The Queen v Davis [2007] NZCA 323 (27 July 2007)

Last Updated: 4 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA483/06

[2007] NZCA 323

THE QUEEN

Hearing:
Court:
Counsel:

TANIA DAVIS

24 May 2007

Wilson, Williams and Rodney Hansen JJ

A B Fairley for Appellant C L Mander for Crown

Judgment: 27 July 2007 at 9am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Rodney Hansen J)

R V TANIA DAVIS CA CA483/06 [27 July 2007]

Introduction

[1] The appellant was tried before Judge D J MacDonald and a jury in the District Court at Whangarei on one charge of altering a document with intent to obtain by deception a pecuniary advantage and seven counts of theft by a person in a special relationship. She was found guilty of the charge of altering a document and three of the theft charges. She was found not guilty of the remaining four charges of theft.

[2] The appellant had earlier been convicted following guilty pleas of two summary charges of theft from the same employer. Pursuant to a pretrial ruling, the Crown led evidence at trial of the two guilty pleas and introduced a statement by the appellant in which she admitted the thefts.

[3] The appellant appeals against her conviction on the ground that comments made by the Judge in the course of the trial in relation to the summary theft charges, coupled with his failure to direct the jury in relation to those comments, led to a miscarriage of justice.

Background

[4] The appellant worked at the Hikurangi Hotel from September 2003 to December 2004. Her duties included operating the cash tills and EFTPOS machine and clearing and refilling gambling machines. The Crown case was that the appellant took money when emptying and refilling the gambling machines. It was alleged that she attempted to conceal the shortfall by entering incorrect amounts when refilling the machines. She was not aware that the machines had a running "life balance" which enabled the owners to establish many of the alleged discrepancies.

[5] The two theft charges to which the appellant pleaded guilty were committed on 1 December 2004. On two separate occasions that day the appellant kept cash she

received from customers. She attempted to conceal her actions by not ringing up the sales on the till.

[6] On 21 December 2004 the appellant was interviewed by the police. Her statement as it related to the theft of money from sales was as follows:

The reason I left the hotel was because of the work environment. I made a few bad decisions, these included taking money from the business. This was from the middle of November 2004 to when I left on 1 December 2004.

The method I used to take the money from my employer was that I would not ring up sales on the till and take that amount of money. I cannot recall how many times I did this technique and obtained money but I don't think it would have been more than $600 over that two week period.

When I took the money during these times I put the money in my pocket, I did not hide it anywhere. There was no particular till I took the money from, and I also knew that there were cameras working in the hotel at the time of the theft...

Q In relation to charge nine, theft, the camera caught you not ringing

up sales on the till for beer sales and when your customer left you then returned and took the money out of the till and go into the chiller.

A Yes I did that.

Q How many times have you done this?

A I do not recall, it was over the two week period before I left the

hotel, but it was not an isolated incident, I did it a couple of times.

The trial

[7] At the trial, evidence of the two guilty pleas and of the statement was given by the officer in charge of the prosecution. The prosecution also introduced a series of still photographs taken from video monitors installed at the hotel. Some of these showed the movements of the appellant in and around the bottle store on 1 December. They were referred to by a prosecution witness as showing the thefts of cash which the appellant acknowledged in her statement.

[8] The appellant gave evidence. She was cross-examined on her statement to the police, including the passage relating to the theft of takings from beer sales. The prosecutor suggested to her that she may have stolen more from the till than the two

occasions she had admitted to. This phase of cross-examination concluded with the following question and answer:

Because now you want the jury to believe that the only times you took money by not ringing up sales was the twice filmed on 1 December, that's what you want the jury to believe don't you?... I want the jury to believe that I took money twice, I'm not actually sure that the photos that you have are the times that I took it, I know I stole twice, I admitted to that.

[9] At this point, the Judge intervened and said:

Well I don't follow that Mr Thomas, because my looking through this and the jury might have as well, there are photographs which intend to indicate she took beer three times on the 1st unless I've got that wrong, sections 7, 8, and 11, if you do the maths the first one's 1739, the second one's at 1816 and the third one's at 1834 and I thought she'd put these in here to show that she'd taken liquor 3 times without putting the money in the till, or is that wrong? Well maybe it might be helpful if Ms Davis says whether those are any or all of the times that she took them, the money on the first. Because the jury have got these you see and I've simply worked that out?

[10] A discussion then took place in Chambers in which the Judge reiterated his view that the jury could well conclude from the photographs that there were three occasions on which the appellant failed to account for beer sales. The prosecutor said he had interpreted the photographs as showing only two incidents of dishonesty. Matters were left on the basis that he would reconsider his position.

[11] When cross-examination resumed, the appellant was again asked how many times she took money from beer sales. It was expressly put to her that the photographs showed that she had taken money from the till on three occasions. The appellant was adamant that she had taken money on two occasions only. She maintained her position when questioned about what was shown in the photographs.

[12] In his summing-up, the Judge gave a full direction as to the way in which evidence of the offending on 1 December could be used. He warned the jury of the dangers of concluding that, because the appellant had admitted guilt on the two theft charges, she must be guilty of the other charges she faced. The Judge identified the features of the offending relied on by the Crown as common to all of the alleged offending. These included the appellant's knowledge of the cash handling systems for both retail sales and gambling machines and the shortfalls occurring when she

alone was on duty. He acknowledged the submission of defence counsel that there were no such common features of the offending and emphasised that the evidence should not be relied on for any purpose if jurors accepted the defence argument.

Submissions

[13] Mr Fairley submitted that, as a result of the Judge's intervention, the jury must have been left with what he described as "the overwhelming conclusion" that the Judge thought the appellant had committed three thefts on 1 December 2004. He said the Judge's failure to take any steps to correct that impression when summing up could have led the jury to make adverse credibility findings against the appellant. In his submission, the convictions were thereby rendered unsafe.

[14] In his written submissions, Mr Mander submitted that the evidence adduced at trial, particularly the combined effect of the appellant's statement and the photographs, cast doubt on the appellant's claim that she only took money from the till on two occasions. He said the Judge's intervention was in the nature of an inquiry in which he sought clarification of an issue not previously noticed. The matter remained in issue and the appellant was given a fair opportunity to respond to the suggestion that there had been more than two incidents of theft from the till.

[15] Mr Mander said the Judge's summing up in relation to the similar fact evidence conformed with the model approach outlined in R v Sanders [2001] 1 NZLR 257 (CA) at [17]-[23], and contained no misdirection (or non-direction) let alone a material misdirection, that is one which could have given rise to a verdict which the jury might otherwise not have reached: Timoti v R [2006] 1 NZLR 323 (SC) at [49].

[16] In oral submissions, Mr Mander said that he had been informed by counsel who prosecuted at the trial that the Judge ruled that the prosecution could rely only on two incidents of theft and that is the basis on which counsel addressed and the Judge summed up. In light of this advice, we invited trial counsel to confer and file a joint memorandum as to what occurred.

[17] Counsel have conferred and have filed a joint memorandum which records that there was a discussion with the trial Judge before closing. As a result of that discussion, counsel were directed not to address on the basis that the photographs may demonstrate that the appellant had taken money from the till on three occasions on 1 December 2004.

Discussion

[18] The Judge's summing up is wholly consistent with a direction having been made in the terms advised by counsel. His summary of Crown counsel's address makes it clear that the appellant's evidence in relation to the number of times she stole from the till, the amount taken and the period during which the thefts occurred, was challenged solely by reference to inconsistencies with her statement. The photographic evidence is not referred to at all in the context of the similar fact direction. There was, however, no specific direction to the jury to ignore the photographs when considering the similar fact evidence. The question is whether this could have led to a miscarriage of justice.

[19] The Judge's intervention quoted at paragraph [9] above focused attention on the issue for the first time. We do not think it can fairly be said to have conveyed that the Judge had taken a position on the significance of the evidence. He put the proposition as a question, concluding his observations on the photographs by asking "or is that wrong?". He then suggested that the appellant comment on the photographic evidence. When cross-examination resumed following the discussion in chambers, the appellant reiterated that she did not take money from the till on three occasions. She confirmed and explained her position when the photographs were put to her.

[20] The admission by the appellant in her statement was by far the most potent evidence that she understated the extent of her taking from the till in her evidence. At best, the photographs are evidence of a single further instance of theft on her last day at work, whereas her statement, on its face, refers to taking up to $600 on an unspecified number of occasions over a two week period. It is understandable that

the discrepancies between the appellant's statement and her evidence should have been the primary focus of cross-examination.

[21] In the circumstances, the Judge's decision not to refer to the photographs is not, in our view, a material omission. In the context of the similar fact evidence, the photographs had become a non-issue. Counsel closed on that basis and offered no objection to the Judge taking the same approach. The real contest in this area was whether the jury accepted the appellant's denial of further offending in the light of the admissions in her statement. That went to her credibility, and only incidentally to the extent of other offending. It was relied on for that purpose by the Crown, as appears from the following passage in the Judge's summing up:

[42] Equally Mr Thomas said she lied, well no she told the truth when she said in answer to questions that she was prepared to answer about the theft by pocketing money paid for goods, that it was for a much longer period of time than she admitted in the witness box. In the witness box she said it was twice. In her statement, Mr Thomas says, by any reading of it, she has admitted doing it over the last couple of weeks, up to about $600 worth. Does that help you in deciding whether you believe her or not. He took you through the similar fact evidence and the similarities that he relies upon that I have already covered. He said to you at the end of the day the Crown had proved the case in respect of each of the charges and you should find her guilty of all eight.

[22] The jury's verdicts show that the Judge's admonition against propensity reasoning was conscientiously respected and suggest that the appellant's evidence was rejected only when there was strong independent evidence of guilt. The appellant was found guilty of altering the balance on a tally sheet but on only three of the seven counts of thefts. As suggested by Mr Mander, it appears that the jury was prepared to find guilt on charges of theft only where evidence of the "life balance" on the gambling machines excluded the possibility that the discrepancies arose from human error. It is not suggested that there was insufficient evidence to support the guilty verdicts. In the circumstances, there seems no realistic possibility that the Judge's failure to advise the jury to disregard the photographic evidence when considering the similar fact issue, could have rendered the verdicts unsafe.

Result

[23] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington