Voss v The Queen
[2004] NZCA 296
•6 December 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA44/04
THE QUEEN
v
TREVOR ALAN VOSS
Hearing:23 November 2004
Court:Chambers, Baragwanath, and Goddard JJ
Counsel:C B Cato for Appellant
D J Colbert for Crown
Judgment:6 December 2004
JUDGMENT OF THE COURT
A The application to extend time to appeal is allowed.
B The appeal is dismissed.____________________________________________________________________
REASONS
(Given by Baragwanath J)[1] Mr Voss was found guilty by a jury in the District Court at Auckland on 8 September 2003 on two charges under the Biosecurity Act 1993. One was the disposal of unauthorised goods, a Green Naped Lorikeet bearing specified microchip and leg ring numbers, knowing that it was unauthorised goods. The other was that he had in his possession unauthorised goods, namely seven parrots bearing various microchip numbers, knowing that they were unauthorised goods. On 23 October 2003 the trial Judge, Judge Hobbs, sentenced him to concurrent sentences of 18 months imprisonment on each count with leave to apply for home detention.
[2] Notice of appeal against conviction and sentence was lodged within time in the District Court at Auckland but for some reason was not received by the Court of Appeal registry. The necessary application for leave to appeal out of time will be discussed after considering the merits of the appeal.
Background facts
[3] Like his father before him Mr Voss, who is now 64, had for many years been a breeder of exotic parrots which are highly prized and may sell for many thousands of dollars. Such was his reputation that his representations to the Ministry of Agriculture and Forestry led to the official registration of a quarantine facility which he established at his property at Glorit in Kaukapakapa. Its purpose was to enable him to import parrots from England into New Zealand. The quarantine was necessary to isolate imported birds for a sufficient period to ensure that they were not harbouring disease that might infect New Zealand species. Mr Voss was registered as operator of the registered facility and in May 1996 was granted an import permit for 200 parrots.
[4] The exercise was an expensive one relative to Mr Voss’ means. Before the project was embarked upon Mr Voss had a property valued at $526,000, cash of about $40,000 and a credit limit of some $90,000. The quarantine facility cost $170,000 and the 131 parrots and their freight cost a further no doubt substantial sum. Something over $1,000 was paid to the New Zealand supplier of 100 Trovan identification transponders contained in microchips for implantation in birds. Implanting tools and the charger for an electronic reader added a further $1,500. On top of those costs were return fares to England, quarantine facilities in England and veterinary costs in both countries.
[5] In May 1996 Mr Voss went to England to source the birds and arrange for veterinary tests including the taking of initial blood samples. In November 1996 Mr Alan Jones, a Sussex veterinary surgeon, attended quarantine premises in Hampshire where about 140 birds assembled by Mr Voss were held. It was Mr Jones’ function to check the leg ring or leg band on the birds, to insert the microchip identification device into each and to take samples including blood samples from each bird. Mr Jones anaesthetised each bird, noted its ring number, took out a pre-sterilised hypodermic needle loaded with a microchip the size of a grain of rice, scanned with an electronic reader the transponder embedded in the chip, recorded its details, and then using a special tool implanted the chip in the body of the bird. The gauge of the needle fitted into the tool was wide enough both to accommodate the chip and to make a penetrating hole through the skin of the bird. Depressing a trigger caused the microchip to be pushed through the hollow needle into the bird whereupon the needle was withdrawn and the skin pinched together, healing within 48 hours. There was an issue as to the precise site in the birds’ bodies into which the chip was placed. A second blood test was taken in England to check for chlamydia and psittacosis.
[6] 131 birds were included in the export shipment. Mr Jones deposed that each bird he examined had been ringed with either a U‑shaped ring which can be applied to a mature bird or a closed ring which can only be placed on a bird at about ten days old when the foot is small and soft enough to allow the ring to be slid over it. A schedule of the chip and ring numbers was supplied to MAF in New Zealand.
[7] When the birds arrived in New Zealand on 18 January 1997 they were met by Mr Dennis “Chip” Jones, a veterinarian employed by MAF who did not have expertise in relation to parrots. Having checked the identification numbers of the birds against the list prepared by Mr Alan Jones he oversaw their transit to Mr Voss’ quarantine facility and thereafter visited them regularly. He arranged for two further sets of blood samples to be taken from the birds. Mr Chip Jones was responsible for maintaining records of these events.
[8] During the quarantine period two of the birds were found to be suffering from Pachecos disease, which cannot be discerned until its symptoms emerge but is highly contagious. As a result, on 3 April 1997 MAF ordered that the whole of the consignment be destroyed. Mr Voss challenged the decision by proceedings in the High Court for judicial review which were ultimately unsuccessful. It appears that publicity concerning the matter led to concern by MAF that the facility might be broken into by parrot fanciers wishing to secure birds. So from 11 April 1997 MAF had a security guard placed outside the quarantine station. Mr Voss had a key and at all material times had the right to enter and exit the facility.
[9] From 11 April 1997 Mr Chip Jones visited the birds daily. The security was maintained until 27 June 1997 when the birds were destroyed by euthanasia administered by a veterinary surgeon, Ms Reid. It was not suggested that she had expertise in relation to parrots or did other than destroy the birds in succession as Mr Voss handed them to her. There was an issue whether, following Ms Reid’s departure from the facility, Mr Voss had and took the opportunity to remove microchips from the corpses of some of the birds before a MAF official, Mr McVicar, entered the facility and removed the birds.
[10] On 16 October 2000 a MAF investigator, Mr Hughes, took possession of seven parrots, three of which were of species that had been included in the shipment from England and contained the very microchip details referable to birds contained in the export shipment, which were supposed to have been destroyed. Further enquiries led to a search on 6 December 2000 of a property at Maungaturoto where Mr Voss was then living and the discovery of seven further birds, all of species described in the schedule prepared by Mr Alan Jones and each containing the microchip details referable to a particular bird of the identical species. In all, some 26 birds bearing the microchip details of birds that should have been destroyed and conforming with the species description noted by Mr Alan Jones in England were located in various places.
[11] Of particular importance was the Green Naped Lorikeet the subject of count 1 which, as well as the computer chip recorded as implanted in a bird of like description, bore a circular leg ring of the same number as the ring carried by the Green Naped Lorikeet imported from England.
[12] The Crown case was that, at some time before 27 June 1997, Mr Voss had switched some of the birds, removing from the quarantine facility some that he had imported from England and replacing them with similar birds, presumably from his New Zealand stock.
The defence explanation
[13] The explanation advanced by Mr Voss and his son Lloyd, who was called for the defence, was that following destruction of the birds on 27 June 1997 Mr Voss removed microchips from a substantial number of the corpses. Mr Lloyd Voss gave evidence that he had created a computer record of the species, sex, microchip identification number and, where applicable, ring number as well as location of each microchipped bird. Mr Voss deposed that, to save the effort of making further computer entries, he placed in each replacement bird of like species the chip taken from its predecessor. The explanation for the presence of the circular ring on the leg of what was said to be the replacement for the Green Naped Lorikeet was that that bird had been acquired young enough to allow the ring from its predecessor, removed from the leg of its corpse, to be utilised. While for the most part no leg ring number was noted in Mr Voss’ records, it being his practice not to ring birds, this ring was fitted at the behest of an unidentified prospective purchaser who for some reason insisted on having a ring and then changed his mind and decided not to take it.
Submissions on appeal
[14] Mr Cato advanced two arguments in support of the appeal
a)that the learned trial Judge wrongly undermined the defence case when he directed the jury that Mr McVicar’s evidence of entering the facility immediately after the veterinarian, Ms Reid, had left it after euthanising the birds had not been challenged; and
b)that the Judge failed adequately to direct the jury on the effect of rebuttal evidence called by the Crown on an issue of when Mr Voss completed or transferred a computer record on to a floppy disc.
[15] While not disputing the existence of evidence on which it was open to the jury to convict, Mr Cato argued that there was such weight in the defence case that this Court should not apply the proviso to s 385(1) of the Crimes Act 1961 in relation to the deficiencies alleged.
First submission: undermining the defence case
[16] Mr McVicar gave evidence in chief
Did you go into the building at that stage ?… Yes.
What happened when you got inside the building, what was happening in there ?… I got inside the building and Mr Voss and the veterinarian were underway with the slaughter of the birds. I could see that it was a fairly serious and sombre situation in there. I decided that there was little point in me standing, looking over their shoulder while the process was being completed, there was nothing that – that I could really contribute to the process so I left the facility, showering out of the facility and went back to the gate where Mr Redshaw was and we had general discussions until the vet came out some time later.
Would it be fair to say that Mr Voss was understandably upset at the process ?… Absolutely, that was the reason that I felt it was prudent not to – to you know just be standing around watching.
So from the time that you came back out of the facility, to the time when either Mr Voss or the vet came out of the facility, how long was that ?… The vet came out from memory around midday and I immediately went back into the building.
What happened when you got back into the building ?… When we got back – when I got back into the building, Mr Voss was in the building, the birds were all dead and we, the two of us, laid the birds out for counting, which that was the next step, was to count the birds.
[17] In cross-examination defence counsel (not Mr Cato) asked Mr McVicar
Immediately after the birds had been killed and before they were put in plastic bags you went out of the quarantine facility for a while didn’t you?
The witness responded
I don’t believe I did, I had no – the point is I had already been out of the building once while the birds were being killed but I then went back into the facility. Now each time you go out of a quarantine facility like that it requires showering out so that no infection is taken from the inside of the building to the outside, so having done that once I’m sure I would not have gone out again.
The cross-examination was taken no further.
[18] Mr Voss’ evidence in chief was
Mr McVicar… stayed until all the balance of the birds were euthanased and then as I remember it he went outside…
Did he go out before Ms Reid or after her?… After
…when Mr McVicar went out did he shower out?… Yes.
…have you got any idea what time that was?… As I remember it was about half 11… 12 o’clockish… I think it was an hour after that and Mr McVicar had come back inside.
…what were you doing in there during the period between when Mr McVicar left and when he returned?… I came across a bird where I felt a chip in the leg.
He then described removing what he described as 38 chips and a ring, that being from a Green Naped Lorikeet of which he cut off the foot.
[19] The passage in the summing up to which exception was taken read
There is also the evidence, the Crown says, as to how long the accused may have spent in the facility and the Crown reminds you that the evidence of Mr McVicar was that after Nicola Reid came out of the facility he went in immediately, and he said that not only in evidence in chief, but in re‑examination. So the Crown says to you that if you accept that evidence, and it was not challenged in cross-examination, then it would be impossible for the version of Mr Voss to be true. It is of some significance that the evidence of Mr McVicar was never challenge[d], because his evidence is that he only spoke a very few words to Ms Reid and then went straight into the facility. Now if you accept that is the case and that the accused did not have the time to do what he says, and the chips were not taken out of the birds, the Crown says the whole defence case is in tatters because the Crown says – and you may think this is not unreasonable – that would have been the only inference for Mr Voss to take the chips out of the birds. The Crown says to you that really that is the end of the defence and that you are left then with the only possibility that the birds were removed and substituted as the Crown alleges.
[20] The so called rule in Browne v Dunn (1893) 6 R 67 was stated lucidly by Wells J in Reid v Kerr (1974) 9 SASR 367 at 373-4, for which citation we are indebted to Mr Cato. It refers to two precepts. The first is that
…no witness should be attacked – and it is of prime importance that no party and no witness should think that it has happened – behind his back; he should have a fair opportunity of meeting whatever challenge is offered to his evidence…
The second
…is based on the practical needs of a trial under the adversary system: a judge (or jury) is entitled to have presented to him (or them) issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v. Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night.
[21] The last passage aptly describes what happened in this case. Cross‑examining counsel simply failed to give Mr McVicar any idea of the defence proposition that Mr Voss had been alone in the facility for long enough – he said an hour – to remove the 38 chips and ring from the corpses of the euthanased birds. By such failure trial counsel exposed his client to the very comment that the Judge made. The Judge was fully entitled to give the challenged direction. The first submission fails.
Second submission: failure adequately to direct the jury on the rebuttal evidence
[22] Mr Lloyd Voss confirmed his father’s account that chips from euthanased birds had been transferred to live birds from the Voss aviaries. He said that an initial computer record had been made of details of the imported birds. After removal of the chips from the euthanased birds he scanned their numbers and placed them in some 40 plastic bags. He then made a handwritten list of the birds from which the chips had been taken and their identification numbers. He and his father then caught a succession of birds, each proving to be of a kind which expert evidence showed matched the species description on the handwritten list, and installed the relevant chip in the bird, using a needle and applicator tool. Mr Lloyd Voss said he would bring up on the computer the information relating to the original, euthanased bird in which the chip had been inserted in England and then made a limited number of changes including location in the aviary, but retaining the original chip and species details. From that he produced a computer diskette or floppy disk which contained a record of the species, sex, microchip identification number, leg ring number (where applicable) and location of each bird. He deposed that the computer record had been created in 1998 and the information had been transferred to the diskette before Mr Voss’s bankruptcy and the repossession of the computer in which the information was generated.
[23] The Crown sought to challenge this evidence with rebuttal evidence from Mr Whale, an electronic forensic investigator employed by Customs, who expressed the opinion that although the information on the diskette appeared to have been originally written on 31 January 1998, the file creation date showed that it was not transferred to the floppy disc until 29 July 2003. But by that stage the original computer had been repossessed as a result of Mr Voss’ bankruptcy and so the creation of the diskette must have been contrived.
[24] The defence were given leave to call in response evidence from an information technology tutor, Mr Seale, who deposed that if the diskette had been created in 1998 but in 2003 was put into a computer with a later software programme, the effect of opening the document would be to modify the file creation date to the later date. Accordingly Mr Lloyd Voss’ evidence was consistent with and confirmed by that expert’s evidence.
[25] There was therefore a difference between the experts which it was necessary for the Judge to leave to the jury. He did so in summarising the Crown and defence cases. As to the former he said
…the floppy disk… was produced by Mr Lloyd Voss who told you [it] was created in August 1998… Mr Whale… said that the information on the disk was created on the 29th of July 2003, not August 1998. He said that was the date on which the file was placed on the floppy disk and that… this document seems to have been originally written on the 31st of January 1998… seven months after the parrots were euthanased on the 27th of June 1997.
As to the latter he said
It is the case for the defence that during the hour Mr Voss says Mr McVicar was away, he had time to remove the 36 chips from the dead birds as he has described. [Defence counsel] then told you about the evidence of the chips being reused in birds of either the same species or a species as close as could be attained and that these birds were then entered into the database created by his son, Lloyd Voss, by amendment to an earlier computer database. He referred to the evidence of Mr Whale [the Crown computer expert] and he said that the attempt to discredit the evidence of Lloyd Voss about the computer by Mr Whale was nullified by the evidence of Mr Seale [the defence expert].
[26] The evidence of the experts with which the trial concluded must have been fresh in the jurors’ minds and dealt with in the submissions of counsel. We are satisfied that in reminding them as he did of the respective arguments nothing more was required of the Judge in summing up.
The strength of the Crown case
[27] Having rejected both of Mr Cato’s submissions it is unnecessary for us to deal with his further argument that if we should find either established, the Crown case was not so strong that we should disallow the appeal by resort to the proviso of s 385(1) of the Crimes Act 1961.
[28] But having heard the evidence analysed in detail in the course of counsel’s submissions we record that we are satisfied that the Crown case was in fact very strong. That DNA comparisons might have been made of the English and New Zealand blood samples, if they had been retained, is of no relevance to the question whether on the evidence in fact led it was open to the jury to convict. It is sufficient to refer to the defence to the first count. It required that Mr Voss should have acquired a Green Naped Lorikeet from an alternative source, ringed it within ten days of its emergence from the egg and both located the microchip taken from its predecessor, loaded that in a needle and injected it in a position essentially consistent with the site employed by Mr Alan Jones, all for an unidentified purchaser whose predilection for rings led to its placing on the young new bird in the manner we have described. While there was some challenge to the proposition that the supposed substitute birds’ microchips were located exactly where they had been installed in the original bird of the same species by Mr Alan Jones, it was well open to the jury to find that no such difference existed. Mr Cato was wise not to attempt to argue that the jury could not reasonably convict on the evidence.
[29] No argument was advanced in support of the appeal against sentence. We recognise how disastrous the collapse of the venture was for Mr Voss. But given the dire consequences of spread of the avian disease the sentence was merciful.
[30] We give leave to appeal out of time but dismiss the appeal as to both conviction and sentence.
Solicitors:
Crown Solicitor, Auckland
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