THE QUEEN v JEREMY KREYL [2001] NZCA 256 (18 September 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca213/01

THE QUEEN

V

JEREMY KREYL

Hearing:	18 September 2001
Coram:	Elias CJ Anderson J Robertson J
Appearances:	J K W Blathwayt and L K McWilliam for Appellant M J Thomas for Crown
Judgment:	18 September 2001

judgment of the court DELIVERED BY ELIAS CJ

[1] The appellant is charged with 16 counts of dishonesty arising out of three different episodes.

[2] Counts 1-4 allege that the appellant received property from Bryan Te Kira knowing it to have been stolen.The police case is that this property was stolen on 16-17 July 2000 from a house at Carterton by Mr Te Kira.Counts 5-15 are further charges of receiving property from Mr Te Kira contrary to s258(1)(a) of the Crimes Act 1961.It involves property stolen between 6 April and 30 November 2000 from a property in Masterton.Mr Te Kira is a sentenced prisoner.In his evidence at the deposition hearing he said that he had stolen the property the subjects of counts 1-15 and had told the appellant that they were stolen.When the appellant was interviewed by the police he denied knowing that the property was stolen and claimed that he was told by Mr Te Kira that the property had either been given to him or that he had found it.

[3] Count 16 in the indictment is that on a unknown date between 1 March and 30 November 2000, the appellant conspired with Bryan Te Kira "to defraud the New Zealand Insurance Company by fraudulent means, namely agreeing to steal and burn out [the appellant's] Toyota Celica motor vehicle".This charge is laid pursuant to s257 of the Crimes Act 1961.In relation to this charge Mr Te Kira's evidence at depositions was that the appellant asked him to "burn out" the car so that he could recover the insurance.

[4] The appellant, in his interview with the police acknowledged asking Mr Te Kira to steal the car for an insurance job but said that he had changed his mind because "I thought it wasn't worth it".It should be noted that this is consistent with the evidence given by Mr Te Kira at depositions that Mr Te Kira did not take the vehicle immediately because the appellant "wasn't too sure about his insurance policy".Later he said the appellant told him that the claim was a "bit dodgey" and the car only worth $2,000 and that he no longer wished him to continue with the plan.The deposition evidence raises the question whether an application under s 347 should be made in respect of this count.That is not, however, a matter currently before us.

[5] The appellant applied to the District Court at Wellington for severance of count 16 from the remaining counts.The application was made in reliance on s340(3) of the Crimes Act 1961.On 21 June 2001 Judge Dalmer dismissed the application for severance and the appellant appeals that decision.

The decision in the District Court

[6] After reviewing the authorities, Judge Dalmer concluded that the offending was sufficiently related in character as to time, place and circumstances for it to be very much in the public interest that all 16 counts be heard together. Questions of credibility as between the two men were critical.At the time of the alleged offending both were in regular contact with each other.The Judge took the view that it was preferable that the jury look at the relationship "in the round rather than piecemeal".

[7] The Judge was also influenced by the fact that Mr Te Kira, as a serving prisoner, would find it less easy to give evidence on more than one occasion for the Crown as he would have to do if the counts were severed.Any risk of prejudice to the appellant could be met by appropriate directions from the trial Judge and in considering the issue of credibility, count 16 had "strong probative value which far outweighs any prejudicial effect from the accused's perspective".The balance tilted in favour of the Crown not because of any attempt to establish propensity, but rather:

to show that in relation to three separate incidents the accused has committed a number of crimes.It is for the jury to decide whether the Crown evidence is sufficiently strong to sustain these allegations.

The argument on appeal

[8] On behalf of the appellant it is submitted that the fundamental issue in relation to severance is to secure a just and fair trial (R v Solan (1900) 21 NZLR 217).The public interest and the problems Te Kira would face in giving evidence twice were not matters which outweighed the potential prejudice to the accused.Count 16 was submitted to have no probative value in relation to the other 15 counts.The evidence alleged is different in nature and there are said to be no similarities which might assist the jury to infer some system or pattern of conduct.The only common thread is that the person from whom the appellant is alleged to have received stolen property is the same person he is alleged to have conspired with to defraud the insurance company.

[9] It is submitted on behalf of the appellant that to treat that fact as probative is to allow evidence of propensity.There is insufficient connection in terms of time (some time during 2000 for the conspiracy) and place (the "job" was mentioned at the appellant's workplace whereas the receiving of the Carterton property appears to have been at the appellant's home and the receiving of the Masterton property appears to have been, on the evidence of Te Kira, at Oxford Street although later removed to the appellant's workplace). There is therefore, it is said, no recurring pattern of conduct.It is submitted that the accused may wish to give evidence in relation to count 16 but not the receiving charges and might be embarrassed in his defence if all 16 counts are to be heard together.

[10] The Crown submits in response that the two sets of offending were, as the Judge held, interconnected.As credibility would be the central issue at trial it was preferable that the jury look at the relationship between the two men "in the round".It would be artificial to separate the cases.The relationship between the two men was relevant to all counts so that the evidence in relation to receiving was probative in respect of the conspiracy charge:it was relevant that Mr Te Kira was known to be the type of person who would commit arson to effect a fraud when considering whether or not the appellant knew that the goods he received were stolen.

[11] The probative value of the evidence for the Crown is not directed to propensity but rather to the appellant's knowledge of Mr Te Kira's dishonesty. Both sets of offending involve dishonesty and property offending.Mr Te Kira was the principal Crown witness in relation to both sets of offending and it is submitted on behalf of the Crown that any possible prejudice could be dealt with by a standard direction from the trial Judge.

Decision

[12] The general rule is that provided for in s340(1) of the Crimes Act:

Any number of counts for any crimes whatever may be joined in the same indictment, and shall be distinguished in the manner shown in form 4 in the Second Schedule to this Act, or to the like effect.

[13] Severance may be ordered "if the Court thinks it conducive to the ends of justice to do so" (s340(3)).

[14] Pursuant to s340(6) no order can be made preventing the trial at the same time of any number of crimes involving dishonesty not exceeding five, if they have been alleged to be committed within 6 months of each other "unless there are special reasons".While this subsection does not apply to the present case because of the way in which the indictment is framed as to time, it is legislative recognition of a general connection between repeated crimes of dishonesty and the sense in having such charges dealt with together.The overriding consideration is the interests of justice.In assessing them the Court will take into account practical experience with trials in a commonsense way.Thus where "the allegations are interwoven or interconnected the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severance" (R v W [1995] 1 NZLR 548, 555 (CA)).

[15] In R v Christou [1997] AC 117, 129 (HL), it was recognised that the factors that the Judge will consider vary from case to case:

......but the essential criterion is the achievement of a fair resolution of the issues.That requires fairness to the accused but also to the prosecution and those involved in it.Some, but by no means an exhaustive list, of the factors which may need to be considered are: - how discrete or inter-related are the facts giving rise to the counts;the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity;and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together.In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully.Experience shows ......that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately.

[16] Severance will be ordered if injustice may result from a trial of all the charges together.

[17] The fact that evidence on one charge is admissible on the others, is a pointer to refusal of severance.Although that principle arises for application most commonly in cases of similar fact evidence, it is of general application.

[18] We agree that it would be artificial to sever count 16.The preparedness of Mr Te Kira to join a conspiracy to defraud the appellant's insurance company, if the evidence is accepted, is highly probative of the appellant's perception of his honesty and therefore the appellant's knowledge of any legitimate provenance of the stolen goods.The key issue in the receiving charges, on the appellant's police statements, is whether he believed the goods received from Mr Te Kira to be stolen.Similarly, the dealings between the appellant and Mr Te Kira, if dishonest intent is established in the receiving charges, is relevant to the confidence between the two to effect the dishonest purpose which is the subject of the Crown allegation of conspiracy to defraud.

[19] All transactions took place within a year - a relatively short timeframe. The submission that sufficient interconnection is shown because the receiving and the alleged conspiracy took place at different places, strikes us as quite unsound in the circumstances.What was important was the knowledge each man had of the honesty of the other.It is the relationship which is key. Severing the counts would deprive the jury of the full picture.No illegitimate prejudice will arise if the jury is properly instructed that it must not reason from guilt on one count to guilt on the others.The evidence of the relationship is however common to all offending and is properly probative in each.

[20] In those circumstances and in the absence of any illegitimate prejudice, the public interest in not incurring the expense of two trials and in minimising the strain upon the key Crown witness is also appropriately taken into account.

[21] In all the circumstances, we are satisfied that the Judge was correct to refuse severance.The appeal is dismissed.

Solicitors

Wollerman Cooke and McClure, Carterton, for Appellant

Crown Law Office, Wellington