THE QUEEN v KEITH NIGEL HOUGHTON [1999] NZCA 273 (23 November 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 371/99

THE QUEEN

V

KEITH NIGEL HOUGHTON

Hearing:	23 November 1999
Coram:	Richardson P Heron J Robertson J
Appearances:	J M Ablett Kerr QC and S K Barr for Applicant M T Davies for Respondent
Judgment:	23 November 1999

judgment of the court DELIVERED BY ROBERTSON J

[1] The applicant was committed for trial in the District Court at Dunedin on 63 charges of theft as a servant contrary to s 227(b)(ii) of the Crimes Act 1961, one of obtaining credit by means of a false pretence and one of using a document to obtain a pecuniary advantage.An indictment was presented involving 16 counts, 15 being representative charges under s 227(b)(ii) and the other a charge under s 229A.After further discussion there has been a subsequent indictment which has 11 counts alleging breaches of s 227(b)(ii) and one of s 229A.

[2] There was a pre-trial application for a change of venue upon the basis that it was expedient for the ends of justice that the matter should be heard outside of Dunedin.In a reserved judgment the application was refused. Mr Houghton seeks leave to appeal.

[3] The issue is governed by s 322 which provides :

[(1) Where any person is committed for any crime to appear at any sitting of the High Court or of a District Court (hereinafter referred to as the Court of committal), and it appears to a Judge or a District Court Judge (as the case may require) that it is expedient for the ends of justice that the person should be tried for that crime--

(a) Where the High Court is the Court of committal, at some place or at some sitting other than the place or sitting for trial to which he was committed, or at which he would in the ordinary course of law be tried; or

(b) Where a District Court is the Court of committal, at some District Court or at some sitting of the Court of committal other than the Court or sitting to which he was committed, or at which he would in the ordinary course of law be tried,--

the Judge, either of his own motion, or on application made by or on behalf of the prosecutor or the person charged, may by order, either before or after an indictment is [filed], direct that the person shall be tried at such place and sitting of the Court, or (as the case may require) by such Court and at such sitting of that Court (hereinafter referred to as the substituted Court), as he thinks fit.]

[4] The substantive factors raised in the District Court and repeated before us were :

[a] That the proceedings had received and would receive extensive media coverage.

[b] That as the University of Otago is the complainant in the allegations made against the applicant there is substantial risk that he would not receive a fair and impartial trial in Dunedin due to a personal involvement of a large proportion of potential jurors with the University.

[c] That the status of the Vice-Chancellor as a highly respected leader of the Dunedin community is such that there is a danger that his evidence would be given undue weight by a Dunedin jury.

[d] That because three of the prosecution witnesses are employees or ex employees of Westpac Trust which is of particular importance to Dunedin this may interfere with the ability to obtain a fair trial.

[e] That the proportion of Otago University students and staff among the potential jurors in itself creates a real risk that this applicant would not receive a fair and impartial trial in Dunedin.

[5] It is the applicant's case that the cumulative effect of these issues makes a change of venue appropriate.

[6] The applicant is the former Registrar of the University of Otago.The charges allege improper use of his corporate credit card through either purchasing personal items, withdrawing cash, or transferring funds from this credit card to his personal accounts without authorisation.The one charge under s 229A relates to the alleged inclusion of personal travel in a booking paid for by the University.

[7] The principles are well known and are not in dispute in this case (see R v Mayer-Hare [1990] 2 NZLR 561).

[8] There is no question that the Judge in the District Court apprehended the correct legal principle and noted that the proper starting point was that all other things being equal justice should be seen to be done in the community in which the alleged offending occurred.

[9] The Judge noted that there was little dispute as to what had occurred but the issue was whether there was deliberate fraud, not merely inadvertence or mistake.

[10] The District Court Judge assessed the factors which had been raised in support of the application and concluded :

(i) The publicity, in my assessment, has been relatively low key.The fact that the applicant was the Registrar of the University is certainly prominent but beyond that, it is essentially a case of reporting on the passage of the case through the judicial process.Furthermore, the charges, themselves, are not of the type that ordinarily would evoke any extreme, emotional response in the community.It is not, for example, a murder trial that might have generated considerable publicity with outpourings of public grief and outrage. Nor is it a case involving sexual allegations or drugs which are perhaps the other two categories most likely to arouse public sympathy or prejudice.

(ii) I accept Mrs Ablett Kerr's portrayal of the University in terms of its impact and importance to Dunedin.It is possible there might be some prejudice against the applicant that could arise.As against that, I would have thought that aspect can be adequately addressed by an appropriate warning to the jury. Furthermore, I assume that any money owing to the University would have been repaid by the applicant and so strictly speaking the idea of the University being a victim does not arise.

(iii) The jury trial ritual will mean that any prospective juror having any direct connection with the facts of the case should disclose that connection. That aspect can also be emphasised before the jury is empanelled.

(iv) Although I accept that the applicant held a very senior and responsible position within the University, it was not one of high profile.He did not have the same public profile, for example, as Dr Fogelberg.Even if he had enjoyed a high profile in the community, that in itself would not be a reason to grant a change of venue.There has to be something else beyond that.In any event, the likely conflict over conversations that might have taken place between Dr Fogelberg and the applicant does not present as being of any crucial significance.

(v) Mrs Ablett Kerr referred to the Westpac Trust being seen by the jury as a victim.I do not accept that proposition.The relevant accounts were with the bank but there was no loss suffered and the bank is hardly a victim.The evidence of the three employees of the bank is not contentious and I therefore do not understand how any undue weight might be attached to it.

[11] He accordingly concluded that there was no real risk that the applicant would not receive a fair and impartial trial in Dunedin and consequently it was not expedient for the ends of justice to order that the trial be heard at a different venue.

[12] There was before us some contention as to whether the Judge misunderstood the factual position when he concluded the Bank had suffered no loss.Whatever the position we accept Mr Davies' submission that if there is any inaccuracy it is of minimal weight and does not go to the heart of the matter. As the Judge appears to have assumed, the case is about whether there were honest and reasonable mistakes.In these circumstances the identity of the victim, be it the University or the Bank, is largely immaterial and relatively peripheral to the substantial inquiry which the jury will have to undertake.

[13] We have listened with care to the forceful and interesting submissions made by Mrs Ablett Kerr but are not persuaded that there has been any indication of an inappropriate exercise of discretion, nor would we (had we been required to assess the matter afresh) have reached a different conclusion.

[14] The various issues which were raised and which required to be weighed have to be viewed with perspective and proportionality.

[15] It is interesting to observe that the various cases to which reference has been made have involved homicides, serious sexual offending or fraudulent activity of a type or scale where there is a real and substantial danger of sympathies being engaged or extreme reactions of prejudice emerging.In R v Parsons (CA 127/95, 19 July 1995) the Court noted :

More importantly, the possibility of prejudice arising from pre-trial publicity must essentially depend upon the nature and the extent of that publicity.On analysis, the present material does not, in our view, put this case into what could be described as the risk category.It is not one outside the ordinary experience of the New Zealand Court system and the national environment in which the system operates, and it will be assessed in that light by reference to its particular facts as disclosed by relevant evidence.

We are not persuaded that the Judge erred in principle in any way in reaching his decision.We are primarily for the reasons stated by the Judge, also drawn to the conclusion that a real risk that the appellant will not receive a fair trial in Hamilton has not been established.This is not a case which has generated local public prejudice and there is no concern that selection of impartial jury in Hamilton has been endangered.

[16] It is to be remembered that this is a case about whether a senior employee of a public organisation obtained benefits to which he was not entitled as a result of misunderstanding or error, or as a result of fraudulent activity. The total amount which is involved is not more than $24,000 and the sums involved in the actual counts less than $10,000.It would be immoderate to imagine that the future of the University of Otago or of Westpac (if either or both of them are actual or potential losers as a result of this being established as criminal) is a real possibility.

[17] We were told that the case is about the fact that there were mistakes in the system, slackness in administrative procedures and casual financial arrangements.It is not in dispute that money is owing although whether the applicant has the present resources to pay may be a different story.

[18] The importance to Dunedin and its environs of the University of Otago is not a direct issue.Whether Westpac through its community trust provides funding for good works and sporting activity is not a matter which could realistically have an improper effect upon a jury.Although the matter might engender some passing interest at the time, this is not a case in a category where outrage and indignation would interfere with a calm and independent exercise of judgment.It is simply not that sort of case.Available research suggests that juries are well able to undertake their task responsibly, calmly and objectively, uninfluenced by extraneous prejudice or sympathy.

[19] It is disturbing to note that this man having been arrested almost 12 months ago has still not been tried.The consequence of that delay will mean that any effect of earlier publicity will now be spent in any event. The reporting drawn to our attention was non sensational and was consistent with the nature of the allegation.There is an inevitable public curiosity about a senior official of a public authority allegedly having misused funds but the media has not sensationalised the matter.

[20] Mrs Ablett Kerr provided extensive affidavit evidence of the economic impact of the University of Otago on the City of Dunedin.She noted the total expenditure from tertiary education institutions and the number of persons employed in some way in the education sector.Fascinating and all though this material is, we are not persuaded of its relevance.It is to elevate the nature of the case and the very narrow focus of it to suggest that this ethos will interfere with the ability of a jury to make proper assessments of the evidence which is presented.

[21] While recognising the eminence of the Vice Chancellor within the local community we are unable to see how that will impinge in any material way on the determinations in this case.The conflicts which we are told will arise are commonplace and routine and could not sensibly deflect a proper assessment of the case.We find no substance in the allegation that because the bank involved was Westpac Trust (which provides major community sponsorship) could mean there was a likelihood that a goodwill engendered by the Bank's assistance might effect a trial being fairly heard.

[22] We agree that the public interest is always best served by ensuring that justice is not only done but manifestly seen to be done but that test must be applied in a sensible and realistic way.Like the District Court Judge we find no evidence of likely jury contamination in the circumstances and are not persuaded that anybody objectively assessing the factors would have any basis for concern about this trial being heard in Dunedin.

[23] We find no basis to intervene and leave to appeal is accordingly refused.

Solicitors

Crown Law Office, Wellington