The Queen v Shepherd
[2000] NZCA 228
•9 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA181/00 |
THE QUEEN
V
BEVERLEY ELAINE SHEPHERD
| Hearing: | 28 September 2000 |
| Coram: | Gault J Ellis J Robertson J |
| Appearances: | M J Thomas for Crown |
| G J King for Appellant | |
| Judgment: | 9 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ELLIS J |
An appeal against conviction on two counts of false accounting as an employee.
The prosecution evidence was that Mr Warmerdam, the proprietor of a veterinary clinic suspected the appellant, his receptionist, of stealing from the till. He arranged for his friends Mr and Mrs Coleman to make purchases which would be recorded by a video camera installed for that purpose. Mr Warmerdam provided the money for the purchases which were duly made and recorded. Mrs Coleman purchased two bags of pet food, one for $11.70 and one for $45. Mr Coleman purchased a bag of pet food for $19.95. However the amount of $19.95 does not appear on the till receipt for that day, nor does the $11.70. The defence was that Mr Warmerdam falsified the till receipts to set the defendant up so that he could sack her.
Mr Warmerdam gave evidence first. The transcript of his evidence comprises 29 pages in chief, cross-examination of 70 pages and re‑examination 15 pages. Two witnesses were interposed by consent during Mr Warmerdam's cross-examination and the evening adjournment was taken after 44 pages of the cross-examination. The cross-examination continued the next morning, and the prosecutor's re‑examination had all but finished by the morning break. During the break counsel for the appellant spoke to the prosecutor who said she had spoken with the complainant while he was under cross-examination. She said Mr Warmerdam had sought her out during the adjournment and she had spoken with him for an hour. She said he had been upset by the cross-examination and this and the re‑examination to come were discussed.
Counsel for the appellant saw the Judge in Chambers and the prosecution accepted she had been wrong to talk to the witness but nothing untoward had passed between them. Counsel for the appellant sought a discharge of the accused under s 347 of the Crimes Act 1961 claiming a mistrial and that a new trial would not cure the prejudice created. The Judge who had already heard the morning's cross-examination and re‑examination decided that a fair trial had not been prejudiced and refused the application. The trial then proceeded. There was a further short re‑examination of Mr Warmerdam. Counsel for the appellant did not seek to reopen his cross-examination to test what had transpired between the witness and the prosecutor.
Mr King submitted that the prosecutor's interview with the witness did prejudice a fair trial and this Court should now discharge the appellant.
The Rules of Professional Conduct for Barristers and Solicitors (both the 1998 and the 2000 editions) provides in R 8.05 that no practitioner engaged in a proceeding, civil or criminal, has the sole right to call or discuss the case with a witness. The commentary to the rule states:
A practitioner who calls a witness at a hearing may discuss matters with the witness at any stage up to the commencement of cross-examination. If discussion with the witness is sought during the course of cross-examination or re‑examination, this can only be permitted with the consent (for good reason) of the Judge and opposing counsel. This applies even during adjournments of the hearing.
It is plain that the conduct of the prosecutor was in breach of this prohibition. The basis of the rule is a little more explicit in its formulation by the editors of Cordery on Solicitors, 10th edition, at para 743:
A solicitor may interview and take a statement from any witness or prospective witness at any stage in the proceedings whether or not the witness has been called as a witness by another party. The solicitor must not tamper with the evidence of a witness nor try to persuade the witness, by the promise of a payment of money or otherwise, to withdraw or alter his evidence. The solicitor should not discuss the case with a witness while the witness is in the course of giving evidence.
The Code of Conduct for the Bar of England and Wales (Annex F rule 6.1.5) also is wider in its prohibition than the New Zealand rule as it extends to the whole of the time a witness is giving evidence. There are differences between what is expected of barristers and solicitors in England. For a fuller treatment see Halsbury's Laws of England (4th ed, vol 3(1), para 474).
In general terms the rule is designed to prevent the coaching or coaxing of a witness or the appearance of such. It follows that in the present case an hour long meeting gives ample opportunity for the prosecutor to direct, instruct or advise the witness. While there has been here an admitted breach of the rule, in our view the trial Court and this Court on appeal must inquire whether or not there has been a risk of a miscarriage of justice. It is not enough for an appellant simply to point to the breach.
There has only been one case on the rule found by counsel and our researchers have not revealed anything further. In R v Stevens (unreported, CA256/84, 20 August 1987) this Court was considering a case of trial by jury involving an expert witness giving evidence as to the correspondence between blood prints made by the soles of shoes. The witness changed his ground on one aspect of the matter under cross-examination. He was pushed hard by defence questioning and asked to produce the prints he and his assistants had made in tests. He became very upset and appealed to the prosecutor for help. There was an adjournment during which he was persuaded by the prosecutor to hand them over and his evidence continued the next day. Defence experts did not challenge the evidence relating to the prints themselves although there was a direct conflict between the experts on the scientific evidence. On appeal the verdict was challenged as against the weight of evidence, and on the ground that the prosecutor had spoken with the witness during cross-examination. Casey J delivering the judgment records the challenge in these words:
Counsel informed us that after his outburst in the witness box they adjourned to the Judge's Chambers and Mr Kaye then offered to talk to the witness privately in order (as he put it) to calm him down and persuade him that the material had to be handed over. He said he observed that this would be contrary to the normal rules about cross-examination, but the Judge accepted his offer in the absence of any objection from Mr Harder. The latter said they were shut in Crown Counsel's office for some 25 minutes and refused to answer the knocking and enquiries from him and the Registrar.
After they emerged the experimental prints made by Mr Groom were handed over and the trial was adjourned to the next day to enable these to be examined. His cross-examination resumed and lasted all morning. Its tenor was very much in keeping with what had gone before and there is no indication in the record that he had in any way re‑shaped or firmed up his attitude as a result of his discussions with Mr Kaye. The latter informed us that the whole time in his room was spent in calming Mr Groom, allaying his suspicions of the defence experts and persuading him that they were entitled to see his material. We agree with Mr Harder that what took place must be regarded as quite unusual. For Counsel to closet himself with his witness for such a lengthy period was clearly unwise, because of the obvious suspicions it could generate. However, Mr Harder evidently did not see the matter as so serious that it warranted a complaint to the trial Judge at the time or afterwards. In the light of Mr Kaye's assurances that nothing untoward took place, we do not think this episode calls for any response from us, beyond affirming the accepted practice that Counsel may not speak to his own witness while he is under cross-examination, without the leave of the Judge.
Mr King sought to differentiate the facts of Stevens from the present and it is plain that in the present case neither the Judge nor defence counsel were consulted by the prosecutor prior to speaking to the witness. The interview was much longer, one hour compared to 25 minutes and the witness was an expert, not the complainant. In our view these are significant differences. The New Zealand commentary we have quoted envisages counsel speaking to a witness with consent of the Judge and opposing counsel. Further, an expert witness owes a duty to the Court to give independent evidence.
In Stevens the prosecutor was able to give his assurance that nothing untoward took place and the reason for the witness's upset was resolved and the prints produced. Further the prints themselves and the cross-examination about them was not the subject of a conflict of evidence in the case..
In our view the highly irregular conduct of the prosecutor in this case gives rise to a suspicion that the interview involves some encouragement of the witness and an opportunity for him to discuss his re‑examination by the prosecutor. This results in a situation where the prosecution must satisfy the Crown that no miscarriage of justice did in fact occur. Ms Thomas submitted that the lengthy cross examination during the morning after the interview and the lengthy re‑examination plainly showed that there was no matter of substance that could have been the result of anything that passed between the prosecutor and the witness at the interview, and there was ample scope for comparison with what had been said by the witness prior to it. Further she submitted that the very experienced trial Judge was plainly not concerned that the interview had interfered with the evidence in any way when he dismissed the defence application. This is reinforced by defence counsel taking no steps to re‑examine the witness.
Section 385 of the Crimes Act 1961 provides for the determination of appeals in ordinary cases and one of the grounds upon which a conviction can be set aside is where there has been a miscarriage of justice and further the proviso to subs (1) provides that notwithstanding the point raised in the appeal might be decided in favour of the appellant, the appeal should be dismissed if the Crown considers that no substantial miscarriage of justice has actually occurred.
The proper approach to a situation where conduct at trial may have resulted in a miscarriage of justice is discussed in Tuia v R [1994] 3 NZLR 553. Tipping J said at pp 554 and 555:
The appellant argued through Mr Paino that there had been a miscarriage of justice within the meaning of s 385(1)(c) of the Crimes Act 1961. In R v Bates [1985] 1 NZLR 326, when addressing the question whether the appellant had shown a sufficient miscarriage of justice, this Court spoke of a perceived risk of injustice objectively viewed and asked whether there was a suspicion on reasonable grounds that the point at issue may have influenced the verdict. In R v Tinker [1985] 1 NZLR 330 this Court said it felt sufficient concern that a miscarriage of justice may have occurred to conclude that the conviction ought not to stand. In R v Forrester [1985] 2 NZLR 85 this Court said that if the irregularity could have occasioned a miscarriage of justice it would be unsafe to let the verdict stand.
And later:
As the authorities mentioned and others demonstrate, in order to succeed on the miscarriage of justice ground, the appellant does not have to establish that there actually was a miscarriage of justice. All the appellant has to do is to satisfy the requirements of the authorities already cited. If the appellant can get that far the only way the Crown can succeed in holding the conviction is to satisfy the Court that no substantial miscarriage of justice has actually occurred. It will, in ordinary circumstances, be unlikely that after the appellant has shown a perceived risk of injustice the Crown will be able to demonstrate that nevertheless no substantial miscarriage of justice has actually occurred. However, as this case shows, the Crown may wish to try.
In this case the situation arose which gives rise to suspicion that a miscarriage of justice may have occurred. It is therefore necessary for the Crown to show that it has not.
We asked Mr King if he could point to any passages in the transcript that showed any signs of the effect of the meeting. He pointed to two passages which it is unnecessary to set out. The first involved a failure to answer a question directly. The question was a challenge to the reason why the Colemans were asked to make the purchases and the answer was to offer another videotape showing a transaction being changed by the appellant. The extent of the cross-examination relating to very simple transactions gave ample scope for frustration and unsatisfactory exchanges between counsel and witness. The substance of the point was a clear variance between Mr Warmerdam's evidence that he was conducting a check on customer service and the Colemans later saying it was to see if employees were stealing from the till. That variance was established and before the jury in due course. The second was a passage where Mr King submitted the witness prevaricated. This followed a question and answer where the witness agreed that the appellant had rung him and then counsel invited him to expand on his answer if he wanted to, which he did at considerable length. It was about an incident quite collateral and only marginally relevant to the substance of the trial.
Since the hearing we have read the evidence of Mr Warmerdam and can find no grounds for suspecting that the meeting between the prosecutor and the witness had any effect on his evidence thereafter let alone one adverse to the defence. As we have said the transactions were simple ones and there was direct evidence from the Colemans of them and the evidence of the till printout. The balance of the evidence related to Mr Warmerdam's motives and credibility and his account of events did not change materially over the whole of his evidence. As a result we are satisfied that the irregularity, serious as it was, did not result in the possibility of a miscarriage of justice.
Mr King formulated other grounds of appeal. He submitted that the evidence of Mr Warmerdam as to the reason why he asked the Colemans to make dummy purchases was at complete variance with the reasons given by the Colemans. He challenged the pretrials ruling that Mr Warmerdam be permitted to give evidence by way of commentary on the video explaining the working of the till and the practice involving the cashier. He also challenged the evidence identifying Mr Coleman as one of the purchasers. These grounds were not strongly pressed by Mr King and we are satisfied they were jury matters and properly before it.
The appeal against conviction is accordingly dismissed.
Solicitors:
Richardson Chapman, Upper Hutt for Appellant
Crown Law Office, Wellington for Crown
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