Turner v R CA439/95 [1996] NZCA 385 (25 July 1996)

Last Updated: 13 December 2021

TURNER Keith Robert v R

_{Status Court of Appeal Judgments (Archive)}

Court of Appeal

439/95

25 Jul 1996

Eichelbaum CJ - Thomas J - Tompkins J

Appellant: Keith Robert TURNER Respondent: The Queen

Coram No.: 3

Appellant's Counsel: C W Bright Respondent's Counsel: P K Hamlin Filing date: 12 Oct 95

Hearing Year: 1996

Keytitles: Appeals against conviction, Offences, Property, Receiving, Miscarriage of justice, Unreasonable verdict, Evidence, Summing up, Omission, Unfair

Statutes: Crimes Act 1961 - Orig. Sentence: $800.00 fine Judgments: 43995

Appeal against conviction following jury trial - the court can direct a jury to select a foreman during trial - where the selected foreman is unable to act - duty to put the case of the defence in summing up - direction where witness has lied - should not refer to hypothetical reasons - no grounds for disturbing jury's verdict - appeal dismissed.

Appeal against conviction dismissed.

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.439/95}

_{THE QUEEN}

v

_{KEITH ROBERT TURNER}

_{Coram: Eichelbaum CJ}

Thomas J

Tompkins J

_{Hearing: 20 June 1996 (at Auckland)}

_{Counsel: C W Bright for Appellant}

P K Hamlin for the Crown

_{Judgment: 25 July 1996}

_{JUDGMENT OF THE COURT DELIVERED BY TOMPKINS J}

Following a trial before a jury in the District Court at Auckland over six sitting days in September 1995, the

appellant was, on 20 September 1995, found guilty of two charges of receiving. He was fined $400 on each charge. He has applied for leave to appeal against his conviction.

The application for leave was required because the appeal was not filed within time. It was filed within three weeks of the sentence. The Crown not opposing, the application for leave is granted.

Mr Bright advanced a number of grounds in support of the appeal. He submitted that if any one of them did not justify the grant of a new trial, the court should have regard to the cumulative effect of all of them in deciding whether a new trial should be granted. We approach these submissions on that basis.

The counts

The two counts in the indictment allege that the offences occurred between 21 August and 1 September 1994. The first count charges that the appellant received an unspecified number of LPG gas

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dishonestly obtained. In both cases, the Crown alleged that these items had been received from Matthew Bancroft when the appellant was the proprietor of the Green Acres Caravan Park at Mangere.

The foreman of the jury

The foreman of the jury was Richard David Goodall, described as being of 25 Hatherlow St, Glenfield, 1310, caregiver.

Mr Goodall ceased to be a member of the police force on or about 6 December 1994, some nine months prior to the trial. He had been the officer in charge of prosecutions at the Takapuna police station from 7 September 1992 to 6 December 1994.

Mr Bright accepts that there is no statutory prohibition on a former member of the police force, including one holding a relatively senior position, serving on a jury. But it was his submission that such a person being on the jury, particularly being the foreman of the jury, may well have given the impression to any interested observer that a miscarriage of justice may have resulted.

But for a factor to which we shortly refer, there may be some force in that submission. It is important that jurors and juries be seen to be impartial. In this country we do not permit the examination of individual jurors to ascertaining their background or other relevant information. But prospective jurors are invited to come forward if they consider that their being on the jury may be inappropriate. We would have expected that a relatively senior, recently retired police officer with a detailed knowledge of the prosecution process, would have informed the court of his previous role. Had he done so, it is probable that the Judge would have stood him down or one party would have challenged him.

However, Mr Bright informed us of a circumstance that significantly alters the effect of what occurred. On the second or third day of the trial - the trial did not commence until late on the first day so it must have been at an early stage - Mr Bright became aware of the fact that the foreman had been a senior police officer. He decided on behalf of the appellant, after taking advice from other experienced criminal counsel, to take no action. Had he objected to the foreman continuing, it is likely that the Judge would have discharged that juror and continued with the remaining eleven, on the grounds that, in the opinion of the court, that juror, because of his previous position, was incapable of continuing to perform his duty: s 374(3) of the Crimes Act 1961, or under the inherent jurisdiction of the court to govern its own processes to ensure the fairness of a trial: see R v Ryder (High Court, Christchurch T68/94, 28

September 1994, Williamson J). The court, again in exercise of its inherent jurisdiction, could then have directed the jury to select another foreman.

In R v Taumaunu (High Court Napier, T.44/94, 21 March 1995), the court, after referring to s 21, said that upon the discharge of a foreman it was too late to require the jury or the remaining eleven jurors to retire to choose a

the possibility that it could act under its inherent jurisdiction to direct the remaining jurors to select a foreman.

It has consistently been held that the court may exercise its inherent jurisdiction to supplement a statutory provision where to do so would be in the interests of justice and consonant with the purpose of the provision. It is a power which may be exercised even in respect of matters which are regulated by

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_{statute providing that the exercise of the power does not contravene any statutory provision: see R v Moke and}

_{Lawrence [1996] 1 NZLR 263(L) at 266-269. Section 21 of the Juries Act provides:}

"After the jurors have been sworn but before the case is opened or the accused is given in charge, the jury shall retire to choose a foreman."

It is clear from the wording used that, in enacting this provision, Parliament was concerned to ensure that the trial proper did not commence until the jury was empanelled and had selected a foreman. This requirement is different from certain North American jurisdictions where the foreman is not selected until the jury is about to retire. But nothing in this section itself relates to the selection of a foreman where, through reasons of illness or otherwise, the original foreman is no longer able to serve on the jury. To avoid the inconvenience and cost of a new trial, it is appropriate for the court to invoke its inherent jurisdiction and permit another juror to be selected as the foreman for the remainder of the trial. The exercise of the court's inherent jurisdiction in such circumstances can be seen to supplement s 21 without in any way contravening its terms.

In our view, counsel, in allowing the trial to proceed with knowledge of the position and without raising any objection, has effectively waived any right subsequently to contend that there is any risk of injustice as a result of the jury as constituted arriving at a verdict. The appellant has accepted the position as he or his counsel knew it to be.

The gas bottles count

Mr Bright submitted that the verdict of the jury on count one should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence.

This count in the indictment charged that the appellant:

"... between 21 August 1994 and 1 September 1994 at Auckland, received from Matthew Bancroft a number of 9 kg LPG gas bottles together valued in excess of $300, the property of Shell Heritage Park, Pilkington Motors and Drivers Service Station, having been obtained by a crime knowing at the time of receiving the same that they had been stolen or dishonestly obtained."

The case for the Crown rested substantially on the evidence of Mr Bancroft. He was 18 years old at the time. He

gave evidence of committing burglaries at a number of localities, including the three places mentioned in the count.

From each of those three places, he stole a total of some 40 gas bottles. He then proceeded to sell them. He learnt that the appellant was a possible purchaser. He went to the caravan park where he met the appellant. He described how on the first occasion he sold the appellant about six or seven gas bottles for $20 or $25 each. He said that those he sold looked similar to the gas bottles that were subsequently located at the caravan park. Later the same day, he returned and sold to the appellant another ten. He returned on a third occasion and sold the appellant approximately ten more. On each occasion the price was the same. He was paid in cash. He did not tell the appellant from where he had obtained them. On each occasion the gas bottles were taken from the car in which he had come, and placed into a shed adjacent to the appellant's house.

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This account of the events was almost entirely denied by the appellant. He accepted that on one occasion Mr

Bancroft sold him four gas bottles for $30, which he regarded as a very fair price. He said that he bought another

13 LPG bottles from a Mr Boyle who for some time had lived in a bus in the caravan park and was described by the appellant as a self employed trader buying and selling. He said he paid $35 per bottle and that having purchased them, they were placed in the lounge and the hallway of his house. They remained there for several says before they were put in the shed. When he bought these bottles from Boyle, he had no idea that they might not be legitimate.

The Crown called Mr Boyle as a rebuttal witness. He said he had never sold any 9 kg gas bottles to Mr Turner. He denied Mr Turner's evidence that he was a trader in second hand goods. He accepted that deductions had been made from his rent, but he denied that those deductions were for the purchase price of 13 LPG bottles.

The Crown called evidence from Mr Anderson. He had been involved in the burglaries with Mr Bancroft. He said he was with Mr Bancroft when they drove to the caravan park with a load of gas bottles. He described how the gas bottles were unloaded near the shed. This was at night. He did not see nor speak to the appellant.

The Crown also called evidence from Miss Vana Massey. She was, at the time of these events but was not at the time of the trial, Mr Bancroft's girlfriend. She described going to the camping ground with him on two occasions. On the first occasion they stopped near the house, on the second occasion near the shed. She saw Mr Bancroft talking to an adult male in the door of the appellant's house. She then saw Mr Bancroft and another man who was with them unload the gas bottles into the shed which the man from the house had unlocked. On the first occasion she thought there were about eight bottles. She could not say how many there were on the second trip but she thought there were more than eight. They were met by the same man. Again they unloaded the gas bottles from the car and put them into the shed.

The defence called evidence from a number of witnesses seeking to establish that at the relevant time, there were gas bottles in the hall and lounge of the appellant's house. It was submitted that this proved that Mr Bancroft's evidence that the gas bottles were unloaded directly into the shed could not be correct, and supported the appellant's evidence that he acquired the bottles from Mr Boyle.

Mr Bright applied for leave to call further evidence in the form of affidavits by the appellant and by Mrs Akeena

Ryan. Mr Turner deposed that he was not aware until after the trial that Mrs Ryan may be able to give evidence relating to Mr Boyle and the gas bottles. It was not until the night after the jury had delivered its verdict when she was in his house that she reminded him that she had been at the house when Mr Boyle delivered gas bottles there.

In view of the appellant's evidence, the Crown not opposing, we granted the appellant's application to admit Mrs Ryan's affidavit. She deposed that she was present in the appellant's house one morning during August or early September 1994. Mr Boyle, whom she knew, came to the house. After some discussion with the appellant who was also present, the two of them went to Boyle's car and unloaded at least a dozen or so large gas bottles. They were placed on the floor in the lounge and in the hallway. They were there for several days afterwards.

She states that if Mr Boyle had given evidence that he did not deliver any gas bottles to the appellant, that evidence was untrue.

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Mr Bright submitted that even on the evidence presented at the trial, it would have been unreasonable for the jury to do other but reject the evidence of Mr Bancroft, Mr Anderson, Miss Massey and Mr Boyle. He submitted that with the addition of Mrs Ryan's affidavit, Mr Boyle's evidence should be rejected and the appellant's evidence accepted.

We do not propose to detail the other submissions Mr Bright advanced in support of those contentions, nor review the evidence in further detail. The issue whether the appellant received gas bottles worth more than $300 from Mr Bancroft and, if he did so, he knew that they were stolen, are entirely issues of fact squarely within the jury's province. It was for the jury to decide whether, having regard to the conflicts in the evidence, the Crown had proved the charge beyond reasonable doubt. We are not persuaded that the jury's acceptance of the prosecution case is unreasonable. There was certainly evidence to support it. Nor do we consider that this conclusion is necessarily affected by Mrs Ryan's evidence. There was a very considerable volume of evidence that, if accepted, established that Mr Bancroft sold to the appellant a number of gas bottles on different occasions. That Mr Boyle is seen on one occasion to have been assisting in moving some gas bottles from a vehicle into the appellant's house, does not necessarily disprove the evidence of these sales.

The microwave count

Mr Bright submitted that the verdict of the jury on count two should also be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence.

This count in the indictment charged that the appellant:

"...between 21 August and 1 September 1994 at Auckland, received one microwave oven valued in excess of $300

from Matthew Bancroft, the property of Royal Oak Primary School, having been obtained by a crime knowing at the

time of receiving the same that it had been stolen or dishonestly obtained."

The case for the Crown again rested substantially on the evidence of Mr Bancroft. He said he committed a burglary at the Royal Oak Primary School, stealing a microwave oven. He described how he later went to the caravan park at about 9 or 10 one evening with two others who had been involved in the burglary. He met the appellant at his house. The appellant agreed to buy the microwave. Mr Bancroft was unsure of the price. He said something like $60 or $100 in cash.

Constable Ogilvy gave evidence of executing a search warrant at the caravan park on 1 September 1994. In the course of doing so, she located a microwave oven that was later identified as the one that had been stolen from the Royal Oak Primary School. It was in the kitchen of the appellant's residence, plugged in and turned on. It had recently been used. While she was recording the serial number of the microwave in her notebook, she asked the appellant who owned it. His reply was "I can't remember". This evidence was challenged on behalf of the appellant on the ground that that response had not been recorded in her notebook.

The appellant denied that he had bought the microwave oven from Mr Bancroft. He acknowledged that he was approached by Mr Bancroft late one morning with an offer to sell the microwave, but he said he was not interested. He said that he understood the microwave had been bought

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from Mr Bancroft by Angelene Opie, the appellant's de facto wife. He accepted that he had been evasive when replying to the constable's question about ownership, saying that he did not want to incriminate his family.

The defence called evidence from other witnesses relating to the sale of the microwave. Pauline Goodwin said that she was present when Mr Bancroft was offering the microwave for sale and that he sold it to Miss Opie. Miss Opie did not give evidence.

In respect of this count also, therefore, there was a direct conflict of evidence. The competing contentions were fairly put to the jury by the Judge in the course of his summing up. In the course of its deliberations, the jury asked a question seeking a further direction on the significance of the microwave being found in the appellant's house, and asked for some of the defence evidence concerning the sale of the microwave to be read again. The question indicates that the jury was considering these competing contentions.

We do not consider that the jury's verdict, involving as it does the acceptance of Mr Bancroft's evidence, the inferences advanced by the Crown based on where the microwave was found, and the appellant's answer to the constable's question, is unreasonable. There was evidence, open to the jury to accept, that established the guilt of the appellant on this count.

Misdirection

Mr Bright submitted that in a number of respects the Judge failed adequately to direct the jury. It was his

submission that, taken together, they amounted to a material misdirection. We refer to each in turn.

Each charge separately

Mr Bright submitted that, although the jury was directed by the Judge to look at each charge separately, and the evidence in relation to each charge separately, in addressing the jury on the facts, the Judge fudged or blurred that direction in a way that will have led the jury to do the very thing that the Judge had directed they should not do.

There is no substance in this submission. On the contrary, the Judge, when referring to factual matters relating to either the gas bottle count or the microwave count, made it perfectly clear to which count the evidence to which he was referring, related.

The comment concerning Miss Opie

The Judge, when putting to the jury the evidence relating to the sale of the microwave, commented on the fact that Miss Opie had not given evidence. Mr Bright submitted that this comment was unjustified and amounted to a misdirection.

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To consider this submission it is necessary to have regard to the passage in its context. The following is the relevant portion of the summing up:

"In respect of count 2 there is a challenge, a direct challenge by the defence that Mr Turner received the microwave. Well you have to consider the evidence that the defence called on that. It was the evidence of Miss Goodwin who said that she was present when a male European came around and offered to sell a microwave and that Miss Opie, the appellant's de facto partner, bought it. You remember that transaction. Miss Goodwin said it took place out on the deck at the back of the house and you heard the evidence of Mr Devi who said that he was with the appellant recycling some rubbish when a male European came up and offered to sell Mr Turner a microwave which he didn't want. Well on that issue you may think members of the jury that the best evidence you could have heard about that would have come from Miss Opie and you heard evidence that she was available to be called and wasn't. It seems to me but it is a matter for you, that that would have at least been the best evidence. But in any event remember this. The definition of receiving includes possession and control jointly with another. This microwave on the evidence was found in the house jointly occupied by the appellant and Miss Opie. There was a conflict in the evidence as to whether it was on or operating or whatever at the time Constable Ogilvy and the other constable came upon it but that may or may not be of any relevance but you may think the evidence that it was found in a house, jointly occupied by both of them, which would assist you in deciding whether the appellant was in possession or was exercising control over that microwave in this house jointly occupied by them both."

We have emphasised the two sentences containing the comment to which objection was taken.

In support of his submission that this comment amounted to a misdirection, Mr Bright drew attention to s 366(2) of the Crimes Act 1961, which provides that where a person charged with an offence refrains from calling his wife or her husband, as the case as may be, as a witness, no comment adverse to the person charged shall be made thereon. Mr Bright submitted that although the statutory prohibition did not apply in the present case as Miss Opie was the appellant's de facto wife, any adverse comment on her not being called by the appellant was just as objectionable as it would have been had she been his legal wife.

Depending on the circumstances in any particular case, it may be appropriate for a Judge to draw the jury's attention to the fact that an apparently available and relevant witness has not been called by the defence. We agree with the approach adopted by the Court of Appeal in England in R v Gallagher [1974] 3 All ER 118, 124. Megaw LJ, delivering the judgment of the court, said:

"... it is permissible for a judge in an appropriate case to tell the jury that they are entitled to take into account the fact that a potential witness who has not been called has not indeed been called. It is of course clear that in making any such comment, the judge must exercise care, just as a judge has got to exercise care when he thinks it right to make a comment in respect of the failure of a defendant himself to give evidence at the trial. But in the view of this court, it would be wrong and inappropriate to seek to tie the hands of the trial judge by laying down or attempting to lay down any particular formulae, because it must depend essentially on the infinitely varying facts of different cases."

Megaw LJ commented on why caution must be exercised in making any such comment: Page 8

"... in this sort of matter great care must be exercised to avoid the possibility that injustice may be done by leaving the jury under the impression that the failure to call a particular witness is something of importance, where in fact there may have been some perfectly good and valid reason why a witness should not be called, which would not bear on the jury's decision. But, as we have already said, it is impossible to take the view that the failure to call a witness cannot in a proper case be a matter to be taken into account by the jury as a part of the whole of the material on which they have to decide."

In the present case, there is an obvious reason why the defence may have decided that Miss Opie should not be called. If she gave evidence that she bought the microwave from Mr Bancroft, she may well have incriminated herself by giving evidence upon which she could have been charged with receiving. That possibility, taken together with the nature of her relationship with the appellant, provided an understandable reason for the defence not calling her. In these circumstances, the Judge ought not to have made the adverse comment that he did.

But when regard is had to all of the circumstances, particularly the finding of the microwave at the appellant's

house in working condition, it was open to the jury to conclude that even if Miss Opie had purchased the microwave from Mr Bancroft, it was in the joint possession of the appellant and Miss Opie, and having regard to their relationship, the appellant would have been aware of how she acquired it and that she and therefore he, must have known that it had been dishonestly obtained. For these reasons we are satisfied that the comment did not amount to a material misdirection.

Failure fairly to put the case of the appellant

Mr Bright submitted that the Judge failed adequately to put to the jury the defences raised by the appellant.

In his summing up, the Judge dealt with seven elements that the Crown was required to prove. In respect of each element, he referred to the Crown case and the defence case. Later he summarised the case of the Crown and the case of the defence, referring in some detail to each of the principal contentions that had been advanced on behalf of the Crown and the appellant.

In R v Ryan [1973] 2 NZLR 611, Richmond J, delivering the judgment of this court, observed that just how far a Judge need go in order to discharge the duty to put the defence to the jury, was a question which is difficult to answer in a way which is applicable to all cases and all circumstances. Each case must be judged having regard to its own particular facts. He referred to the remarks of Lord Goddard CJ in R v Clayton-Wright (1948) 33 Cr App R

_{22, 29 that the duty of the Judge is adequately and properly performed if:}

"... he puts before the jury clearly and fairly the contentions on either side omitting nothing from his charge so far as the defence is concerned of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else."

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This and other authorities on the requirement to deal with the defence case in a summing up have recently been considered by this court in R v Foss (CA 575/95, 2 July 1996).

One matter raised by Mr Bright was the date on which any receiving of the gas bottles by the appellant occurred. The count charged that the offence occurred between 21 August and 1 September 1994. Mr Bright submitted that the possibility of the offence, if any, occurring before that period, was not fairly put to the jury.

The manager of the Shell Heritage Park Service Station described a burglary on the night of 21 and 22 August

1994 when approximately 21 gas bottles were taken. In cross examination, he acknowledged that there had also been a burglary a week before when about the same number of bottles had been taken. Mr Bancroft said that he

took gas bottles from the Shell Heritage Park on two occasions. It is reasonable to infer that he was therefore

involved in both burglaries. In cross examination he said that the first time he went to the caravan park was the day after the first Shell Heritage Park burglary. However, he also said that after the second burglary, he sold approximately ten of the gas bottles stolen on that occasion, to the appellant.

The Judge put this possible defence to the jury in this way.

"The second element that the Crown must prove in respect of each charge is the dates between which the items were received, if you find they were, by the appellant. The dates alleged are the 21st August to 1st September

1994. ... However, there was some suggestion in Mr Bright's address to you yesterday that the dates in respect of count one may be at issue. He suggested to you that some of the gas bottles may have come from a burglary a week or so earlier, that Bancroft admitted. Well when you are considering that remember this. The count alleges that a number of gas bottles were received. If you were satisfied that some of them came from the second or later burglary and were in the appellant's possession between those dates then you may consider that that is sufficient proof of the dates by the Crown."

This put the issue fairly before the jury. It was for it to decide whether the Crown had proved the receiving by the appellant of a sufficient number of bottles during the time stated in the count.

Mr Bright referred to what we regard as a number of matters of detail that he submitted should have been the subject of express reference. We do not propose to review each. We are satisfied that the Judge did fairly put to the jury the real nature of the defences raised. It was not necessary for him to refer to every particular relating to each of those defences.

The summing up was weighted against the appellant

Mr Bright submitted that the summing up was weighted against the appellant in a number of respects. We have considered the reasons he advanced in support of that submission. We find it necessary to comment on only one.

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Mr Bright submitted that the Judge gave an inadequate direction on the issue of lies in regard to the evidence of Mr

Bancroft. What he said was this:

"Now a witness may lie for various reasons. A witness might lie to protect himself or herself from involvement in crime. Perhaps to save embarrassment, perhaps out of confusion, matters of that sort. Remember in this case Bancroft was quite open and said that when he was initially interviewed by the police he lied extensively and I think he said his first statement was "mostly lies". But he said that that was because there was an endeavour by him to minimise his culpability. Well take that into account. It may be something you can understand. Remember also that he admitted lying on oath at the depositions hearing and when asked why he said because he wanted to and

remember also at that stage it seems he had already been convicted and sentenced so if you accept that there

would be no issue in terms of him protecting himself and hoping perhaps for a better deal. What you have really got to decide is whether he lied to you from the witness box here the other day. In doing that, take into account his admitted earlier lying, the reasons he gave for it and in particular take into account his demeanour, what you saw and observed and what he said to you and it is for you to decide whether you find that he was lying here. You may find that in some parts he told the truth. It is a matter very much and entirely for you."

Mr Bright submitted that the appellant was entitled to a direction that if the jury felt that any of the material evidence given by Mr Bancroft at the hearing was untrue or unreliable, then it was very dangerous for the jury to accept anything that Mr Bancroft had said. If Mr Bancroft had lied on any significant element, the jury should have been told that nothing else that he said in his evidence should have been accepted. Mr Bright submitted that the direction was inappropriate because it enabled the jury to pick and choose their way through the evidence given by Mr Bancroft accepting parts and rejecting others. That, he submitted, was unfair to the appellant.

We do not accept these submissions. The judge pointed out to the jury that Bancroft had lied on more than one occasion. It was for the jury to decide whether Bancroft lied from the witness box on the important issues. The jury was entitled to reject part of his evidence and to accept part, if it considered that course was justified. The judge did not expressly say that the jury, in deciding whether Mr Bancroft's evidence on any matter of importance should be believed, should have regard to the admitted fact that he had lied on other occasions, but that is so obvious, it hardly needed saying.

In the passage in the summing up we have set out above, the Judge made a reference to the witness lying for various hypothetical reasons. Such a direction is appropriate where evidence establishes that an accused has lied, but the accused not having given evidence, no express explanation for the lies has been given. The direction is not appropriate in the case of a witness who will have had an opportunity to give an explanation, if there be one. In this case Mr Bancroft gave an explanation to which the Judge quite properly referred. There was no justification for making any reference to hypothetical reasons.

However, in the context of this case, and having regard to this passage of the summing up as a whole, the reference to hypothetical reasons does not amount to a material misdirection.

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Neither on this ground, nor on any of the other grounds referred to by Mr Bright, do we consider that the Judge's summing up was unfairly weighted against the appellant. It was a fair and balanced summing up.

Identification of informant

In the course of Mr Bright's cross examination of Constable Ogilvy, he asked her when she first discussed with Mr Bancroft the burglaries in which he was involved. As a result of an intervention by counsel for the Crown, there was a discussion with counsel in chambers. Counsel for the Crown informed the Judge that he was concerned that

there should be no questioning of the constable that may lead to the identification of a police informant. Mr Bright

submitted to the Judge that no restriction should be placed on cross examination relating to Mr Bancroft because his evidence was so crucial to the Crown case.

Mr Bright informed this court from the bar that without expressly prohibiting any particular question, the Judge directed that no questions could be asked which might lead to the identification of an informant. There is no record of this ruling. Nor was either counsel able to tell this court who was the informant to whom Crown counsel was referring. Mr Bright suggested we could assume that it was Mr Bancroft.

Even if the informant referred to were Mr Bancroft, we are unable on the information available to us, to find that there was any risk of a miscarriage of justice from the Judge's ruling. If Mr Bright had been permitted to cross examine Constable Ogilvy about burglaries other than those with which the counts in the indictment were concerned, that evidence would have no probative value. Further, the evidence would in any event have been inadmissible as hearsay. There had been no detailed cross examination of Mr Bancroft about other burglaries. There was some general cross-examination in which he admitted that he had faced some fifty charges, including burglaries. When he gave evidence he was serving a term of imprisonment for robbery. What the constable could say Mr Bancroft had said to her about those other burglaries would not be admissible evidence to prove his involvement in them, even if, in some way not apparent to us, that involvement had some relevance to the case.

Conclusion

For the reasons we have expressed, we are satisfied that the grounds advanced in support of this appeal, whether considered separately or cumulatively, do not justify interfering with the jury's verdict. The appeal is dismissed.

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_Solicitors:

Johnston Prichard Fee and Partners, Auckland for Appellant

_{Crown Solicitor, Auckland for Crown}

Appellant's Counsel: C W Bright

Respondent's Counsel: P K Hamlin

End of Document