCA 269
•31 July 2008
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA25/2008
[2008] NZCA 194THE QUEEN
v
YASHNI KANT
Hearing:17 June 2008
Court:Chambers, Randerson and Winkelmann JJ
Counsel:S D Patel for Appellant
M D Downs for Crown
Judgment:1 July 2008 at 8.45 am
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe interim order made on 17 June 2008 suppressing publication of the evidence and argument of the hearing of the appeal is extended until the appellant’s application for permanent suppression of appeal-related details, dated 25 June 2008, is determined. We also make an order prohibiting publication of this judgment until that determination.
Note: Order B now spent. See [2008] NZCA 269
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] After a three day trial on 1-3 October 2007 before Judge Duncan Harvey in the District Court the appellant was convicted on two counts of indecently assaulting one of his young female employees by touching her genitalia and breasts. We were told the appellant has now largely completed his sentence of community work and that he has paid the reparation ordered. He now appeals against conviction.
[2] The offending for which the appellant was convicted occurred on 26 October 2005 in an office at a country grocery store operated by the appellant. The appellant denied that any touching had occurred and, in a statement to the police, suggested that he was the subject of a false complaint by the employee who was, on the appellant’s account, undergoing some personal and family difficulties.
[3] At the outset of the trial, the appellant’s then counsel Ms Dyhrberg was successful in obtaining a ruling from Judge Harvey excluding propensity evidence which the Crown had sought to call. This evidence came from two former employees who were willing to testify that the appellant had touched them inappropriately while they were working at his store seven years previously.
[4] Having obtained this ruling, Ms Dyhrberg was loath to call character evidence on the part of the appellant. She was concerned that if she did so, the Crown could renew its application to recall the propensity evidence with the likelihood that serious damage would be done to the appellant’s case if this evidence were introduced.
[5] Ms Dyhrberg had intended to elicit from the officer-in-charge the fact that the appellant had no previous convictions but she frankly admits she forgot to do so. She applied to have the officer-in-charge recalled to cover this point but her application was refused.
[6] Some of the evidence at trial was focused on who was present in various parts of the premises at the time and whether, as the appellant contended, employees or customers could have seen through an internal window into the office where the offending allegedly occurred.
[7] Arising from this brief background, the appellant raises the following points in support of a submission that trial counsel error resulted in a miscarriage of justice:
a)Trial counsel failed to elicit from the officer-in-charge that the appellant had no previous convictions.
b)Trial counsel failed to call character evidence.
c)Evidence should have been called from a builder to substantiate when the window between the store and the office was installed.
[8] A further appeal point relating to a portion of the transcript of the appellant’s police interview was abandoned when it was established that the offending material had in fact been excised.
[9] The appellant and Ms Dyhrberg each filed affidavits in relation to the appeal issues and each was cross-examined. The appellant also filed affidavits confirming the evidence which could have been called but for the alleged failures by trial counsel.
The evidence at trial
[10] The evidence for the Crown essentially comprised the complainant’s evidence along with that of three other witnesses who deposed to her demeanour immediately after the incident. The complainant stated she was a 16 year old school girl at the time who worked part-time in the appellant’s store between 4 pm and 6 pm each day of the week. On the day in question the appellant and his son were at the store along with three other employees and the complainant. Between 5 pm and 6 pm is a busy time and there were several customers in the store. The complainant and the appellant’s son were assisting him to move some furniture into the office area. At one point one of the other staff members (Marie Cartwright) came into the office to assist. The appellant’s son was also coming and going.
[11] Shortly before closing time at 6 pm, the appellant and the complainant were in the office alone. According to the complainant, the appellant called her over to a computer monitor adjacent to his desk in the office area which displays images from the security cameras in the store. She went over to the monitor and the appellant pointed out a customer at the checkout. He asked her if she knew who the customer was. He then remarked that the complainant’s stepmother was not yet there to pick her up after work. He then grabbed her around the waist, rubbed himself against her and touched her vagina, bottom and breasts. She pushed him away. He tried to kiss her on the cheek but she pushed him away again. She then immediately left the shop.
[12] Her stepmother was not waiting for her at that time but she noticed a male friend who had a car. This young man gave evidence that he took her home. She was crying during the journey and when they arrived at her address. The complainant’s sister describing taking the complainant to another address where their stepmother was at the time. On the journey, the complainant was crying inconsolably. When they arrived, the stepmother’s evidence was that the complainant was “wailing like an animal” and was retching. The police were immediately contacted and began investigations the following day.
[13] When interviewed by the police some four days after the incident the appellant denied touching the complainant. He said there was a power failure that afternoon and that the security videotapes would have been recorded over by other footage. He explained that the cameras did not cover the office area. He stated that he believed the complainant had made false allegations since she was upset due to a temporary separation of her father and stepmother.
Trial counsel’s failure to elicit from the officer-in-charge that the appellant had no previous convictions
[14] Where an accused person had no previous convictions, it was common practice prior to the passage of the Evidence Act 2006 for defence counsel to elicit from an appropriate police officer giving evidence for the Crown that the accused had no previous convictions. This was not generally regarded as giving rise to a risk that if the accused gave evidence, he would be cross-examined with a view to establishing his bad character. This appeal raises the question whether evidence of this kind remains admissible under the Evidence Act and, if so, on what basis.
[15] At common law, evidence of the good character of an accused was admissible for certain purposes but with the consequence that the Court had a discretion in certain circumstances to permit the prosecution to challenge such evidence by calling evidence of the accused’s bad character or cross-examining for that purpose.
[16] One of the leading decisions as to the purposes for which good character evidence was relevant prior to the Evidence Act was the decision of a full bench of this Court in R v Falealili [1996] 3 NZLR 664. This Court accepted that evidence of the good character of an accused could be relevant both to his or her credibility and whether it was unlikely that he or she committed the offence charged. Neither of the two purposes for which such evidence was available had primacy over the other. These propositions were illustrated at 666:
Historically, an accused has long been able to adduce evidence of good character. It is now accepted that its relevance may be to both the credibility of the accused and whether it is unlikely that he or she committed the offence charged. In many cases those two "limbs" as they have been described are in reality two facets of the same thing, and will almost always overlap. Any denial of the truth of the allegations of criminal conduct brings into issue the credibility of the denial, and by its very nature good character evidence will go to so-called propensity. Although the origin of the rule allowing character evidence predated the right of an accused to give evidence, there is no purpose in today's conditions in treating one or other of the two limbs as having primacy. As already mentioned in practice they will often be difficult to separate. Both are relevant to the ultimate question of proof of guilt, which is why the evidence is admissible.
[17] In Falealili this Court referred to English authorities such as R v Vye [1993] 1 WLR 471 (CA) and R v Aziz [1996] 1 AC 41 (HL) and specifically addressed the issue of the relevance of a lack of previous convictions and the need for appropriate jury directions at 667:
It is necessary then to define what is evidence of good character in this particular context. In England the fact that an accused person has no previous convictions is regarded as being evidence of good character. This may well have led to some of the problems arising in that jurisdiction, still not entirely removed, as can be seen from the need recognised in Aziz to allow for an exception to the general rule where the result would be an affront to common sense. We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person's good character. It may be a factor in assessing good character, but standing on its own it is generally neutral. A person of bad repute may well have no convictions. We do not think it necessary for directions to be given merely because absence of previous convictions has been elicited. The need will arise where evidence relating to character has been adduced which, if accepted by the jury, could properly be relevant or probative in determining whether guilt has been proved. That after all is the basis of its admissibility. The evidence, which must be of a general rather than a particular nature, may be expressly directed to either credibility or propensity or both. Whether the evidence in any given case is of that description will be for assessment by the trial Judge.
When such evidence is adduced, an appropriate direction should be given as to its use. Generally that will cover both limbs of credibility and propensity. No particular form of words is necessary, and because of the variety in the circumstances in which the need will arise, the direction will no doubt be tailored to meet those circumstances. In general such evidence may be used in the overall determination of whether guilt has been proved, and to that end it may assist in assessing the credibility of an accused's pretrial exculpatory statements, evidence at trial, or both. It may also assist in diminishing the likelihood that the accused has committed the offence charged. As with any other evidence its weight will be a matter for the jury. The trial Judge may comment on the good character evidence (and any rebutting evidence) in a fair and balanced way, including its significance or lack of significance in the particular case.
[18] Significantly for present purposes, the lack of previous convictions was regarded as no more than a factor in assessing good character and, by itself was generally neutral since a person of bad reputation might well have no convictions. This Court did not consider it necessary for directions to be given to the jury merely because the absence of previous convictions had been elicited in evidence. However, in relation to good character evidence more generally, the difficulty of drawing a bright line distinction between the relevance of such evidence to credibility and propensity was recognised in both New Zealand and England.
[19] Counsel also referred us to R v M [2007] NZCA 217 where the failure to call character evidence was a factor supporting a successful appeal against conviction.
[20] But all of these cases were decided prior to the commencement of the Evidence Act 2006. These earlier cases now need to be treated with circumspection, as it is plain from the Act itself, and from materials prepared by the Law Commission in the lengthy gestation period leading to the passage of the Act, that a clear distinction is to be drawn between veracity and propensity evidence in a way which has altered the previous approach under the common law.
[21] The Commission proposed a deliberate distinction between evidence of truthfulness and propensity in its preliminary paper Evidence Law: Character & Credibility (NZLC PP27 1997) at [6].
[22] The importance of establishing a firm boundary between the two concepts was later emphasised in the Commission’s report Evidence: Reform of the Law (NZLC R55 vol 1 1999). The Commission recognised at [155]-[156] that the two concepts might overlap but nevertheless proposed that the admissibility rules relating to each should be separate and distinct as a general rule.
[23] The Commission said at [152] of the same report in 1999 that while “evidence of character and evidence of credibility can be both of great assistance to the fact-finder, such evidence can also be of little or no relevance with the result that its introduction may distract the fact-finder from the real issues in dispute”. It observed that the “challenge is to strike a balance between making evidence of character and credibility available to the fact-finder if it is useful, and excluding such evidence if it is … of only marginal relevance”.
Veracity evidence
[24] The Evidence Act recognises the distinction recommended by the Law Commission although has adopted the expression “veracity” rather than “truthfulness”. For the present purposes, the relevant rules are prescribed in ss 37 and 38:
37 Veracity rules
(1)A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity.
(2)In a criminal proceeding, evidence about a defendant's veracity must also comply with section 38 or, as the case requires, section 39.
(3)In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a)lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b)that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c)any previous inconsistent statements made by the person:
(d)bias on the part of the person:
(e)a motive on the part of the person to be untruthful.
(4)A party who calls a witness—
(a)may not offer evidence to challenge that witness's veracity unless the Judge determines the witness to be hostile; but
(b)may offer evidence as to the facts in issue contrary to the evidence of that witness.
(5)For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.
38 Evidence of defendant's veracity
(1)A defendant in a criminal proceeding may offer evidence about his or her veracity.
(2)The prosecution in a criminal proceeding may offer evidence about a defendant's veracity only if—
(a)the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and
(b)the Judge permits the prosecution to do so.
(3)In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:
(a)the extent to which the defendant's veracity or the veracity of a prosecution witness has been put in issue in the defendant's evidence:
(b)the time that has elapsed since any conviction about which the prosecution seeks to give evidence:
(c)whether any evidence given by the defendant about veracity was elicited by the prosecution.
[25] Evidence about a person’s veracity may only be offered if it is “substantially helpful” in assessing that person’s veracity. This expression sets a higher threshold than mere relevance. Section 37(3) provides a non-exclusive list of matters a Judge may consider when assessing whether the evidence proposed is substantially helpful. While evidence relating to a person’s veracity may be positive or negative in nature, all the matters listed in s 37(3) are negative factors in the sense that they are all matters which would tend to indicate a lack of veracity.
[26] Of more direct relevance to the present case is s 38 which relates specifically to veracity evidence offered about a defendant in a criminal case. We note that to “offer evidence” is not limited to calling evidence but includes eliciting evidence by cross-examination of a witness called by another party: s 4(1) Evidence Act.
[27] In the case of veracity evidence about a defendant, different rules apply to the prosecution and defence. Subject to the substantial helpfulness test, there is no restriction on a defendant offering evidence about his or her veracity. However, the prosecution is subject to the further constraints identified in s 38(2).
[28] The prosecution may only offer evidence about a defendant’s veracity if the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue. The leave of the Judge is required. In considering whether to grant leave, the Judge may take into account the matters in s 38(3).
Propensity Evidence
[29] Propensity evidence is defined in s 40(1):
40Propensity rule
(1)In this section and sections 41 to 43, propensity evidence—
(a)means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is—
(i)1 of the elements of the offence for which the person is being tried; or
(ii)the cause of action in the proceeding in question.
[30] By s 40(3)(a), propensity evidence about a defendant in a criminal proceeding may only be offered in accordance with ss 41, 42 or 43.
[31] Section 42 (relating to propensity evidence about co-defendants) is not relevant for present purposes. Section 41 applies to propensity evidence offered by a defendant in a criminal proceeding about himself or herself:
41 Propensity evidence about defendants
(1)A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2)If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
(3)Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).
[32] When propensity evidence is offered by a defendant, there is no requirement that the evidence be “substantially helpful” as for veracity evidence but the general relevance requirement under s 7 applies.
[33] The prosecutor may offer propensity evidence under two separate provisions of the Act. First, if a defendant offers propensity evidence about himself or herself, the prosecution may, with the permission of the Judge, offer propensity evidence about the defendant. The second alternative is that the prosecution may offer propensity evidence about a defendant in a criminal proceeding under s 43 which provides:
43Propensity evidence offered by prosecution about defendants
(1)The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2)When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3)When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4)When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a)whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[34] Where the Judge gives permission to the prosecution to offer propensity evidence about the defendant under s 41(2), s 43 does not apply to the prosecution evidence: s 41(3). The provisions of s 43 require specific consideration of probative value and prejudicial effect such that the more general provisions of ss 7 and 8 will generally be subsumed.
[35] Section 43 now has no bearing on the present case since it only applies where the prosecution seeks to lead propensity evidence about the defendant as part of the prosecution case.
Is evidence of a lack of previous convictions to be treated as veracity evidence or propensity evidence?
[36] Mr Patel submitted on behalf of the appellant that his client’s absence of convictions was veracity evidence rather than propensity evidence. Mr Downs submitted that it was not clear that the absence of convictions was admissible either as veracity evidence or propensity evidence. If it were treated as veracity evidence then it would be difficult to conclude that the evidence would have been substantially helpful in assessing the appellant’s veracity. Secondly, he submitted it was not clear that the evidence was propensity evidence having regard to the definition which required that such evidence must tend to show a person’s propensity to act in a particular way or to have a particular state of mind (emphasis added).
[37] Under the previous law, evidence of the absence of previous convictions would have been relevant both to the appellant’s credibility/veracity and to the unlikelihood he would have committed the offences charged. However we consider the position under the Evidence Act 2006 is materially different. The Act draws a clear distinction between veracity evidence and propensity evidence and defines both concepts in specific ways. While the Act recognises there may be some overlap between the two concepts, the legislation specifically provides that evidence that is solely or mainly relevant to veracity is governed by the veracity rules and the propensity rules do not apply: s 40(4).
[38] In the present case, we do not consider that the appellant’s absence of previous convictions is evidence tending to show that he acts in a particular way in terms of the definition of propensity. Rather, we consider, as this Court did in Falealili, that such evidence is generally neutral. It follows that the evidence of the lack of previous convictions would not have been admissible as propensity evidence.
[39] We also consider, although with some diffidence, that, generally speaking, a lack of previous convictions will not be admissible as veracity evidence for two reasons. First, it does not bear on the appellant’s disposition to refrain from lying. A person with no previous convictions may be just as likely to lie or refrain from lying as one who has convictions (unless perhaps the convictions are for dishonesty or perjury). Secondly, even if evidence of a lack of previous convictions were regarded as veracity evidence, it could not have been admitted because it would not meet the substantial helpfulness test under s 37(1). It is essentially neutral in effect.
[40] If this view is right, then no miscarriage of justice has arisen, as, even if trial counsel had sought to elicit evidence from the officer–in-charge of the appellant’s lack of convictions, the evidence should have been ruled inadmissible. Even if our view is not right, however, we are satisfied that, in this particular case, no miscarriage of justice arose. That is because, had this evidence come in, then there would have been a strong likelihood that the Crown would have successfully sought to re‑open the question of whether it should have been able to call the evidence of the two female employees who had made complaints about the appellant. We refer to that in more detail below.
[41] Our views on the ability to elicit evidence of a lack of previous convictions should be considered tentative. This is a difficult issue and would warrant attention by the permanent court at an early opportunity.
The failure to call character evidence
[42] It is common ground that the issue of calling witnesses to provide character evidence was discussed prior to the trial by the appellant and trial counsel and that the appellant understood the final decision was his. It is also common ground that the appellant accepted Ms Dyhrberg’s advice that character evidence should not be called. So the first point is that Ms Dyhrberg acted in accordance with her instructions.
[43] Of course, that is not the end of the matter since if a decision taken on counsel’s advice gives risk to an appreciable risk of a miscarriage of justice, a new trial may be ordered. But for the reasons which follow we consider Ms Dyhrberg’s advice was appropriate and that no risk of a miscarriage arose.
[44] Ms Dyhrberg explained in evidence that she was usually reluctant to call evidence of a general nature about the accused’s good character because it did not usually materially assist the jury in its deliberations. Ms Dyhrberg said specific character evidence, such as the appellant’s behaviour towards women, would have risked serious damage to his case for two reasons. First, the appellant had told her about some of his behaviour towards his female employees which he considered acceptable but Ms Dyhrberg considered was not appropriate. Although there was some dispute about what was said on this issue, we accept the general tenor of Ms Dyhrberg’s evidence on this point.
[45] Secondly, Ms Dyhrberg was concerned, very properly in our view, that if character evidence were called, there was a real risk that the Crown would seek to cross-examine those witnesses on the basis of the propensity evidence earlier excluded and would seek, if necessary, to call the rebuttal witnesses.
[46] The appellant placed evidence before us of letters from three people which he said were available to give character evidence. Two of these were from former female employees at the appellant’s store and the third was a member of the RSA in the appellant’s town. The two former staff members spoke specifically of the appellant’s good conduct towards his staff. One mentioned specifically that the appellant had never acted inappropriately towards her and she had never heard complaints from other employees about improper behaviour by him.
[47] We have no doubt at all that if any of these witnesses had been called, the risks which Ms Dyhrberg foresaw would have become very real. In our view, there was a strong risk that the Crown would have been permitted to call the evidence from the rebuttal witnesses about the appellant’s inappropriate behaviour towards them.
[48] It may be difficult, as this Court observed in Falealili (above), to differentiate readily between veracity and propensity evidence since the two often overlap. We consider that evidence of the kind here discussed (the way in which the appellant behaved towards his female employees) is properly characterised as propensity evidence as defined in s 40(1)(a) and is not solely or mainly relevant to veracity in terms of s 40(4). On this basis, there was a high risk the Crown would have succeeded in an application under s 41(2) to call the rebuttal evidence.
[49] Mr Patel submitted that the character evidence could have been confined to evidence of the appellant’s general reputation for honesty and integrity without risking the introduction of the rebuttal evidence. Three affidavits were produced to demonstrate the nature of such evidence.
[50] We do not accept Mr Patel’s submission. First, such evidence would have been treated as veracity evidence since it was called to bolster the truth of the appellant’s account to the police denying the alleged conduct had occurred. In that case, the appellant would likely have failed to establish the evidence was substantially helpful under s 37(1). Even if he had overcome that hurdle, there was a substantial risk that the Crown would have been permitted to call the rebuttal evidence under s 38(2) with consequent damage to the appellant’s case.
[51] We conclude it has not been demonstrated that Ms Dyhrberg was in error. Indeed, we consider her approach to have been sound and that no miscarriage of justice has been demonstrated on this ground.
The window issue
[52] Regrettably the police did not prepare a plan and photographs of the premises as they were at the time of the alleged incident. Ms Dyhrberg instructed a private detective who prepared a plan and took photographs shortly after the incident. The appellant himself also took photographs but not until the weekend before the hearing.
[53] At trial, the plan prepared by the private detective and some of the photographs were produced as a defence exhibit during the evidence of the complainant. The appellant told us in evidence that some of the photographs produced were a mixture of those taken by himself and by the private detective. One of these photographs showed a small internal window adjacent to a door in the partition separating the shop from the office. The appellant was unable to say whether this photograph was one taken by himself or by the private detective.
[54] Under cross-examination, the complainant said she could not recall the internal window being in place at the time of the incident. In re-examination she was more definite it was not there at the time. Ms Dyhrberg conferred with the appellant during the trial and received instructions to call Marie Cartwright (a more senior employee) to give evidence. Ms Cartwright was clear that the internal window was in place at the time of the alleged incident.
[55] Mr Patel submitted that the issue of the window was important given the denial by the complainant of its existence at the time and given the defence case which was that the appellant would not have done what was alleged because of the risk of detection by other staff or by customers present in the shop.
[56] Mr Patel submitted that the evidence of a builder could have been called and this should have been done. The appellant deposes that the builder’s evidence was discussed with Ms Dyhrberg on more than one occasion prior to the trial and an affidavit has been submitted to this Court by the builder confirming that the window was in place at the relevant time.
[57] In the context of this trial, we do not consider there is any appreciable risk of a miscarriage having occurred in relation to the window issue. We accept the submission made by Mr Downs that the Crown did not allege there was no risk of detection. While the complainant’s evidence was that there was no-one in the office area at the relevant time other than herself and the appellant, it was undisputed that there were three other female staff in the store at the time as well as the appellant’s young son. The partitions separating the office from the public area of the store were not full height and there was evidence that it was possible to hear from the office what was going on at the checkout area outside.
[58] Importantly, the window in question did not face directly from the office to the checkout area at the front of the store. Rather, it was directed towards the rear of the store which meant that staff at the checkout area would not have been able to see through it into the office. The complainant’s evidence was that the other three staff were all in the checkout area at the time of the incident. It is possible that customers in the aisle at one side of the store may have been able to see through the internal window but a full view of the interior of the office would not have been possible unless someone approached close to it.
[59] Ms Cartwright was cross-examined by the prosecutor about aspects of the layout of the store and office but there was no direct challenge to her evidence about the window. It appears from the Judge’s summing up that the prosecutor referred to the window in closing but, in the context of this trial, we accept it was not a matter of major significance and that Ms Dyhrberg acted appropriately in having the photographs produced and calling Ms Cartwright to deal with the issue. While Ms Dyhrberg accepted that, in hindsight, it would have been better to have called the builder to put the matter beyond doubt, we do not consider that her failure to do so in this case has resulted in any material risk of a miscarriage of justice.
Conclusion
[60] For the reasons given, we conclude that none of the grounds of appeal, whether considered individually or cumulatively, would have given rise to any appreciable risk of a miscarriage of justice. Accordingly, the appeal against conviction is dismissed.
Suppression orders
[61] The interim order made on 17 June 2008 suppressing publication of the evidence and argument of the hearing of the appeal is extended until the appellant’s application for permanent suppression of appeal-related details, dated 25 June 2008, is determined. We also make an order prohibiting publication of this judgment until that determination.
Solicitors:
Crown Law Office, Wellington
0
0
0